The current struggle over the place of religion in American public life presents a paradox. At least by one measure, the country is less religious than it has ever been: Gallup reported recently that for the first time in its eighty years of opinion research, fewer than half of all Americans hold formal membership in a house of worship, and a third of the young-adult members of Generation Z—the cohort born in the late 1990s—claim not only no formal religious affiliation but no religious preference at all.
Furthermore, same-sex couples have won one of the major culture-war battles of our time, over their right to wed; the Census Bureau reports that more than a million Americans are now partners in same-sex marriages. Politically driven cases presenting religious objections to birth control ended up in the Supreme Court three times in the past seven years,1 but the fact remains that among people of all religious backgrounds, contraception is ubiquitous. More than 99 percent of American women between the ages of fifteen and forty-four who have had sexual intercourse have used some method of birth control, and nearly one in four American women will have an abortion during her reproductive lifetime.2
Yet amid these signs of a rapidly secularizing society, the country is awash in religiosity. The Trump administration not only cultivated religious conservatives as an indispensable part of its base, it essentially handed the federal government’s policymaking apparatus over to the religious right. Of the administration’s fifteen Cabinet members, as many as eleven regularly attended a weekly Bible study, sometimes in the West Wing, organized by a conservative Christian group, Capitol Ministries. Regulations and executive orders privileging religion over other claims poured out of the Departments of Health and Human Services, Education, Labor, Justice, even State.
One of the Biden administration’s early actions was to dismantle the Commission on Unalienable Rights, which Secretary of State Mike Pompeo had established to give priority to religious and property rights in the State Department’s annual assessment of other countries’ human rights records. “There is no hierarchy that makes some rights more important than others,” Biden’s secretary of state, Antony Blinken, said in explaining why he was abolishing the commission.
Although Biden’s victory in the 2020 election released the executive branch from the grip of Christian nationalism, the Supreme Court is not so easily freed. The Court’s majority, reshaped by three Trump-appointed justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—is reflexively choosing religious over secular interests, as exemplified by its two recent decisions favoring attendance at religious gatherings over restrictions imposed by state governments during the Covid pandemic.3 Early in the pandemic, cases began reaching the Court from churches objecting on the ground of religious freedom to governors’ orders imposing limits on attendance at indoor worship services. Before Justice Ruth Bader Ginsburg’s death, the Court twice deferred to the state authorities by a 5–4 majority. Weeks after Barrett was confirmed to replace Ginsburg, the majority flipped to strike down capacity limits in New York and later in California.
It is almost impossible to imagine a Republican-appointed judge or justice warning today, as Sandra Day O’Connor did in 2005, that “those who would renegotiate the boundaries between church and state” need first to answer a crucial question: “Why would we trade a system that has served us so well for one that has served others so poorly?” In that opinion, McCreary County v. American Civil Liberties Union of Kentucky, O’Connor was concurring in a 5–4 decision that declared unconstitutional a provocative display of the Ten Commandments in a Kentucky courthouse. “At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate,” she wrote. It was her last opinion in her last full term on the Court.
There is no doubt that the Kentucky Ten Commandments case would be decided differently today. Renegotiating the boundaries between church and state is the Court’s current project. Samuel Alito, who succeeded O’Connor in 2006, is leading the Court down the very road she warned against. He has been transparent about his agenda, declaring—against all evidence—in a speech to the Federalist Society last November, “It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.”
Today’s Supreme Court is no longer interested in maintaining Chief Justice William H. Rehnquist’s idea, put forth in his majority opinion in Locke v. Davey (2004), that the First Amendment requires some “play in the joints” between its two religion clauses. One of these clauses protects the “free exercise” of religion, and the other prohibits religion’s official “establishment.” The built-in tension is obvious: indulging a free-exercise claim can veer into religious favoritism, which itself can become a violation of the establishment clause. Rehnquist’s opinion in the Locke case navigated deftly between the two, holding that a state that provided scholarships for postgraduate study could include ministerial study without violating the establishment clause, but could also choose to exclude ministerial study without violating the free-exercise rights of would-be ministers.
In the rulings of the current Court, the dimensions of the free-exercise clause have ballooned, leaving the establishment clause all but effaced. The Court has already overruled Locke v. Davey in practice, in a school funding decision last summer written by Rehnquist’s successor, Chief Justice John Roberts, in which the Court found a free-exercise violation in Montana’s exclusion of religious schools from a state scholarship program,4 and it will probably overrule the 2004 decision formally in the near future.
