Religious Freedom as if Religion Matters: A Tribute to Justice Brennan

Abstract

My subject is the worship and following of God, which is, for tens of millions of Americans, the single most important activity of their lives. This crucial human activity, which has been with us in one form or another all through history, is treated in constitutional law under the heading of religious freedom. I shall argue that the choice to treat worship and following as rights is actually in severe tension with the idea of religion itself, and that a constitutional right to religious freedom, if understood in the usual language of rights, holds the potential for great harm to the religions. My lecture is dedicated to the late Justice William Brennan, because when Justice Brennan retired in 1990, the Supreme Court lost one of its two members (the late Justice Thurgood Marshall, who retired a year later, was the other) who seemed to have the richest understanding of this conflict, and of the likely need for the nation to accept a degree of postmodern ambiguity in responding to it. I am not today concerned with the correct result in concrete cases as much as I am with theory and trend. Indeed, I am unpersuaded that constitutional law can resolve the dilemma I plan to present. The Supreme Court's 1997 decision in City of Boerne v. Flores, striking down as unconstitutional the Religious Freedom Restoration Act (RFRA), illustrates as plainly as one could ask the difficulty the state faces in trying to conceptualize the worship and following of God as constitutional rights rather than vital human activities. RFRA, it must be admitted, was no masterpiece of statutory drafting—but at least its advocates (I among them) sensed the outlines of the problem, even if we thought, mistakenly I now believe, that positive law could provide the solution.