PROPHYLACTIC FREE EXERCISE: THE FIRST AMENDMENT AND RELIGION IN A POST-KENNEDY WORLD. (2024)

INTRODUCTION

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, (1)the Supreme Court had the chance to resolve the building tension betweenthe equality principle embodied in anti-discrimination laws and theFirst Amendment's guarantee of free exercise. (2) In that case, acake maker refused to make a cake for a same-sex couple's wedding,defying a Colorado civil-rights law that required him to do so whileinvoking his freedom of conscience as a religious believer. (3) Doone's deeply believed biblical convictions excuse one fromcompliance with neutral and generally applicable laws?

The Court, per Justice Kennedy, avoided the question. (4) Instead,it wagged its finger at the Colorado Civil Rights Commission and gave ita stern talking-to about impartiality and respect, holding merely thatin this case, the state had been partial in its dealings with the cakemaker. (5)

Justice Kennedy was able to get some of the Court's moreliberal justices to sign on to his opinion (albeit with somereservations). (6) It seems safe to say, when one considers theconcurring Masterpiece Cakeshop opinions of Justices Gorsuch (7) andThomas, (8) together with the writings of the Chief Justice (9) andJustice Alito (10) in other cases, that Justice Kennedy caused theresult (or the non-result, as it were) in the case. For reasons thatwill be fleshed out more thoroughly below, had Justice Kennedy not beenon the Court (and had a more socially conservative jurist like JusticeBrett Kavanaugh been in his place), the Court would likely have decidedmore broadly that free exercise trumps any generally applicableobligation under a mere state statute. (11)

Part I of this article examines the drift, in free exercisejurisprudence, from the protection of affirmative, active, kineticreligiosity (things like expressing belief, praying, gathering forworship services, participating in rituals and sacraments and rites, andso forth) to the protection of beliefs that conflict with the stricturesof generally applicable and seemingly even-handed laws--even laws thatsimply require state neutrality as to religion. (12) I call this thedrift from dynamic free exercise to prophylactic free exercise; underthis emerging view (in a historical sense, reemerging), if I am abeliever, then I am not just free to do what I please in my religiouslife, but also free from the application of any law that might cause meangst because of my religious beliefs.

Part II explores Justice Gorsuch's concurring opinion inMasterpiece Cakeshop, which seems to have been laid as a foundation forthe Court's post-Kennedy doctrine as to this tension betweensecular laws and free exercise rights. Part III suggests that, in thenew paradigm Justice Gorsuch presages, where belief will be of a higherconstitutional rank than non-belief, those who now characterizethemselves as non-believers might wish to cast themselves as believersinstead--not "believers" in the sense of adhering to sectariandogmas, but in the sense of having opinions and ideas about religion,spiritual matters, and how the world works. (13) The new Supreme Courtmajority will likely hold that because the First Amendment protectsbeliefs and the expression of beliefs, it therefore has no applicationto the absence of beliefs or their expression--to mere attitudes ordisbelief systems. It would be harder, on the other hand, for the Courtto ignore arguments that are framed to set up a contest between or amongcompeting beliefs about religion, all of which implicate the FirstAmendment. Part III therefore proposes a new vocabulary fornon-adherents in the free-exercise cases to come: a vocabulary that doesnot passively deny the truth of perceived falsehoods, but ratherassertively expresses those beliefs about religion that may be held evenby a secularist.

I. FROM DYNAMIC TO PROPHYLACTIC FREE EXERCISE

There are two religion clauses in the Constitution. (14) The firstis the Establishment Clause, which is widely understood as enjoininggovernmental entanglement with religion, (15) endorsem*nt of religion,(16) or coercion. (17) According to the Supreme Court, the principleundergirding the Establishment Clause is neutrality: the government maynot favor religion over non-religion, non-religion over religion, or onereligion over another. (18)

The second is the Free Exercise Clause, which is also understood,as a matter of the political philosophy prevailing at the time theConstitution's drafting, as requiring the government to be neutralas to religion--as to its existence and its exercise in the lives ofcitizens: "[The] history [of the union of church and state]prompted John Locke to urge toleration and stress the necessity ofdistinguishing 'the business of civil government from that ofreligion' and establishing clear boundaries between them."(19)

The two clauses, quite famously, tend to come into conflict, aswhen a public school tries to maintain government neutrality by stoppinga student from intoning a sectarian prayer during a commencement speech.(20) When maintaining governmental neutrality is at odds with abidingreligious practices, the Court has naturally sought to discover whichtakes precedence. (21) There was a time when the Supreme Court seemed tosuggest a broad exemption for believers offended by the strictures ofsecular laws: courts were to exempt religious adherents from thosestrictures when a belief and a stricture were in alleged conflict unlessthe government had some interest "of the highest order" inplay. (22) The Court then lurched in the other direction, holding thatone's religious beliefs do not exempt one from complying with agenerally applicable and even-handed law. (23) Now, however, the Courtis moving back toward the "highest order" standard: a neutrallaw cannot be enforced against a religious objector unless thegovernment has some compelling interest in enforcing compliance. (24)

