Austin Dacey & Colin Koproske Reply

Dissent (Summer 2011), posted with permission

We are grateful for the historical and constitutional perspective that William Galston brings to his stimulating response. He does not dispute our charge that the present regime of religious accommodation rests on philosophically unsound arguments. Instead, he says this is irrelevant because “a philosophical question is not the same as a constitutional question.” But surely we should prefer a constitutional order based on defensible assumptions to one based on indefensible assumptions. If something like Eisgruber and Sager’s Equal Liberty approach is justified, then such an understanding of our constitutional order is available to us.

We argued against accommodation not just on philosophical grounds, but on the legal and moral grounds that it conflicts with the Establishment Clause, treats citizens unfairly, and violates individual rights. Equal Liberty insists that the treatment of religious practice under the law must be guided by principles of nondiscrimination, neutrality, and general liberty that apply to all citizens. By putting equal rights first, it interprets the Free Exercise norm in a way that protects the legitimate freedoms of the religious without privileging any claims of conscience simply because they are associated with “religion.” Thus, Equal Liberty brings greater coherence to the constitutional treatment of religion.

Galston fails to offer an alternative that addresses the problems of fairness and individual rights. He sees the wisdom in extending the zone of accommodation to secular moral claims in the Seeger and Welsh cases, citing the (suspiciously philosophical) rationale that in these cases, the convictions of conscience impose “binding obligations” that “shape individual identity.” Why won’t he follow us to the conclusion that the law should reflect the non-religious rationale for accommodation? Because, he says, “religion provides the paradigm for that zone.” This is not unlike saying that combat roles in the military should be denied to women—instead of being denied to anyone who is not combat-ready—because men provide the paradigm of combat-readiness. We well recognize that religion has a traditional monopoly on claims of conscience. That is precisely the problem.

There is little comfort in the assurance that the courts have been “perfectly capable of distinguishing legitimate and counterfeit conscientious claims.” With so many blanket, presumptive exemptions for those who claim affiliation with a mainstream religion, there is not nearly enough distinguishing going on. There is no reason to think that equality-based alternatives must run afoul of Scalia’s anarchy of conscience. The genuine worry over anarchy is that the “compelling state interest” standard is too high, not that we cannot distinguish between those citizens who deserve some relief from a burdensome law and those who do not. We do distinguish, and we must. But we must not do so merely in virtue of traditional religious affiliation.

The merits of an approach like Equal Liberty do not depend on its faithfulness to Madison. However, a plausible case can be made that Madison’s thought contains the resources to support it. His 1785 “Memorial and Remonstrance” attacked Patrick Henry’s proposed Religious Assessment Bill, which would have dedicated tax monies to the support of Christian denominations. Madison argued that in virtue of their natural rights, citizens retain “equal title to the free exercise of Religion according to the dictates of Conscience” (emphasis in the original):

Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to man, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens, so it violates the same principle, by granting to others peculiar exemptions.

The Framers’ attention to “Religion” was a wise response to the circumstances of their historical moment: the fresh memory of reli- gious war and the social necessity of presenting arguments persuasive to Protestant lawmakers. With the maturation of toleration and the proliferation of new ideologies, both religious and secular, this moment has passed. If we read Madison’s “Religion” so as to include only traditional theistic communities, then Seeger-style expansions would be anti-Madisonian. The alternative is to take Madison to be concerned with the space of liberty of conscience in which citizens pursue questions of ultimate meaning and value, a
domain that in his time happened to be roughly coextensive with the ranks of the major faith communities.

Call us unfaithful Madisonians, but we would like to think that the framers, in their unswerving attention to legal equality for minority viewpoints, would have responded to the astonishing and unpredictable explosion of religious and moral pluralism since 1785 by recognizing that the fundamental ideal at stake is not the freedom of the God-fearing but of all persons of conscience. We may owe to God our eternal obedience, but what we owe to each other is equal liberty.

William Galston Responds

Dissent (Summer 2011), posted with permission

Is religion “special”? Taking this as a philosophical question, we might conclude that it is not, that religion is a specific instance within a more general category of belief or commitment. But a philosophical question is not the same as a constitutional question. After all, the U.S. Constitution might explicitly affirm or implicitly reflect propositions that philosophical reflection would refute. If so, unfettered reason must give way to the law. Jeremy Bentham famously declared, “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense—nonsense upon stilts.” He might well be right. But that is not what the Framers thought, and it is their thought that governs us, unless and until we the people decide to discard or emend it.

