Religious Freedom and (Other) Civil Liberties: Is There a Middle Ground?

The question will always be in the details: How do we evaluate the need for uniform enforcement versus the need for accommodation? To insist on one or the other to the extreme is to insist on the truth of one’s position in a way that threatens a certain kind of fundamentalism, a sureness of one’s position, which is improper both as a matter of political theory and as a matter of constitutional law. In the remainder of this article, I first discuss contemporary works by intellectual historians, each of whom resists the kind of pluralism I advance. I then criticize Ronald Dworkin’s final book for adopting both too expansive a view of religion and too narrow a view of how to protect it. Next, I evaluate the Court’s holding in the most recent religious accommodation case, Hobby Lobby, admiring its concern for such accommodation but critiquing its treatment of whether the law in question places a substantial burden on religious practice. Before concluding, I offer some brief thoughts on whether we should exempt from anti-discrimination law small business owners who object on religious grounds to providing services to same-sex couples in the setting of weddings or other commitment ceremonies.

Like several other articles previously featured on Notice & Comment, Professor Greene’s article is particularly relevant in light of the recent controversy in Indiana. Give it a read today!