Under this view, not only is the government prohibited frominterfering in what a religious adherent does; it is required to respectand abide what the adherent believes, even when the adherent'sbelief runs afoul of a seemingly neutral law. (25)

A. Dynamic Free Exercise

There seems some confusion about the word exercise. Exercise means"the act of bringing into play or realizing in action." (26)It is "[a]n activity carried out for a specific purpose." (27)To exercise something is to engage in "the use of something."(28) "If you exercise something such as your authority, yourrights, or a good quality, you use it or put it into effect." (29)The exercise of something cannot, by definition (it would seem), bepassive or inert. The exercise of something is, rather, active andkinetic--it is dynamic. The same is true of a number of the freedoms,even outside the First Amendment, guaranteed by the Bill of Rights (30):in the constitutional sense, we are free to, not free from, except inthe sense that we're free from the government's interferencewhen we choose to do something that we have a right to do. (31) The freeexercise of religion, then, seems to involve a right to practiceone's religion and to express it: to pray, to celebrate, toworship, and to indulge whatever ceremonies and rites one sees fit toindulge. (32)

The Court seemed to take this view, for example, in Church ofLukumi Babalu Aye v. City of Hialeah. (33) There, the issue was whethera city could constitutionally target animal sacrifices that wereundertaken as part of religious rituals associated with Santeria. (34)The city's ordinance did not apply across the board; althoughadherents to Santeria were not allowed to kill chickens as part of anyanimal sacrifice, others in the city were allowed to kill chickens forother reasons (35) (when I teach this to law students, I call it"the KFC exception"; one wonders whether a chicken with itshead on the chopping block really cares one way or the other). Thisbeing so, the Court, per Justice Kennedy, applied strict judicialscrutiny (36) and struck down the ordinance as applied against Santeria.(37)

The Court noted, "[i]n addressing the constitutionalprotection for free exercise of religion, our cases establish thegeneral proposition that a law that is neutral and of generalapplicability need not be justified by a compelling governmentalinterest even if the law has the incidental effect of burdening aparticular religious practice." (38) As Justice Kennedy emphasized,animal sacrifice, unlike merely inert religious belief, is a ritual--anovert and active expression of religious belief undertaken in thecontext of worship and prayer. (39) This is consistent with the notionthat the First Amendment protects dynamic free exercise; there isnothing passive or dormant about it.

In Lukumi, the Court, helpfully, surveyed other cases involving theapplication of the Free Exercise Clause under then-prevailing norms:

At a minimum, the protections of the Free Exercise Clause pertain ifthe law at issue discriminates against some or all religious beliefs orregulates or prohibits conduct because it is undertaken for religiousreasons. Indeed, it was "historical instances of religious persecutionand intolerance that gave concern to those who drafted the FreeExercise Clause"... In McDaniel v. Paty, (40) for example, weinvalidated a state law that disqualified members of the clergy fromholding certain public offices, because it "impose [d] specialdisabilities on the basis of... religious status." On the sameprinciple, in Fowler v. Rhode Island, (41) we found that a municipalordinance was applied in an unconstitutional manner when interpreted toprohibit preaching in a public park by a Jehovah's Witness but topermit preaching during the course of a Catholic mass or Protestantchurch service. (42)

Under this view, mere religious belief is only protected under theFree Exercise Clause to the extent that it is purposefully targeted bythe government. Absent that kind of discrimination, the clause onlyapplies to "conduct... undertaken for religious reasons." (43)The factual examples, too, are instructive. They involve the overttargeting of religious beliefs and religious practices: the act of beinga clergy member or the act of preaching one's tenets. (44) Again,the First Amendment was understood as protecting dynamic free exercise.