The First Amendment unmistakably singles out religion for special treatment. Congress may not establish a religion, either by giving it a preferred institutional position or by using its distinctive doctrines as the basis for legislation. But far-fetched as it may sound, there is nothing in the Constitution to stop Congress from establishing a secular doctrine. For example, it can create and fund an economic board whose membership is restricted to Keynesians (or supply-siders), and it can base legislation on its preferred economic theory, even though many experts and ordinary citizens reject it.

There are many reasons why the first U.S. Congress embraced this distinction. Its members knew all too well about religious strife; they had no experience of civil or international conflict sparked by philosophical differences. They knew, as well, that the repression of religious differences had been characterized by exceptional cruelty and went to the core of individual identity. The man who drafted the First Amendment was the author of the famous “Memorial and Remonstrance,” which had placed each individual’s understanding of duties owed to the Creator above, or outside, the proper scope of civil law. Religious free exercise, said James Madison, was “in its nature an inalienable right.”

It followed that proposals to limit religious free exercise would have to discharge a heavy burden of proof. No one doubted, or doubts, the propriety of certain “time, place, and manner restrictions”: free exercise doesn’t entail the right to conduct a loud revival meeting in a residential neighborhood at 2 a.m. In such circumstances, religious noise is on par with secular noise.

But how far does this legal parity extend? No one would seriously argue that the claims of religious free exercise extend to human sacrifice (as opposed to animal sacrifice, which does enjoy First Amendment protection). There are some bedrock civil concerns that the law may enforce, regardless of their effects on particular religions. But for most of our national history, legislators and jurists distinguished between such concerns and the more typical objects of legislation, which were thought not to be so fundamental as to out- weigh religious free exercise. Despite the obvious importance of communal self-defense, many colonies exempted Quakers from serving in battles against the French and indigenous people, an exemption that some colonies continued during the Revolutionary War regarding the British. Madison and the members of the first Congress were well aware of this. Many legal historians disagree with the contention of the authors that the drafters of the First Amendment did not contemplate, and would have opposed, the regime of religious accommodation codified in Sherbert v. Verner.

Many episodes since the ratification of the First Amendment testify to the persistence of this concern—not only our draft laws, but also the least successful constitutional innovation in our history. The Eighteenth Amendment was ratified on January 16, 1920. It was widely understood that without the concurrent legislation authorized in Section 2, the general prohibition on the manufacture, sale, and transportation of alcoholic beverages, would be too vague to enforce. On October 29, 1919, the National Prohibition Act (popularly known as the Volstead Act), which created the legal definition of “intoxicating liquor” and specified penalties for producing it, passed over Woodrow Wilson’s veto and stood as the law of the land until 1933.

The Volstead Act created a number of exemptions to the prohibition regime, of which two are especially noteworthy. First, the act allowed physicians to prescribe liquor to individuals for medicinal purposes and to employ it pursuant to treatment for alcoholism in certified treatment programs. Second, the act stated that nothing it contained should be construed as applying to “wine for sacramental purposes, or like religious rites,” and it permitted the sale or transfer of wine to rabbis, ministers, priests, or an officer duly authorized by any church or congregation.

Suppose the act had not exempted physicians. The omission would have been subject to criticism on policy grounds, but no one would have suggested that it ran afoul of constitutional norms. If the act had failed to exempt wine for sacramental purposes, however, there would have been both a political firestorm and a First Amendment challenge that almost certainly would have succeeded.

The use of sacramental wine lies at the heart of more than one religion. The Code of Canon Law of the Catholic Church prescribes, “The most holy Sacrifice of the Eucharist must be celebrated in bread, and in wine to which a small quantity of water is to be added.” For its part, Jewish law (halacha) commands the drinking of wine during the Passover Seder, specifying not only the famous four cups but also a minimum quantity to be consumed. (There is no maximum.) Comprehensive prohibition without exemptions would have prevented faithful Jews and Catholics from behaving as their religion requires. The Constitution’s presumption in favor of free exercise is designed to reduce to an avoidable minimum the circumstances in which such clashes are resolved in favor of the state.

