‘In this area of religious freedom,” Justice Ruth Bader Ginsburg pleaded, “we have had a history of accommodation, tolerance here.” In May 2020, she and her colleagues were hearing oral arguments in Little Sisters of the Poor v. Pennsylvania. The case was among the last she would ever hear—and when the Court’s ruled in favor of the Catholic nuns, it occasioned her final dissent.
For years, the Little Sisters had resisted the Obama administration’s efforts to conscript them into its process for providing subsidized contraceptives to employees under the Affordable Care Act. After the 2016 election, the Trump administration accommodated the Little Sisters with a full exemption from this part of Obamacare’s administrative apparatus. When Democratic attorneys general at the state level sued to strip that exemption away, the Little Sisters once again found themselves invoking the federal Religious Freedom Restoration Act in their own defense. RFRA, as it’s known, was enacted in 1993 to reiterate and reinforce America’s commitment to tolerance of religion and accommodation of religious obligations.
But on that May morning, Justice Ginsburg had a different kind of religious “tolerance” and “accommodation” in mind: not tolerance for religious beliefs, but tolerance by the religious believers despite their beliefs; not the public’s accommodation of the Little Sisters’ religious obligations, but the Little Sisters’ accommodation of—indeed, assistance of—other people’s claims for subsidized contraceptives. Dissenting from the Court’s seven-justice majority decision, she drew a stark line: The Religious Freedom Restoration Act’s protections for religious adherents must not come “at the expense of the rights of third parties.”
Ginsburg’s time on the Court began and ended with religious liberty. In her summer 1993 confirmation hearing, one Democratic senator probed the pro-religious-exemption views she had expressed as a D.C. Circuit judge on matters of religious liberty and accommodation. Most notably, in Goldman v. Weinberger (1984), Ginsburg had criticized the federal government’s refusal to grant Rabbi S. Simcha Goldman an exemption from the Air Force’s uniform dress requirements, which had prevented him from wearing his yarmulke. Her dissent in that case was in favor of religious accommodation. In an opinion joined by then Judge Antonin Scalia, she quoted a 1952 Supreme Court opinion and wrote: “At the least, the declaration suggests ‘callous indifference’ to Dr. Goldman’s religious faith, and it runs counter to ‘the best of our traditions’ to ‘accommodate…the public service to the…spiritual needs [of our people].’”
Indeed, when President Bill Clinton signed RFRA into law in 1993, he alluded to the Founding Fathers who wrote the First Amendment: “They well understood what could happen to this country, how both religion and Government could be perverted if there were not some space created and some protection provided. … They knew that there needed to be a space of freedom between Government and people of faith that otherwise Government might usurp.” In 1993, Americans rallied behind such sentiments. RFRA passed unanimously in the House, and 97–3 in the Senate.
Today, however, many Americans’ commitment to toleration is, at best, contingent. Ginsburg spoke for many who want to “reform” the federal RFRA to clear paths for progressive policy on matters of contraception, sexual orientation, and gender identity. The same people view newly proposed state RFRAs as acts not of tolerance but intolerance. In their eyes, Religious Freedom Restoration Acts of any kind have become an undue burden on the free exercise of progressivism.
For now, the Little Sisters and other religious people can breathe sighs of relief, having won this latest case. But how long can they rely on the protections of RFRA, or on the First Amendment that undergirds it?
“Experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed,” James Madison wrote to Thomas Jefferson in 1788. Mere “parchment barriers” are no match for “overbearing majorities.” A bill of rights, in Madison’s view, can protect minorities only so long as the principles embodied by the document still have purchase on the minds of the majority. In our own time, the protections of our nearly two-and-a-half-centuries-old First Amendment, and our two-and-a-half-decades-old Religious Freedom Restoration Act, depend on the civic education of each new generation of Americans. In Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion, Jack Rakove of Stanford University explores Madison’s and Jefferson’s views of religious liberty and the earlier work of John Locke’s writings on tolerance. He offers a concise and enlightening description of foundational themes in American constitutionalism, with special emphasis on Madison and an attempt to connect those themes to modern debates. It is, as Rakove himself calls it, a “brief and intentionally provocative work.”