The Free Exercise Clause, when construed this way, does not excuseone's participation in the social compact, or civic life, inconformity with neutral and even-handed laws. So the Court (per JusticeScalia, which might surprise some) had this to say in EmploymentDivision v. Smith, a case dealing with whether a state could prohibitthe use of peyote:

But the "exercise of religion" often involves not only belief andprofession but the performance of (or abstention from) physical acts:assembling with others for a worship service, participating insacramental use of bread and wine, proselytizing, abstaining fromcertain foods or certain modes of transportation. It would be true, wethink (though no case of ours has involved the point), that a statewould be "prohibiting the free exercise [of religion]" if it sought toban such acts or abstentions only when they are engaged in forreligious reasons, or only because of the religious belief that theydisplay. It would doubtless be unconstitutional, for example, to banthe casting of "statues that are to be used for worship purposes," orto prohibit bowing down before a golden calf.[The religious objectors] in the present case, however, seek to carrythe meaning of "prohibiting the free exercise [of religion]" one largestep further. They contend that their religious motivation for usingpeyote places them beyond the reach of a criminal law that is notspecifically directed at their religious practice, and that isconcededly constitutional as applied to those who use the drug forother reasons. They assert, in other words, that "prohibiting the freeexercise [of religion]" includes requiring any individual to observe agenerally applicable law that requires (or forbids) the performance ofan act that his religious belief forbids (or requires). As a textualmatter, we do not think the words must be given that meaning. It is nomore necessary to regard the collection of a general tax, for example,as "prohibiting the free exercise [of religion]" by those citizens whobelieve support of organized government to be sinful, than it is toregard the same tax as "abridging the freedom... of the press" of thosepublishing companies that must pay the tax as a condition of staying inbusiness. It is a permissible reading of the text, in the one case asin the other, to say that, if prohibiting the exercise of religion (orburdening the activity of printing) is not the object of the tax, butmerely the incidental effect of a generally applicable and otherwisevalid provision, the First Amendment has not been offended. (45)

Or, as Justice Frankfurter once put it:

Conscientious scruples have not, in the course of the long struggle forreligious toleration, relieved the individual from obedience to ageneral law not aimed at the promotion or restriction of religiousbeliefs. The mere possession of religious convictions which contradictthe relevant concerns of a political society does not relieve thecitizen from the discharge of political responsibilities. (46)

B. The Trend Toward Prophylactic Free Exercise

But alas, Justice Scalia, the author of Employment Division v.Smith, is no longer on the Supreme Court; he was replaced by JusticeGorsuch, (47) who has a different view of things. (48) And now JusticeKennedy, the author of Lukumi, has left the Court as well, bequeathinghis seat to President Trump, who picked Justice Brett Kavanaugh, ajurist firmly of a mind with Chief Justice Roberts (49) and JusticesAlito, (50) Gorsuch, and Thomas (51)--the four more sociallyconservative justices already on the Court. (52) That makes five (53): anew majority for the proposition that free exercise can be inert andpassive, and that the First Amendment's promise of religiousfreedom is prophylactic.

Although this trend is now likely to accelerate, it has beendeveloping for several years, sometimes with Justice Kennedy'sgrudging acquiescence. (54) In Trinity Lutheran Church of Columbia, Inc.v. Comer, the Supreme Court considered the constitutionality of aMissouri state constitutional provision that forbade the state fromproviding public benefits to religiously affiliated organizations. (55)Trinity Lutheran Church applied to participate in a state-run scrap-tireprogram that offered state grants to non-profit organizations thatrepaved surfaces with surfacing made from recycled tires. (56) Thestate's argument seemed compelling, but only if one sees freeexercise as dynamic rather than prophylactic:

[Missouri] contends that merely declining to extend funds to TrinityLutheran does not prohibit the Church from engaging in any religiousconduct or otherwise exercising its religious rights. In this sense,says [Missouri], its policy is unlike the ordinances struck down inLukumi, which outlawed rituals central to Santeria. Here the [state]has simply declined to allocate to Trinity Lutheran a subsidy the Statehad no obligation to provide in the first place. That decision does notmeaningfully burden the Church's free exercise rights. And absent anysuch burden, the argument continues, the [state] is free to heed theState's antiestablishment objection to providing funds directly to achurch. (57)

But Chief Justice Roberts disagreed:

[T]he... policy puts Trinity Lutheran to a choice: It may participatein an otherwise available benefit program or remain a religiousinstitution. Of course, Trinity Lutheran is free to continue operatingas a church.... But that freedom comes at the cost of automatic andabsolute exclusion from the benefits of a public program for which theCenter is otherwise fully qualified. And when the State conditions abenefit in this way... the State has punished the free exercise ofreligion: "To condition the availability of benefits... upon [arecipient's] willingness to... surrender[ ] his religiously impelled[status] effectively penalizes the free exercise of his constitutionalliberties." (58)

Chief Justice Roberts went so far as to suggest that the Missourilaw, which required only that the state not aid religion, had the effectof requiring a church "to renounce its religious character"(59)--because the state would not provide a grant to a church thatwished to repave its playground with tar derived from used tires. (60)This is obviously a nod to the prophylactic view of free exercise: evenwhen a government simply refrains from providing otherwise-available aidto a sectarian church, it will be deemed to have interfered with thefree exercise of religion, regardless of a state's interest inavoiding establishment. (61)