What accounts for this paradox of religious ascendance over an ever more secular society? The asymmetry between the strategic single focus of the Christian right and the secular majority’s diffidence in confronting claims to religious privilege explains a good deal: political victory goes to those who try harder. That questioning someone about their religion is the last taboo in American society has been a gift to the religious right: the secular middle doesn’t know how to talk back or even how to frame the questions.
Over the past thirty years, Republican presidents have used seven vacancies to place six conservative Catholics on the Supreme Court—all but David Souter, in a line running from Clarence Thomas to Barrett. (I include Gorsuch, an Episcopalian who was raised Catholic and attended the same Jesuit high school as Kavanaugh.) But this striking fact—attributable to Republican presidents’ use of a nominee’s Catholicism as a proxy for willingness to overturn Roe v. Wade—has become an acceptable topic of discussion only recently, and then only barely.
Senator Dianne Feinstein was ahead of the curve in 2017 when she had the nerve to question Barrett, at the time a nominee to a federal appeals court, whether she would be able to detach her Catholic faith from her judicial decision-making. The California senator was berated so uniformly for this breach of norms that no Democrat dared to raise the religion issue during Barrett’s Supreme Court confirmation hearing last fall. The Democrats’ silence provided a grimly comedic air to the proceedings when Republicans like Lindsey Graham and Josh Hawley were left to spew their prepared sound bites aimed at defending the nominee from questions no one had asked. Hawley’s question deserved the grandstanding award, a competitive category in any confirmation hearing. “I’m not aware of any law or provision of the Constitution,” he began,
that says that if you are a member of the Catholic church and adhere to the teachings of the Catholic church or you have religious convictions in line with those of your church teaching, that you’re therefore barred from office. Are you aware of any constitutional provision to that effect?
But granting that religious activists on the right are better at politics leaves unanswered the question of what motivates them in the first place. Abortion? Gay rights? Public education? Katherine Stewart’s illuminating answer, in The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism,5 is that it is the secular state itself, the obstacle to establishing God’s kingdom on earth. According to Stewart, an investigative journalist, the goal is “dominionism,” a word all but unknown in secular society but very familiar on the religious right, which she defines as “the fundamental idea that right-thinking Christians should assume power in all spheres of life.”
From this perspective, Stewart argues, the culture wars are basically a false flag that has served primarily to distract mainstream Americans from understanding what Christian nationalism is really after:
It is not a social or cultural movement. It is a political movement, and its ultimate goal is power. It does not seek to add another voice to America’s pluralistic democracy but to replace our foundational democratic principles and institutions with a state grounded on a particular version of Christianity, answering to what some adherents call a “biblical worldview” that also happens to serve the interests of its plutocratic funders and allied political leaders…. This is not a “culture war.” It is a political war over the future of democracy.
This is a bold claim, but one that Stewart backs up with deep reporting on the religious right’s infrastructure. Some of the institutions and individuals she discusses are familiar, while many are not.
Stewart did much of her reporting during the 2018 midterm election cycle, attending meetings from coast to coast in churches and at conventions where the talk was all politics. She watched ministers receive instruction from Tony Perkins, the president of the Family Research Council, on how to get their flock to vote the right way without running afoul of the Johnson Amendment—a provision sponsored by Lyndon B. Johnson in the Senate and added to the tax code in 1954 that requires nonprofits, including churches, to refrain from political activity. While reference to it is likely to elicit blank looks from secular audiences, its repeal has long been a major goal of the religious right, where everyone knows it by name. Both Trump and Mike Pence, whom the president frequently sent out to address religious audiences, got cheers for their repeated promises to see to its repeal.
At a North Carolina barbecue for ministers sponsored by a Family Research Council affiliate called Watchmen on the Wall, Stewart heard Tami Fitzgerald, the executive director of the NC Values Coalition, advise the pastors on how to get around the provision: “I’m telling you, you can talk about issues all day long as a pastor, you can tell people who you’re going to vote for,” as long as the pastors simply refrained from publishing their political views in the church newsletter and declaring them from the pulpit. “A basic patriotic action step is to vote biblical values,” the organization reminded the pastors in a follow-up e-mail after the event.