Too brief, perhaps. Rakove’s account focuses on Madison’s view of religious liberty, with only glances toward Madison’s broader views of America’s constitutional government. But we cannot fully understand one without the other, and Rakove’s tome proves it. When he ventures a “Madisonian” solution for today’s fractured politics, Rakove barely scratches the surface of what constitutional tolerance really would require.
Rakove begins with tolerance. And, crucially, he distinguishes it from “toleration.” The latter refers to principles, while “tolerance” describes the actual practices that give the principles life. “The two words are often used interchangeably,” Rakove notes, but “we might say that toleration involves explaining why religious diversity should be accepted” in theory, “while tolerance is concerned with developing attitudes and behaviors that preserve peace and a measure of harmony within a community.” Toleration is a state of mind; tolerance is a matter of practices embodied by laws, customs, and institutions.
And while we might naturally presume that toleration and tolerance work together, Rakove warns that the opposite can be true. A society that achieves tolerance might eventually be lulled into forgetting the principles of toleration that originally animated it, thus sowing the seeds for eventual intolerance. “The experience of living within a tolerant society makes a proper understanding of toleration more, not less, difficult,” Rakove writes. We tend to embrace practices of tolerance, he argues, not because society reasons its way to them, but because the costs of intolerance grow unbearable.
Rakove traces American tolerance to the principles of toleration advanced by John Locke, first in his Essay Concerning Toleration (1667) and then, more fully, in his Letter Concerning Toleration (1689). “I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion,” he wrote in his Letter, “and to settle the just bounds that lie between the one and the other.”
Earthly government, Locke said, exists to advance “civil interests” such as life, liberty, health, safety, and property. Its dominion “neither can nor ought in any manner to be extended to the salvation of souls,” because civil authorities have no particular claim to such authority, or any ability to actually change the content of men’s hearts and minds.
That said, Locke’s “civil magistrate”—the authority figure of government—retained immense power over religious ideas and practices. Government owed no tolerance for opinions contrary to “human Society, or to those moral Rules which are necessary to the preservation of Civil Society,” or tolerance for practices that violated generally applicable laws. Yet Locke suggested that these exceptions to the rule of general tolerance had to be limited. Opinions so destructive as to merit suppression would be “rare.” And even generally applicable laws would need to be written and applied “very carefully,” so that the government would not “misuse” this authority “under the pretence of publick good.”
Locke’s Letter was “arguably the one text that serves as the best base line for tracing the emerging American commitment to the free exercise of religion,” Rakove writes. Though for the founding generation, Locke was only a start, particularly for Jefferson. “It was a great thing to go so far” as Locke did, Jefferson noted in a late 1776 journal entry, “but where he stopped short, we may go on.” Yet as Rakove observes, to go further, particularly in the time of America’s founding, meant Jefferson and Madison had to grapple not only with principles of toleration, but with the nature of constitutional governance itself.
Jefferson and Madison would collaborate through the founding era to advance notions of religious liberty, first in Virginia and then in the U.S. Constitution. But they worked from different premises toward different ends. For Jefferson, Rakove writes, true religion was “a matter of inner conviction, not outward conformity,” and to that end he was focused on legal procedures and protections for free exercise of the life of the mind. But he hoped that men would freely exercise the right choice: “Jefferson really hoped,” Rakove notes, “that broad principles of religious freedom and open debate would gradually turn Americans—or at least the predominant Protestants—into Unitarians.”
Madison, meanwhile, wrote of religion as a matter of not choice but duty—man’s “duty towards the Creator,” a duty that “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” His goal was not a nation of Unitarians, but a nation capable of housing many different sects in coexistence with one another. He knew that religious zeal can bring out the best in men but also the worst—“a motive to oppression as well as a restraint from injustice,” he wrote in 1787—and so his goal was first and foremost to create constitutional institutions that would channel and moderate the new country’s many sects and factions.