The Court, having found that Missouri's abstention from aidingreligious organizations amounted to discrimination against religiousbelief, resurrected the old "highest order" standard:"only a state interest 'of the highest order' can justifythe [state's] discriminatory policy." (62) Justices Thomas andGorsuch endorsed the reemergence of this standard, (63) but fretted thata footnote in the Court's opinion could be construed as limitingthe reach of the new standard only to "playground resurfacing"cases. (64)

As Justice Sotomayor put it in her dissent:

This case is about nothing less than the relationship between religiousinstitutions and the civil government--that is, between church andstate. The Court today profoundly changes that relationship by holding,for the first time, that the Constitution requires the government toprovide public funds directly to a church. Its decision slights bothour precedents and our history, and its reasoning weakens thiscountry's longstanding commitment to a separation of church and statebeneficial to both. (65)

In Justice Sotomayor's view, as the new majority appliesprophylactic free exercise, religious adherents will be shielded evenfrom the insult of state neutrality. (66)

The Court has indulged the same reasoning in applying a federalstatute that purports to vindicate the free exercise of religion. (67)In Bunnell v. Hobby Lobby, the Court considered the Religious FreedomRestoration Act (RFRA) of 1993 (68), which, like the First Amendmentit*elf, requires judicial intervention when a government"substantially burdens the exercise of religion." (69)Substantively, RFRA differs from the First Amendment in that it requiresthe application of strict judicial scrutiny even when a generallyapplicable and even-handed law interferes with the free exercise ofreligion, (70) whereas the Court has interpreted the First Amendment asrequiring deference to a neutral and generally applicable law thatincidentally touches on religious sensibilities. (71) (It is interestingthat the Court tolerated a congressional act that purported to change ajudicial, constitutional rule by legislative fiat--a practice that isgenerally eschewed). (72) Be that as it may, the threshold question isthe same under either RFRA or the First Amendment: neither triggersjudicial intervention absent a burden on free exercise. (73)

Addressing whether the Affordable Care Act (ACA) (74) could,without running afoul of RFRA, require employers to providehealth-insurance policies for employees that, in turn, had to covercontraception, the Court first held that a closely held corporation is a"person" entitled to the free exercise of religion. (75) TheCourt further held that the ACA's mandatory-contraceptive-coveragerequirement did burden free exercise--for two reasons. (76) First, theCourt stated that the plaintiffs "ha[d] religious reasons forproviding health-insurance coverage for their employees." (77)Second,

The [challengers] believe that providing the coverage demanded bythe... regulations is connected to the destruction of an embryo in away that is sufficient to make it immoral for them to provide thecoverage. This belief implicates a difficult and important question ofreligion and moral philosophy, namely, the circ*mstances under which itis wrong for a person to perform an act that is innocent in itself butthat has the effect of enabling or facilitating the commission of animmoral act by another. (78)

According to the Court, then, the provision of employment benefitsis a religious exercise (this seems somewhat at odds with"originalism"). (79) And clearly, free exercise does not justinvolve one's own dynamic participation in religious traditions andrituals or the active expression of one's religious tenets, butalso judicial protection against psychic harm suffered by adherentsbecause of the unreligious choices of third parties. (80) "In adecision of startling breadth, the Court [held] that commercialenterprises, including corporations, along with partnerships and soleproprietorships, can opt out of any law (saving only tax laws) theyjudge incompatible with their sincerely held religious beliefs."(81)

Justice Kennedy, although he concurred, was discernably disquietedover the potential reach of the decision, claiming (hoping?) that theopinion "does not have the breadth and sweep ascribed to it by therespectful and powerful dissent," (82) and stating, as an aside,that free exercise means "the right to express... beliefs and toestablish one's religious (or nonreligious) self-definition in thepolitical, civic, and economic life of our larger community. But in acomplex society and an era of pervasive governmental regulation,defining the proper realm for free exercise can be difficult." (83)

But again, Justice Kennedy is no longer on the Court, and hisreplacement, Justice Brett Kavanaugh, seems not to share JusticeKennedy's reservations about the drift toward prophylactic freeexercise. (84) In Priests for Life v. United States Department of Healthand Human Services, (a case much like Hobby Lobby), the U.S. Court ofAppeals for the District of Columbia Circuit again took up the questionwhether the ACA abridged the free-exercise rights of believers--but thistime, not by requiring employers to provide health-insurance coveragethat would provide access to contraceptives, "including certainmethods of birth control that, some believe, operate as abortifacientsand result in the destruction of embryos," (85) but even byrequiring that an employer wishing to opt out of themandatory-contraceptive-care provision of the law do so by filing aform. (86) Like the Supreme Court in Hobby Lobby, the circuit court wasapplying RFRA, (87) not the Free Exercise Clause of the First Amendment,but again, both RFRA protections and First-Amendment protections aretriggered only by governmental meddling in "free exercise."(88)