I don’t want to be understood as espousing an untenable literalism. Although religion is special, it is not completely distinctive. Starting in the 1960s, the Supreme Court has recognized (rightly, in my view) exemptions based on conscientious claims that are not strictly speaking religious. In United States v. Seeger (1965) the Court broadened the conscientious objector section of the draft law to include “sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by God of those admittedly qualifying for the exemption.” Five years later, in Welsh v. United States, the statute’s reach was further broadened to include explicitly secular beliefs that “play the role of a religion and function as a religion in life.” There are matters of conscience that, like religious claims, shape individual identity and are experienced as binding obligations. So yes, the zone of accommodation extends beyond religion. But it is religion that provides the paradigm for that zone.

Note that by advocating “freedom of conscience” rather than “freedom of religion,” the authors are intensifying rather than evading Justice Antonin Scalia’s concern (expressed in Employment Division v. Smith) that broad accommodation creates a system “in which each conscience is a law unto itself.” This is pure hyperbole; during the three decades that Sherbert was the controlling legal authority, our courts proved perfectly capable of distinguishing legitimate and counterfeit conscientious claims. I don’t understand why so many liberals have been attracted to Scalia’s rather Hobbesian argument, which flouts both the letter and the spirit of Madison’s thought. Indeed, it is a matter of record that Madison’s first draft of what became the First Amendment read, “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established; nor shall the full and equal rights of conscience be in any manner, or in any pretext, infringed.” What Scalia sees as Pandora’s Box, Madison regarded as the animating principle of our constitutional order. In this, as in so many other matters, we should remain faithful Madisonians.

(Read our reply to Galston here.)


William Galston is Ezra Zilkha Chair and Senior Fellow in Governance Studies at the Brookings Institution and College Park Professor at the University of Maryland. He is the author of eight books and numerous articles on political philosophy, public policy, and American politics. From 1993 to 1995, he served as deputy assistant for domestic policy to President Bill Clinton.

Against Religious Freedom

Austin Dacey & Colin Koproske
Dissent (Summer 2011), posted with permission

Controversy in the summer and fall of 2010 over plans for the construction of an Islamic community center in New York City near Ground Zero reminds us that America's legacy of religious freedom is by no means settled. Debates about the proper limits of religious freedom don’t arise only with respect to new Muslim populations. Even as conservative Christians seek to restrict Muslims' freedom, they allege that their own freedom is under threat from aggressive secularism: school administrators are infringing students' rights to pray and discriminating against creationist biology teachers. And atheists argue that their rights are violated when they are compelled to recite the Pledge of Allegiance.

As disparate as these views may be, they agree on the importance of religious freedom. And yet few of us have thought through its real meaning and implications. In fact, there are two quite distinct ideas that fly under the banner of "religious freedom." The first is that people have the right to practice a faith, consistent with the rights of everyone else. We think this is vital and unassailable. However, as we will contend, it is misleading to label this idea "religious freedom." The second idea is that religions deserve some special accommodations under the law that are not available to comparable secular institutions or commitments.

Traditionally cherished and unquestioned though it may be, this latter notion of religious freedom is philosophically unsound, legally incoherent, and morally indefensible. To make real progress in the conversation about church and state, we must give it up.

Paradoxes of accommodation

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The religion clauses of the First Amendment to the U.S. Constitution were perhaps the boldest and most novel assertions of the American experiment. Their formulators, Thomas Jefferson and James Madison, hoped "to keep forever from these shores the ceaseless strife that has soaked the soil of Europe with blood for centuries," as Madison put it. Neither man foresaw that the Free Exercise clause would come to mean what it does today: the "accommodation" of religion by granting practitioners a presumptive right to violate otherwise valid laws.

This is a relatively recent development. The seminal 1963 case Sherbert v. Verner concerned unemployment compensation for Adell Sherbert, a Seventh-day Adventist who was denied benefits under South Carolina law because she refused to take available suitable jobs. Sherbert felt religiously bound to reject such jobs because they would require her to work on Saturday, her Sabbath. The Court ruled in favor of Sherbert, granting her an exemption to the state law. This case, together with the 1972 decision in Wisconsin v. Yoder, set a far-reaching precedent: free exercise of religion entails that religiously motivated persons may disobey a valid and generally applicable law unless the government can demonstrate, first, that there is a "compelling state interest" in enforcing it and, second, that there is no alternative, less burdensome legislative means of pursuing this interest. In practice, this is a tall order, because a compelling state interest is considered more powerful than a merely "rational," “important," "valid," or "legitimate" purpose.