Thus Madison’s account of religion was part and parcel of his account of republican constitutional government, elaborated most famously in his account of the extended republic in Federalist 10, and in his account of federal separation of powers in Federalist 51. In Federalist 10, he illustrated the virtue of a large republic in terms of religion: “A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source.” Likewise, in Federalist 51, his defense of separated powers involved an allusion to religious diversity: “In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects.”
Rakove is most concerned with Madison’s most famous writing on the subject: the Memorial and Remonstrance Against Religious Assessments, his public (but long unsigned) argument in 1785 against a Virginia tax to subsidize Christian religion. The Memorial “remains the central statement of the enlightened approach to religious freedom that the sages of Monticello and Montpelier pursued,” Rakove writes, “and it deserves careful consideration.” But Rakove’s treatment of it is peculiar. The memorial contains the lines I already quoted describing religious obligations as duties that precede man’s social contract with the state. And that, along with Madison’s further assertion that religion cannot rightly be “subject to [the authority] of the Legislative Body,” seems to reinforce the argument that religious liberty requires judicial recognition of believers’ exemptions from legislation that might burden their religious activities.
Yet Rakove disputes this conclusion. He points instead to Madison’s arguments in the Memorial against government promotion of religion for religion’s own sake. Should civil government “employ Religion as an engine of Civil policy,” Rakove quotes, it would be “an unhallowed perversion of the means of salvation.” Moreover, “experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation,” thus actually corrupting the churches that government is purporting to aid.
A quarter-century ago, in his Pulitzer-winning Original Meanings (1997), Rakove argued fiercely against reducing the Founding Fathers’ multitudinous views into simplistic accounts. Historians, he wrote, can “rest content with—even revel in—the ambiguities of the evidentiary record, recognizing that behind the textual brevity of any clause there once lay a spectrum of complex views and different shadings of opinion.” While lawyers and judges—that is, the originalists he was purporting then to lampoon—might need to boil historical complexity down to simplistic legal fictions, “we historians have different obligations and aims,” the “foremost” of which is “to explain why contrasting meanings were attached to the Constitution from its inception.”
It is therefore interesting to note that in his new book, Rakove turns around and boils Madison and Jefferson down to a simple rule. “Both imagined a republic where religion was wholly privatized,” he writes, a “society where matters of religion were solely dependent upon the complete autonomy of individual citizens, and where the state could effectively remove religion from the realm of regulation.” Rakove proposes to simplify matters with “Madison’s Razor”: namely, to define religious liberty primarily “as a matter of private belief and voluntary associations” rather than outward conduct, and to avoid any governmental support for religion, by neither punishing men for their beliefs nor exempting them from general laws and regulations governing their conduct.
It certainly does simplify things! As Justice Scalia observed in Lee v. Weisman (1992), “Church and state would not be such a difficult subject if religion were … some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one’s room.” But of course, he added, “for most believers it is not that, and has never been.”
To prove Scalia’s point, look no further than the steady stream of cases arriving in the Supreme Court under the First Amendment or the Religious Freedom Restoration Act, challenging laws and regulations affecting people’s or institution’s religious activities. I’m not talking just about the Little Sisters’ cases and the earlier case of Burwell v. Hobby Lobby (also involving religious corporations’ objections to the contraceptive mandate). Last year’s term saw Espinoza v. Montana Department of Revenue, which struck down Montana’s prohibition against students using state-subsidized scholarships to attend religious schools, and Our Lady of Guadalupe School v. Morrissey-Berru, which reaffirmed the constitutional limit on federal regulators’ control of religious schools’ personnel decisions.
A key case in the current term takes up Philadelphia’s abrupt termination of Catholic Social Services’ century-long service placing orphans with foster families—because the Catholic Church’s millennia-old position on human sexuality was no longer deemed tolerable. There was no same-sex couple seeking help from Catholic Social Services, but even so, Philadelphia punished not just the Catholic Church but also the couples who voluntarily sought its assistance, and the children who benefitted incalculably from it. These cases are blunt rejections of Rakove’s effort to render religion a purely private avocation.