The plaintiffs in Priests for Life argued that having to return theform to opt out of the ACA, because it required the employer to takeaffirmative steps on the basis of the employer's religiousconvictions, was sufficiently burdensome to give rise to a free-exerciseclaim:

Many prominent religious organizations around the country--includingthe plaintiffs in this case--have bitterly objected to this scheme.They complain that submitting the required form contravenes theirreligious beliefs because doing so, in their view, makes them complicitin providing coverage for contraceptives, including some that theybelieve operate as abortifacients. They say that the significantmonetary penalty for failure to submit the form constitutes asubstantial burden on their exercise of religion. They contend,moreover, that the Government has less restrictive ways of ensuringthat the employees of the religious organizations have access tocontraception without making the organizations complicit in the schemein this way. (89)

Justice Kavanaugh agreed: "[U]nder Hobby Lobby, theregulations substantially burden the religious organizations'exercise of religion because the regulations require the organizationsto take an action contrary to their sincere religious beliefs(submitting the form) or else pay significant monetary penalties."(90) Under this reasoning, free exercise is decidedly prophylactic: itis a substantial burden on the exercise of religion to cause a religiousbeliever the pique of having to submit to a bureaucratic certificationthat would allow the believer to opt out of having to comply with aneutral and even-handed law that would, allegedly, entangle the believerin the areligious private choice of an employee to access contraceptivesunder an insurance policy written and administered by a third-partyinsurance carrier. (91)

If the Court adopts this view, then free exercise will not be aboutpracticing one's religion anymore. We will likely soon reach theend of the line for dynamic free exercise and move squarely into an ageof prophylactic free-exercise.

II. UNDER PROPHYLACTIC FREE EXERCISE, WHO IS PROTECTED FROM WHOM?

When it comes to the relative constitutional ranks of belief versusnonbelief, the Court is trending toward a clear choice. (92) There isperhaps no better illustration of this than Justice Gorsuch'sconcurring opinion in Masterpiece Cakeshop; Justice Gorsuch began thesubstantive point of his concurrence by opining that the case of JackPhillips, the cake maker who refused to make a cake for a same-sexcouple, was on all fours with another case:

Start with William Jack's case. He approached three bakers and askedthem to prepare cakes with messages disapproving same-sex marriage onreligious grounds. All three bakers refused Mr. Jack's request, statingthat they found his request offensive to their secular convictions. Mr.Jack responded by filing complaints with the Colorado Civil RightsDivision. He pointed to Colorado's Anti-Discrimination Act, whichprohibits discrimination against customers in public accommodationsbecause of religious creed, sexual orientation, or certain othertraits. Mr. Jack argued that the cakes he sought reflected hisreligious beliefs and that the bakers could not refuse to make themjust because they happened to disagree with his beliefs. But theDivision declined to find a violation, reasoning that the bakers didn'tdeny Mr. Jack service because of his religious faith but because thecakes he sought were offensive to their own moral convictions. Asproof, the Division pointed to the fact that the bakers said theytreated Mr. Jack as they would have anyone who requested a cake withsimilar messages, regardless of their religion. The Division pointed,as well, to the fact that the bakers said they were happy to providereligious persons with other cakes expressing other ideas. Mr. Jackappealed to the Colorado Civil Rights Commission, but the Commissionsummarily denied relief. (93)

Justice Gorsuch complained that the commission allowed for cakemakers to have secular objections to religion-based anti-LGBT animus,but not for a religious cake maker to have an objection to a secularedict requiring equal treatment for LGBT Coloradans. (94)

In Justice Gorsuch's view, then, a baker who would not put adiscriminatory message on a cake is, conceptually (and forconstitutional purposes), the same as a baker who would not make a cakeat all because he wished to discriminate. (95) Discrimination is notreally discrimination if it is religion-based discrimination (then it isa constitutionally protected belief), but the secular insistence onnon-discrimination is discrimination, because it is an areligiousattitude that, when applied against a religious person, becomes ananti-religious preference. (96)

Suppose Mr. Jack had been a secular racist rather than a religiousobjector to same-sex marriage, and that he had asked bakers to write aracist epithet on a cake rather than an anti-same-sex-marriage message.In Justice Gorsuch's view, would the commission's acquiescenceto the bakers' refusal to do so constitute discrimination forFirst-Amendment purposes? Would Justice Gorsuch say that a baker'srefusal to write a racist epithet on a cake was just likePhillips's refusal to make a cake for a same-sex couple? It seemsdoubtful, because in this hypothetical, the customer's animus wouldnot be grounded in religion, and presumably would not, in JusticeGorsuch's view, implicate constitutional protection.