The Johnson Amendment has yet to be repealed by Congress, but as Stewart points out, that hardly matters because “it has already been vetoed on the ground.” She notes:
The point of talking up the nonexistent horror of the Johnson Amendment, in fact, is to feed the sense of persecution that is so central to Christian nationalism today…. The narrative that government is stomping all over the rights of Christians and their churches may have little basis in fact, but it is one of the most powerful messages the movement has to drive voters to the polls.
The persecution narrative was the central theme of Justice Alito’s speech to the Federalist Society last November. I don’t think that Alito, Thomas, Gorsuch, Kavanaugh, and Barrett—the five justices who have twice voted to give worship services priority over public health—aim to replace American democracy with a Christian theocracy. Nor do I think that Stewart, whose book was published before these latest developments, would suggest as much. Nonetheless, Alito’s practice of what I have elsewhere called grievance conservatism6—conservatives’ belief that they are losing unfairly even when they are actually winning—is having a decided effect on free-exercise doctrine, with major implications.
A government policy that singles out religion for treatment that could be described as discriminatory needs an exceptionally strong justification to survive a challenge under the free-exercise clause. That has long been the rule, and there was nothing controversial about it—until recently, when conservatives on the Court started not only to see discrimination everywhere but to disregard the government’s explanation for why religion was being treated differently from some secular activities. In the Covid cases, the new majority simply discounted the distinction that the states made, in reliance on public health experts, between a worship service where congregants remain in close quarters for extended periods and a retail establishment where shoppers do their business and leave. In the majority’s view, as long as people were permitted to gather anywhere, capacity limits on religious worship amounted to unconstitutional discrimination.
The new majority’s inclination to find antireligious discrimination in every distinction maps onto the sense of persecution that Stewart documented in her travels through the land of the religious right. Whether any of the Supreme Court’s conservatives share the religious right’s goal of dominionism—or whether any justice has ever even heard that word—is beside the point. Rhetoric is driving doctrine. Alito’s brand of grievance conservatism is weaponizing the free-exercise clause, propelling the Court and the country into unknown territory where voices speaking up for the interests of the secular state struggle to be heard.
Alito’s persecution complex is most acute when it comes to same-sex marriage. He was a vigorous dissenter from the Court’s 2015 Obergefell decision, which recognized same-sex marriage as a constitutional right. In his dissenting opinion, he summoned a dystopian world where those who clung to the traditional view of marriage would be driven underground, outcasts from society’s new order. The decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” he warned.
I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
In his recent Federalist Society speech, he revisited this dire prediction and claimed that it had come true. “You can’t say that marriage is a union between one man and one woman,” he said. “Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.” I have no idea whether Alito has read Andrew Koppelman’s Gay Rights vs. Religious Liberty?: The Unnecessary Conflict or whether, if he has, he might take some comfort in the willingness of one of the legal academy’s most prominent advocates for LGBTQ equality to meet the other side halfway. “This book is written in a forgiving mood,” Koppelman writes. “I’ve worked very hard to create a regime in which it’s safe to be gay. I’d also like that regime to be one that’s safe for religious dissenters.”
Koppelman’s focus in this short book is on the particular problem posed by the refusal of Christian “wedding vendors”—bakers, florists, photographers—to provide to same-sex couples the same services they offer to the public at large. These business owners believe that they would be complicit in sin if they lent their talents to a celebration of a sinful union. In those states that include sexual orientation in their laws prohibiting discrimination in public accommodations, such a refusal is unlawful. To the Christian right, it is protected by the free-exercise clause. The issue remains unresolved. It reached the Supreme Court with considerable fanfare in the 2018 Masterpiece Cakeshop case, but the Court punted in an opinion by Justice Anthony Kennedy that construed an official’s passing criticism of religion as an expression of antireligious prejudice, invalidating the state’s finding that the baker had violated Colorado’s antidiscrimination law. The decision, anchored as it was to the purported facts of the case, settled nothing about the underlying issues and left neither side satisfied.7
The wedding vendor problem occupies only a small part of the landscape on which the religious right’s rearguard action against Obergefell is playing out. A case with broader implications, because it directly concerns the government as an actor, is now before the Supreme Court in Fulton v. City of Philadelphia. In that case, a Catholic social service agency, under contract to find suitable homes for children in the city’s custody, refused to consider married same-sex couples as potential foster parents. Philadelphia, citing a city ordinance that bars discrimination on the basis of sexual orientation, refused to renew the agency’s contract. The agency argues that its religious beliefs entitle it to disregard the legal obligation not to discriminate.8
Nonetheless, the wedding vendor cases have captured public attention as other cases have not, no doubt because it is easy to depict a conscience-driven small business owner, rather than the disadvantaged gay customers, as the real victim of discrimination. Jack Phillips, the self-described “cake artist” of the Masterpiece case, became a hero on the Christian right. Few people recall the names of the two men he refused to serve.
