A Life in the Law: Religious Liberty

Abstract

I am grateful to my friends and colleagues who organized and wrote for this festschrift. I have organized much of my work on religious liberty around the principle of substantive neutrality. Substantive neutrality attempts to integrate the whole cluster of Religion Clause values—neutrality, liberty, voluntarism, and separation. Substantive neutrality requires regulatory exemptions for religious conduct, but not when religiously motivated conduct aligns too closely with secular self interest, and subject to exceptions as needed to achieve compelling government interests. If government subsidizes the private sector to provide secular services such as education, medical care, or social services, substantive neutrality requires that the funds be distributed neutrally to religious and secular providers alike. And substantive neutrality requires that government take no position on religious questions. There should be no government-sponsored prayers or religious observances and no government-sponsored religious displays. I disagree with Mark Greenberg’s and Larry Sager’s paper, which argues that religious exercise should be protected only in parallel with protection for other serious personal commitments, under a principle of “equal regard.” Their position overrides constitutional text and ignores the substantial reasons why the Founders protected religious liberty as such. It is also completely unworkable, as they to some extent recognize.