To reframe this a bit, here was Justice Gorsuch's query: Whydid the commission allow for a secular belief in non-discrimination butnot a religious belief that requires discrimination? (97) According toJustice Gorsuch, the commission, a state actor, would have to be neutralas between the two. (98) (We might say that the problem was disallowingMr. Jack's claim while vindicating the same-sex couple's claimagainst Phillips; (99) maybe if the commission had denied both claims,it could have restored itself to what Justice Gorsuch would haveconsidered a neutral posture). (100) If both claims were equal inconstitutional weight, then so must have been the beliefs underlyingeach: in one case, a secular belief in non-discrimination, and in theother, a religious belief requiring discrimination. Justice Gorsuchwrote,

Nothing in the Commission's opinions suggests any neutral principle toreconcile these holdings. If Mr. Phillips's objection is "inextricablytied" to a protected class [under Colorado law--sexual orientation],then the bakers' objection in Mr. Jack's case must be "inextricablytied" to one as well. For just as cakes celebrating same-sex weddingsare (usually) requested by persons of a particular sexual orientation,so too are cakes expressing religious opposition to same-sex weddings(usually) requested by persons of particular religious faiths. In bothcases the bakers' objection would (usually) result in turning downcustomers who bear a protected characteristic. In the end, theCommission's decisions simply reduce to this: it presumed that Mr.Phillip harbored an intent to discriminate against a protected class inlight of the foreseeable effects of his conduct, but it declined topresume the same intent in Mr. Jack's case even though the effects ofthe bakers' conduct were just as foreseeable. (101)

So, according to Justice Gorsuch, disallowing one claim andallowing the other was itself discrimination, because both claims wereconceptually, and, again, for all legal purposes, the same. (102) Butthis would not be so if the belief in the necessity of discriminatingwas not religious.

After all, a merely secular disposition toward discrimination wouldbe inferior to a secular belief in equality (that must be so if JusticeGorsuch would agree that the former must yield to the latter in mysecular-racist-customer hypothetical). (103) Certainly the Supreme Courtgave no weight to secular beliefs requiring discrimination in Loving v.Virginia (104) when that belief was weighed against the equalityprinciple in the Fourteenth Amendment. (105) In Loving, to justifyVirginia's anti-miscegenation law barring "interracialmarriage," Virginia courts had cited the "legitimatepurposes... 'to preserve the racial integrity of [the state's]citizens,' and to prevent 'the corruption of blood,''a mongrel breed of citizens,' and 'the obliteration ofracial pride,'...." (106) With those stated purposes in mind,the Court held, "[t]here is patently no legitimate overridingpurpose independent of invidious racial discrimination which justifiesthis classification." (107) Overriding what? Overriding theequality principle, of course. So again, when a secular discriminatorybelief is ranked against the equality principle (for constitutionalpurposes), the equality principle prevails. The two are not on the sameplane.

But when religion is joined with the belief that discrimination issanctioned or required--when it is not just a secular attitude--then wehave a different matter. We have tethered a hot-air-balloon to an anvil,and now the discriminatory belief is lifted to the same plane as theequality principle, because that secular principle, embodied as it is inone constitutional amendment, (108) cannot outrank the free-exerciseprinciple embodied in another. (109) The two (religion-baseddiscrimination and the secular notion of equal treatment) only becomeequivalent when discriminatory animus is directed against a group thatis biblically condemned (110)--based on the religiousness of the belief.(111) Since the discriminatory belief was inferior to the idea ofequality until religion hoisted the two into equilibrium, (112) we seethat religious belief is inherently of more value than secularattitudes--or what we might call religious non-belief.

So who is protected from whom? The religious believer is protectedfrom the secular non-believer. That is the First-Amendment world we nowoccupy, and non-believers had best be ready to litigate within thisframework--by making of themselves believers (in something). (113)

The Court's elevation of belief over non-belief, and its driftfrom dynamic to prophylactic free exercise, seems synchronized with theshifting political tactics of what one scholar calls the Religious Rightas to LGBT-rights issues:

From the 1950s through the 1980s, the Religious Right regularly reliedon a narrative that vilified "hom*osexuals" as pedophiles and childmolesters and that pathologized hom*osexuality as a mental illness.Thus, the argument against LGBT civil rights was outwardly attacking:it was based on lashing out against LGBT people with blatant hom*ophobicand antigay rhetoric based on personal qualities, characteristics, andconduct, rather than based on any qualities, characteristics, orconduct of those opposed to LGBT civil rights. This narrative wasemployed to create affirmatively anti-LGBT laws, such as bans on LGBTteachers in public schools, or to roll back civil rights protectionsfor LGBT people. That narrative was supported by the force ofconstitutional law. (114)