That said, the most publicly religious Supreme Court justice in history knew where to put his faith, and where not to. Antonin Scalia’s most significant opinion on religious liberty, one of his most significant opinions on any subject, came in Employment Division v. Smith (1990), where he and his colleagues rejected the notion that judges should grant religious believers broad exemptions from generally applicable, neutral laws (in that case, laws against drug use).
Construing the First Amendment as creating “a private right to ignore generally applicable laws,” he wrote, would be “a constitutional anomaly.” Moreover, judicial enforcement of such a right, defined in terms of the tenets of a religion and the sincerity of its putative believer would deeply entangle our government’s judicial branch in the adjudication of religion itself. “The First Amendment’s protection of religious liberty does not require this,” he concluded; and in the absence of a constitutional command, such difficult questions of religious exemption to generally applicable laws are best left to the legislature.
It was at this point that the legislature rose to Scalia’s challenge. The U.S. Congress voted overwhelmingly to enact the Religious Freedom Restoration Act. On the one hand, RFRA directs judges to exercise the sort of discretionary judgment that Scalia declined to read into the First Amendment itself: namely, to construe statutes in a way that avoids substantial burdens on the exercise of religion whenever possible. On the other hand, RFRA confirms Scalia’s own prediction that “a society that believes in the negative protection accorded [by the First Amendment] to religious belief can be expected to be solicitous of that value in its legislation as well.”
At least that was the case in 1993, and this fundamental aspect of America’s national character was central to Justice Scalia’s understanding of American law and government. In a 2007 speech on “American Values and European Values,” he reiterated that the First Amendment “staunchly protects the freedom to practice one’s religion”—not just the freedom to believe. But he focused his attention, as in Smith, not on the courts but on the American people: We “tend to believe strongly that religious values undergird government, and should be acknowledged to do so.” And, he said, Americans translate that understanding into legislated protections for religious liberty—unlike Europeans, who “are less inclined to oppose laws denigrating that right, such as laws preventing Muslim women and girls from wearing headscarves in school.”
Would Scalia say the same today? Just 13 years after he spoke those words, as the conflict between religious liberty and progressive policy aims intensified, ever more Americans argue that religious values must not inform legislation, at least when those values run counter to the left’s policies.
In a country where laws are made through the checks and balances of a deliberative legislative process, and where constitutional federalism limits the national government’s power while facilitating diversity among the states, the left’s turn against religious values and religious liberty would be less significant. But in a country where we are governed primarily by confident, uncompromising regulators who make law unilaterally, and in which the federal government overtakes the states in ever more parts of our lives, the recent rupture in Americans’ views of religion and religious liberty has become much more ominous.
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AND THIS is what Rakove’s “brief and provocative” account of Madison’s thought misses. Rakove ventures a Madisonian theory of religious liberty without the Madisonian framework for government upon which it was premised.
He does glance in that direction, from time to time. “No one was then imagining the ambit of the modern regulatory state,” he notes of the generation that wrote our Constitution, “or the multiple points where its reach would intersect or conflict with private religious conviction.” That fact cuts much deeper than Rakove allows.
Madison’s Constitution called for laws to be made through a process of institutional checks and balances, translating the public’s passions into public reason, producing laws that were more moderate and more stable. The federal administrative state lacks all of the core mechanisms by which Madison’s constitutional government would moderate American lawmaking.
First, federalism. Drawing lines between federal and state authority, and preserving state and local authority over significant portions of American life, would ensure that those subjects would be determined by many state governments, informed by and responsive to local sentiments and values—not a federal government that writes one-size-fits-all laws for, say, California and Alabama alike.
Second, the separation of powers. Even on those subjects within the federal government’s authority, dividing the work of lawmaking from the work of law-execution would prevent government from making it all up as it goes along, in hindsight, at the point of enforcement. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands,” Madison wrote in Federalist 47, “may justly be pronounced the very definition of tyranny.” That is because combining these three aspects of governance would collapse the rule of law into the rule of executive discretion, to be applied on a case-by-case basis with no meaningful limits before or after the fact. Madison conceded in other essays that such lines cannot be drawn with perfect clarity, and that the separation cannot be so pronounced as to prevent checks and balances, but none of this obviated the fundamental need for separation of powers as a bulwark of republican government.