Koppelman is attentive to the humiliation and indignity of being refused service because of one’s sexual orientation. Nonetheless, he maintains that the gay community and its allies go too far when they draw an analogy between this kind of treatment and discrimination on the basis of race. His argument starts from the premise that while racial discrimination involves the systematic degradation of its victims and is generally recognized as such by society, this is not necessarily the case with a refusal to bake a cake for a same-sex wedding. The meaning of such a refusal is “not universally perceived,” he writes.
There is no reason to exclude the meanings that the Christian wedding vendors perceive in their business activity. This controversy has made clear that some people perceive such religious significance in their business activity that they are willing to endure large pecuniary losses rather than do what they think is wrong.
Koppelman’s persuasive argument about race is a novel and useful contribution to discourse on LGBTQ rights. To equate opposition to gay rights with racism is a “conversation-stopper,” he writes, that destroys any chance to engage and perhaps persuade. “The racism analogy is malign and destructive insofar as it leads Americans to regard their fellow citizens as hateful demons.” After all, Koppelman writes, “we are going to have to live together.”
Koppelman’s solution to the wedding vendor problem is to grant the religious exemption that the bakers and florists and photographers seek—but at a price. Vendors receiving an exemption would have to provide public notice of their refusal to participate in same-sex wedding celebrations. Such a requirement would serve a dual purpose. It would spare gay couples the humiliation of being turned away, since they would know in advance to take their business elsewhere. And it would deter vendors whose objections are the result of bias rather than religious convictions, since they would lose not only gay customers but others offended by a public acknowledgment of an intention to discriminate: “Those who feel they must do what their religion demands, even at great personal cost, have the strongest religious liberty claims.”
Koppelman’s project is to persuade us that the wedding vendor problem need not be seen as a “zero-sum clash of rights.” “Religious accommodation is a part of the reason for the success of the American regime,” he writes. A question his argument raises is whether not only his specific proposal but also the very notion of accommodation can be seen in today’s America as anything more than a noble thought experiment. It is hard to imagine that Stewart’s “power worshippers” would accept Koppelman’s advance-notice proposal as a victory. It’s easier to imagine that a jurisdiction adopting such a proposal as law would be promptly greeted with a lawsuit challenging the notice requirement as compelled speech in violation of the First Amendment.
The question mark in the book’s title, Gay Rights vs. Religious Liberty?, is obviously meant to suggest that this is no either/or proposition, but rather that we can have both. Whether this is so depends on how one defines religious liberty. In his introduction, Koppelman declares that “religious liberty is fundamentally about tolerating ideas we regard as odious.” That is one definition, but it’s not Samuel Alito’s. The loss Alito bemoans is not tolerance but triumph.
The book’s subtitle is, sadly, equally doubtful: “The Unnecessary Conflict.” Unnecessary, perhaps, seen from the ten-thousand-foot level. Here on the ground, “The Inevitable Conflict” seems more accurate.
—June 2, 2021
Burwell v. Hobby Lobby Stores (2014), Zubik v. Burwell (2016), and Little Sisters of the Poor v. Pennsylvania (2020). ↩
That number has remained consistent for years despite states’ persistent efforts to stigmatize abortion and make it more burdensome and expensive. The Mississippi case that the Supreme Court has recently accepted for decision could change the status quo by enabling states to ban entire categories of abortion. ↩
Roman Catholic Archdiocese of Brooklyn v. Cuomo (November 25, 2020) and Tandon v. Newsom (April 9, 2021). ↩
Espinoza v. Montana Department of Revenue (2020). ↩
See Diane Ravitch’s earlier review in these pages, January 14, 2021. See also Katherine Stewart, “The Real Meaning of ‘Religious Liberty’: A License to Discriminate,” nybooks.com, February 28, 2020. ↩
See my “Justice Amy Coney Barrett’s Choice,” The New York Times, December 3, 2020. ↩