And from a socio-political perspective, this anti-LGBT posture madesense:

Like any cultural tradition[,] a dominant... culture must constantly bereproduced and sustained. For that reason, subcultural discourses orinterpretations of reality represent "oppositional readings," deviantthreats to the complex web of meanings enforced by the dominantculture. For the dominant culture to maintain its position, it mustneutralize or subdue any such threats.... [T]he dominant culture canactively exclude and objectify the members of the subcultural group.With this... form of redefinition, the dominant group may acknowledgethe differences of the subculture, but those differences now establishthe inferiority of the subcultural group. In short, the dominantculture defines difference from itself as inferiority. (115)

But there may have been a shift in rhetorical emphasis in theanti-LGBT movement:

The Religious Right's outward-attacking narrative changed dramaticallyin the late 1990s and into the 2000s as more people came out as gay,lesbian, bisexual, or transgender and as the LGBT community experiencedvictories--legislatively, through judicial decree, and in the court ofpublic opinion. Today, the tables have largely turned. Gone (mostly)are the days attacking the "other"--of denigrating and maligning gay,lesbian, bisexual, and transgender people based simply on their sexualorientation or gender identity. Overtly anti-LGBT rhetoric has becomesocially unacceptable and thus no longer "utterable." What was once anoutwardly attacking anti-LGBT narrative has become an inwardlyprotective one that is couched in the narrative of "religious liberty."In short, the Religious Right has gone from attacker to victim in thenational dialogue about LGBT equality. (116)

This is an interesting observation, and it may provide oneexplanation for the shift discussed in this article: if the ReligiousRight has gone from attacker to victim in its rhetoric and its politicalmessaging, then so too must a sympathetic Court move from dynamic toprophylactic free exercise.

III. PROPOSING A NEW VOCABULARY IN THE AGE OF PROPHYLACTIC FREEEXERCISE

We are headed inexorably into an age of prophylactic free exercise:a paradigm under which belief, and especially the religious beliefs ofthe dominant religious tradition in the United States, (117) is of amanifestly higher constitutional rank than non-belief, or what we oftencall agnosticism. (118) The Court is likely to regard the FirstAmendment as protecting beliefs and the expression of beliefs; ideas andthe expression of ideas--and to regard non-belief or agnosticism as theabsence of ideas and the absence of expression, rendering the FirstAmendment entirely inapposite as to conscientious predispositions orchoices or activities that are framed as contrary to belief rather thanas belief.

To cope with the shifting ideology on the Court, advocates fornon-adherents to any religion should take care to develop a newvocabulary:

[L]anguage looms as [a]... direct means of implementing power. AsMichel Foucault says: "Discourse transmits and produces power." Our"distinct ways of talking about and interpreting events" constitute theshape of our very being-in-the-world. The conceptual distinctions andcriteria of legitimation embedded in our discursive practices shape ourunderstandings and perceptions of social events and reality. Hence, inthis... way, language appears as a technique of power because it helpsto produce and reproduce meaning and, thus, social reality. (119)

Language is power, and when it comes to litigating constitutionalcases, nowhere is that power more crucially exercised than it is inframing the issue. (120) In conceding the discursive advantage to"believers" in the contest between belief and non-belief,non-believers will largely have lost the rhetorical battle before it haseven begun. (121)

A. Beliefs, Attitudes, and Disbelief

Citing the work of a scholar named Milton Rokeach, Professor LinzAudain explains the importance of distinguishing between belief,attitude, and disbelief:

Since Rokeach's model of dogmatism is premised on a model of the natureof beliefs, it is useful to focus on the distinction between attitudesand beliefs. That distinction is: while a belief is what "links anobject to so some attribute," an "attitude refers to a person'sfavorable or unfavorable evaluation of [that] object...." An attitudethen, is either positive or negative, or exists along a "bipolaraffective dimension," reflecting the net effect of several beliefsabout a given object. Note then, that an attitude focuses on an object,while a belief mediates between an object and an attribute. "Objects"and "attributes" refer to "any discriminable aspect of an individual'sworld."......With the preceding in mind, it is now possible to turn to aconsideration of the relevant theoretical framework. That framework is,in essence, the psychological analysis of beliefs since, underRokeach's analysis, intolerance or dogmatism is equivalent to a "closedsystem of beliefs"....Rokeach, in his original work, defined a "belief system" as consistingof "all the beliefs, sets, expectancies, or hypotheses, conscious andunconscious, that a person at a given time accepts as true of the worldhe lives in." A "disbelief system" was defined as consisting of a"series of subsystems... [of] the disbeliefs, sets, expectancies,conscious and unconscious, that... a person at a given time rejects asfalse." (122)

To illustrate, I will use my own experience as a fan of BradleyUniversity's (my undergraduate alma mater's) basketball team.That experience has been, as sports-fan experiences go, disappointing ifnot tragic. I have grown accustomed to expecting that Bradley, no matterwhat team it is up against, will lose. (123) That is an attitude: as tothe object Bradley basketball team, my attitude is pessimism, and thispessimism exists along a "bipolar affective dimension" (124):in this relationship, there are only two aspects of my life atplay--Bradley basketball and my own disposition toward it.

