How Great is the Threat to Religious Freedom, Really?

In “The Decline—and Fall?—of Religious Freedom in America,” Bruce Abramson writes that religious liberty is “under threat” from “an increasingly hostile and energized secular culture” that rejects “classical American liberalism.” In fact, the scope of the conflict he describes is at once more modest and potentially more sweeping than he describes. Let me begin with the former.

Abramson writes that throughout American history, “most legal scholars” believed the First Amendment’s “Free Exercise” clause protected a right of religious exemption from generally applicable laws—a classical liberal consensus that was upset by the 1990 Supreme Court decision in Employment Division v. Smith. That is an overstatement not only of the pre-Smith consensus but also of the classical liberal tradition, in which the notion of religious exemptions always sat uneasily. John Locke, in his Letter Concerning Toleration, opposed such exemptions. Following Locke, Thomas Jefferson maintained that while “the operations of the mind” may indeed not be subjected to “the coercion of the laws,” the “acts of the body” properly may be.

Because of this aspect of the liberal tradition, a purported constitutional right to religious exemptions has always been controversial. Justice Felix Frankfurter, who sided with the government in the flag-salute cases during World War II, wrote that as “one who belongs to the most vilified and persecuted minority in history,” he might be expected to prefer the more encompassing constitutional protection. But in a 1940 opinion that would later be quoted in Smith, he concluded that “conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”