Third, Congress’s predominance in lawmaking. While Madison knew well the dangers of legislative power—so palpable that it required Congress to be divided into two houses and subjected to the president’s veto—he also recognized that the legislature should be the very body where the nation’s competing demands and values would be resolved into law. “The regulation of these various and interfering interests forms the principal task of modern legislation,” he wrote in Federalist 10, and the federal legislature would “refine and enlarge the public views,” especially when that legislature’s membership represents not just a small set of viewpoints but America generally.
Finally, the need for particular virtues to inform the work of self-government itself. While Madison warned that constitutional government cannot presume that men in power will act as angels, he also warned that our republican constitution presumes “sufficient virtue among men for self-government.” (President Clinton invoked this sentiment when he signed the Religious Freedom Restoration Act: “Our Founders … knew that religion helps to give our people the character without which a democracy cannot survive.”) For these virtues, Madison would not rely exclusively on religion, as he noted in Federalist 10, but neither would he exclude religious influence altogether. In his Memorial and Remonstrance, for example, Madison quoted the Virginia’s Declaration of Rights’ invocation of “Christian forbearance, love and charity” against the “animosities and jealousies” inflamed by the misuse of religion.
Today, of course, none of Madison’s premises hold fast. Ever more subjects are decided nationally by the federal government, not separately by the states. Ever more work of government is performed by agencies that effectively combine the legislative and executive powers, writing the operative laws (pursuant to broad powers delegated to the agencies long ago by Congress in practically open-ended statutes) and then enforcing those regulations themselves. Ever more laws are written by agencies, not through the moderating forces of the legislative process, but through the swift, unilateral processes of agency rulemaking that do little to moderate the confident, categorical assertions of each new presidential administration. And ever less of it all is informed by republican virtue and the spirit of “forbearance,” let alone “love and charity.”
Given these tectonic constitutional shifts, it is no coincidence that most salient religious-liberty controversies in the Supreme Court today arise not from legislation per se, but from executive and administrative actions: the Colorado commission that tried to force Masterpiece Cakeshop to craft a cake celebrating a same-sex wedding; the assertion of Obamacare regulations against the Little Sisters of the Poor; and, at the state and local level, the conflicts between regulators and religious believers over COVID-19 rules, highlighted by Orthodox Jewish synagogues’ and the Catholic Diocese’s federal lawsuits against Governor Cuomo.
The COVID-19 conflicts sparked Justice Samuel Alito to write the most stirring judicial opinion of his career this summer, in a case arising from the Nevada governor’s social-distancing rules—which plainly subjected churches to stricter treatment than casinos. However reasonable the states’ and cities’ initial reactions to COVID-19 might have been, Alito urged, “a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists.” Later, in an address to the Federalist Society’s annual convention in November, Alito reiterated the point even more emphatically. The nation’s experience in COVID-19 regulation exemplifies the costs of “dominance of lawmaking by executive fiat rather than legislation.” Two weeks later, the justices finally blocked the enforcement of COVID-19 regulations: In a 5–4 decision issued the evening before Thanksgiving, the Court enjoined New York Governor Andrew Cuomo’s discriminatory rules limiting attendance at religious services.
America’s history of tolerance and accommodation, which the late Justice Ginsburg invoked at oral argument, reflected America’s constitutional institutions. When legislators representing diverse people and values meet on equal footing to debate and deliberate, the product is informed by values of toleration. The legislative process’s inherent tendency toward compromise and moderation is itself a crucial institution for the perpetuation of tolerance. But in dominance, intolerance.
And when Americans see the lawmaking power as a weapon to be won in warlike presidential elections and then wielded against one’s opponents for the four years that follow—not the shared responsibility of legislators—they too lose their capacity for tolerance and their memory of toleration.
Rebuilding that capacity, and restoring that memory, requires a return to Madison—not a “Madison’s Razor” of Rakove’s creation, but the genuinely republican constitutional institutions that Madison himself labored to help create, and the republican virtues that Madison knew undergirded those institutions.
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