Religious Liberty for Illiberal Purposes? An Example from Recent U.S. Supreme Court Jurisprudence

Religious liberty claims, that is claims to exemption from laws that unintentionally burden religious conduct, have been multiplying in the U.S. during the battles over same-sex marriage. Analyzing the legal status of such claims brings us to the foundational question of the role of religion in secular states. While most of the literature on this question treats religion as a given that interacts with state power, I will inquire how religious claims are being configured in these debates such that they support a particular vision of our polity and of democracy. How do contestations over religious liberty produce a particular type of religion conducive for a particular type of understanding of what is a secular democracy. To do so I will first analyze the history of religious liberty claims in the civil rights area by presenting a Kantian model of citizenship on a continuum. This model will allow us to see religious liberty claims function as contestation over who is allowed to fully participate in the state. Second, I will turn to the religious liberty jurisprudence of the U.S. Supreme Court under its current Chief Justice, John Roberts. The surprising fact is that the Robert courts takes claims to religious injury at face value without allowing for their critical examination. This abstemious position requires a model of causality where religious and secular conducts are entangled. This model allows for claims to sincere burden to remain unexamined, but also destabilizes the courts’ or legislatures’ ability to assess religious sincerity in general. Finally, I will point out the structural alignment between this jurisprudence and Nicholas Wolterstorff’s Reformed Calvinist vision of the rationality of religious beliefs. I will thus conclude by arguing that this Reformed Calvinist vision supports a particular agonistic model of democracy that weakens minority positions.