The 1980s and 1990s saw a series of judicial and legislative twists and turns, pivoting on the controversial 1990 case Employment Division v. Smith and the legislative backlash against it in the form of the federal Religious Freedom Restoration Act and similar state-level laws. Today, many areas of law in many states still operate within the Sherbert-Yoder framework. Statutory and case law tends to grant presumptive exemptions to the religious, typically making no provisions for those nonreligious individuals who might be substantially burdened by a law on account of their moral convictions.

A survey of federal and state laws conducted about a decade ago found that more than two thousand statutes of all kinds provide for so-called religious exemptions. For example, in numerous states, religiously affiliated child care providers are exempt from many of the regulations—such as minimum staff-child ratios and training standards—that apply to their secular counterparts, despite the fact that the religious day care centers may receive federal subsidies. In addition, many states exempt religious organizations from paying property taxes even as they collect property taxes from secular non-profits. The law often defines religious uses of property broadly, qualifying everything from churches to commercial parking lots and multimillion-dollar "parsonages" with golf-course views. Religious exemptions are not just unfair. They can be deadly. Dozens of states provide exemptions from criminal prosecution for child abuse or neglect by members of faith communities that engage in “faith healing”— Christian Scientists among them—and whose children suffer or die while under their care.

A regime of religious freedom gives favorable treatment to some people not because they have a weightier claim but because they claim a particular identity. If the courts were to apply the compelling state interest standard robustly and consistently, then religious organizations and individuals would be free to disregard a significant swath of zoning, environmental, tax, and other law. We would be left with a system, as the Supreme Court put it in Smith, “in which each conscience is a law unto itself.”

The legal quandary goes deeper, right to the core of the constitutional order. Church-state separationists, of course, want to uphold the Free Exercise Clause, but also the so- called Establishment Clause. And yet the Establishment Clause stands in tension with the Free Exercise Clause, interpreted as a protection of religious freedom. The Establishment Clause, as currently understood, forbids government from disfavoring or favoring religion as such. But by conferring special benefits on religion in the form of presumptive exemptions, the government is favoring it, in violation of the Establishment Clause. No wonder, then, that an increasing number of constitutional scholars are calling for an end to the special treatment of religion.

What is so special about religion?

Before considering a constructive alternative to religious freedom let us examine its motivation. Why would one think that religion deserves special protection by the state? Suppose someone were to propose a basic constitutional right to literary freedom, the right of writers to put on paper whatever they wish. Two problems would immediately be obvious. First, the freedom to write is already protected as it is a subset of more general freedoms that are guaranteed to everyone, such as the freedom of expression. Second, if the idea instead is that writers get some kind of additional assistance not already received by everyone, then the following question arises: what is so special about writing—as opposed to painting, cooking, or volunteering for charity—that it deserves to be singled out for favorable treatment from government? In a liberal democracy, the government works to ensure that all people enjoy a certain sphere of personal liberty and privacy in which they can do what they want. It does not give special treatment to those who use that liberty and privacy to write instead of cook. So, while everyone gets the freedom to write, no one gets literary freedom.

Although it is more familiar, religious freedom makes about as much sense as literary freedom. This is overlooked because we are so accustomed to thinking of religious freedom as a unique and basic right. But the free exercise of religion should be seen as one manifestation of more fundamental rights held by all people, religious and secular alike: private property, personal autonomy, freedom of expression, freedom of association, and perhaps most important, freedom of conscience—the right to make up our own minds on moral and spiritual questions. Some people exercise these rights by being observant Christians, Jews, Sikhs, Hindus, or Muslims. Others exercise them by being Marxists, existentialists, secular humanists, or devotees of self-help psychology. Still others remain uncommitted.

A number of scholars and public intellectuals have argued that religion is special; that among all the possible manifestations of our fundamental freedoms, it stands apart by its very nature and therefore deserves unique treatment. But they all fail to show that there is something about a religious exercise of conscience that makes it more worthy of state solicitude than a secular exercise of conscience.

Three families of arguments loom large in the literature. Remember that a successful case would have to apply only to religion. It could not apply equally to political or other secular commitments, but to all religions, reasonably defined. If not, it would only prove that particular religious communities deserve special protection. And finally, it would have to illustrate that the distinctions it cites are relevant to political rights.

One family of arguments maintains that religion, or some characteristic of religion, is an important good that warrants special considerations in law and government. In this vein, legal philosopher Timothy Macklem argues that faith, understood as “a mode of belief distinct from reason,” provides “a way to come to terms with the unknowable where to do so is necessary to human well-being.” Yet this way of knowing, whether it is explained in terms of a priori intuitions or basic beliefs not arrived at by inference, is too narrow to capture all religious commitments—see Aquinas, Maimonides, and Ibn Rushd (Averroes) on the indispensible role of reason. At the same time, it is too broad to rule out important nonreligious commitments—see Hobbes, Hume, and Mill on the place of desire and value in the foundations of secular ethics.

But insofar as “faith” is distinctive of religion, why should we think that the state has a legitimate duty to subsidize it? Shouldn’t we rather be wary of the public dangers posed by beliefs that are nonnegotiable and unresponsive to evidence, as the philosopher Brian Leiter has observed?

Another candidate for a public good inherent in religion is the search for “ultimate meaning.” Martha Nussbaum writes that “religion merits special deference from the liberal state, given its central importance to citizens in the search for meaning.” This conception of religion succeeds at excluding some secular pursuits, such as playing baseball or day-trading, and points to some- thing that most of us do care deeply about. But like the argument from faith, it is too broad to exclude all secular pursuits. We know of no reason to think that believers’ search for meaning is necessarily more profound than that of their unbelieving counterparts. Nussbaum’s argument serves better as a defense of “liberty of conscience”—not accidentally the title of her recent book on religious freedom, a liberty that belongs to all citizens.

A second family of arguments for religious specialness maintains that religious belief is an exceptionally binding kind of commitment, central to the believer’s integrity. Treating citizens fairly means understanding and respecting such commitments. This suggestion has been developed impressively in the writings of William Galston and Michael Sandel, who emphasize that religious beliefs are not regarded by believers as optional but rather as unchosen commitments that are constitutive of their identity. This line of thought draws our attention to three features that a commitment might have: it is regarded as a categorical obligation rather than a mere preference; it was not voluntarily adopted; and it is essential to a person’s identity. But we must be careful not to overstate the presence of these features in religious commitments or their absence from secular commitments.

Clearly, the Muslim police officer who refuses on religious grounds to shave his beard to comply with police force regulations is acting under an obligation in a way not true of the officer who simply wants to make a fashion statement. But from the fact that some secular claims express mere preferences, it does not follow that all do. It would be perverse to conclude that the commitment to racial justice of Andrew Goodman and Michael Schwerner—murdered for their civil rights activism during Freedom Summer—was not sufficiently “binding” because it sprang from secular attitudes.

At the same time, it is not a necessary condition of a religious practice that it is regarded as inescapable. A self-identifying Catholic might recognize that as a Catholic she has a duty to attend Sunday Mass, while at the same time affirming other identities—as friend, colleague, mother, or life partner—that generate their own, conflicting duties and that sometimes take priority over her religious identity. Furthermore, believers may regard a religious identity itself as chosen. As Alan Wolfe documents in The Transformation of American Religion, “religion in the United States is as much about choice and personal autonomy as it is about belonging and community.” Readers who are attracted to Galston’s or Sandel’s position may doubt the “authenticity” or worth of such individualistic adherence. Yet if we are seeking an understanding of religion to inform our general system of law, empirical generalizations about the lived experience of people of faith should carry more weight than the opinions of political theorists.

What these two strategies—religion-as-good and religion-as-binding—have in common is that they posit some property of religion that is supposed to justify special accommodation by the state. However, if our analysis is correct, the properties proposed do not map onto all and only religious practice. So, the most that these strategies could show is that the state must be sensitive to such properties, not that it must accommodate religious practice as such.

A third and different strategy for vindicating the specialness of religion draws strength, perhaps surprisingly, from the doctrine of “separation of church and state.” For Establishment Clause reasons, we already single out religion for special treatment, such as denial of certain kinds of aid. It may seem that if the National Council on the Humanities but not the National Council of Churches is to be constitutionally permitted to receive direct government funding, then we must attribute to religion a special importance. However, this conclusion would be unavoidable only if we could locate no other, more fundamental constitutional rationale for preventing government establishment or endorsement of religion. There is such a rationale. It is the value of equal respect for citizens.

An alternative: Equal liberty

In Religious Freedom and the Constitution, a 2007 book that deserves a broad audience beyond academia, Christopher Eisgruber and Lawrence Sager, of Princeton University and the University of Texas, respectively, propose a comprehensive new understanding of the place of religion under the law. They call their model Equal Liberty. According to this model, the Free Exercise and Establishment Clauses are not requirements on how the state should treat religion, but rather requirements on how the state should treat citizens.

Equal Liberty encompasses three principles: antidiscrimination, neutrality, and general liberty. The antidiscrimination principle “insists in the name of equality that no members of our political community ought to be devalued on account of the spiritual foundations of their important commitments or projects.” The neutrality principle holds that apart from concerns over discrimination, “we have no constitutional reason to treat religion as deserving special benefits or as subject to special disabilities.” Finally, the general liberty principle holds that “all persons— whether engaged in religiously inspired enterprises or not—enjoy rights of free speech, personal autonomy, associative freedom, and private property that, while neither uniquely relevant to religion nor defined in terms of religion, will allow religious practice to flourish.”

If Eisgruber and Sager’s proposals were to be adopted, many aspects of the present legal landscape would remain in place, though they would be affixed within a more coherent framework. For example, Equal Liberty is consistent with the decision to grant welfare benefits to Adell Sherbert, though not for the reason that she had a religious claim and the state had no compelling interest. Rather, Eisgruber and Sager argue, denying benefits to Sherbert would have violated the antidiscrimination principle by treating her claim differently from mainstream faiths already accommodated by the law. Other exemptions could survive by expanding to countenance comparable nonreligious claims. The Supreme Court’s decision in the Vietnam-era United States v. Seeger, for instance, acted consistently with Equal Liberty when it expanded the existing conscientious-objector status, formerly reserved for theists, so as to include the claims of Daniel Seeger, a pacifist on principled, secular moral grounds.

However, under an equality-based framework, many privileges currently enjoyed by religious organizations and individuals could not survive. What reason—apart from discrimination on the basis of “spiritual foundations”—could be given for granting immunity from zoning or employment regulations to religious charities but not their secular counterparts? Indeed, it may well be that in many of the cases where religious exemptions seem most justifiable—dress codes in public school gym classes, for example—this is not because of the strength of the religious claims but the weakness of the rationale for the rules themselves. On the other hand, where the rationale is particularly powerful—think of the safety of children in the medical neglect and abuse cases—no exemptions of any kind appear justifiable.

Beyond religious freedom

While it is not our intention here to defend Equal Liberty in every detail, we hope to have made clear that there are workable, constructive alternatives to the automatic accommodation of religion as such. To be clear: we would not deny that people have the right to construct a mosque or religiously affiliated community center in Lower Manhattan, but we maintain that their right is not a right of “religious freedom.” Fundamentally, they would be exercising rights that the New York Academy of Sciences, an educational nonprofit organization, exercised when it moved into its offices at 7 World Trade Center: rights of free association and private property. On the other hand, we would oppose presumptively granting to a mosque special privileges that are not also available to the New York Academy of Sciences, unless such privileges can be justified solely by appeals to personal equality and liberty that can be brought by all citizens.

The twin moral pillars of a liberal democratic order are freedom and equality. In the end, the current regime of religious freedom runs counter to the value of treating all citizens equally regardless of their convictions of conscience. In Lynch v. Donnelly, Justice Sandra Day O'Conner wrote that government endorsement of religion is unacceptable because it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." The present legal system of religious freedom does just that. It tells the religious that they are favored members of the political community, while telling secular people of conscience that they are outsiders. What a liberal democracy must stand for is not freedom of religion, but freedom of conscience.

(Read William Galston's response here, and our reply to Galson here.)