But then suppose I discover that Bradley is to play the Ramblers ofLoyola University of Chicago (of recent Final-Four vintage (125)). Nowthere are more objects and attributes in play. Because my attitude aboutBradley is pessimistic, and because my attitude about Loyola is that itsbasketball team is usually likely to win, (126) I disbelieve thatBradley will win the game; that is an idea that, at any given time, I amlikely to regard as false.

As to what I believe--I believe that Loyola will win the game (or,one might say, that Bradley will lose). In this, I am applying anattribute (likely to win) to an object (Loyola) as it relates to anotherobject (Bradley) and its own attribute (likely to lose).

This may be a mundane illustration, but it makes the point. And asapplied to free-exercise claims before the emerging ideological majorityon the Supreme Court, litigants had best avoid attitudes (meredispositions in a bipolar construct involving only the individual andeither her positive or negative appraisals of an object (127)) ordisbelief systems, which reflect only those "expectancies"that an individual, at a given time, rejects as likely to be false.(128)

These variations on one's conception of human thoughtgenerally seem well-suited to explaining, at least to some extent, theemerging Supreme Court majority's view of when the First Amendmentapplies, who may invoke it, and who it protects from whom. (129) Onemight say that the Court sees the more dogmatic tenets of religiousadherents as a belief system, whereas it sees skepticism, agnosticism,or even atheism as merely attitudes (a general disposition toward anobject--religion--without any reference to an attribute against which itmight be juxtaposed) or disbelief systems (relating only to therejection of perceived falsehoods rather than any exposition as to whatis accepted as true). (130)

The Court, under the emerging application of prophylactic freeexercise, sees only an affirmative belief system as the properbeneficiary of First Amendment protections, and not mere attitudes ordisbelief systems--and the Court therefore seeks to protect believersagainst non-believers. It goes almost without saying, then, thatfree-exercise protections may be invoked only in defense of some beliefsystem by a believer, and not in defense of some disbelief system infavor of a non-believer.

As hopeless as this may seem for non-adherents, the framing of muchagnostic thought as non-belief is conceptually unnecessary. There is away to reframe the debate. A scholar named Iain T. Benson, in a contextdifferent than the one explored here, recently lamented:

[P]eople discuss 'belief as if it is limited to 'religion' and analyzethe difficulty of defining 'religion' as if it somehow gives a freepass to atheist and agnostic believers and the often unnoticed oruncommented upon dominance of these positions in law and public policy.It is a quirk of our post Enlightenment age that the category of'believer' is more or less reserved for religious believers and likelyto be unevaluated as akin to religion, for all others. Since everyoneis a believer in something, the tendency to analyze only religion andreligious belief as if problems of definition do not apply to atheistand agnostic believers causes a series of significant problems. (131)

Indeed this is so. What has gotten lost in much of the Court'sfocus on belief, and its implicit insistence that only dogmatic beliefis protected under the First Amendment, (132) is that secular notionsabout social issues can themselves be a certain kind of dogmatic belief,and that secularism is itself, when properly framed, a belief aboutreligion. (133) Although people who describe themselves as atheistic oragnostic may be uncomfortable reframing their beliefs in this way, theymay have no choice if they wish to appeal to a Court that will otherwisedismiss their concerns as outside the bounds of First-Amendment freeexercise or even free expression.

So secularists should start to frame their beliefs as affirmativeand assertive, not merely passive and agnostic. Because the Court hasnever conceptualized non-belief as belief, it so far has seen thebeliever-as-victim paradigm in religion cases as a one-way proposition;it casts religious dogmatists as the victims of secular overreach. (134)That is because the Court has never been forced to tangle withnon-adherents as being believers themselves. (135) But non-adherents arebelievers, and they must therefore present themselves as believers, andthey must thereby point out that they also may be victims in casescentered around governmental hostility toward believers and beliefs.

When non-adherents to the dominant religion are passive rather thanaggressive in asserting their own beliefs, the Court tends to read theirsilence as acquiescence or even as endorsem*nt of the dominant religionand its symbols and traditions:

Members of the subcultural group go unheard (and sometimes unseen) bymembers of the dominant cultural and other subcultural groups. Indeed,in the face of cultural imperialism, outgroup members sometimesfiguratively and sometimes literally stop speaking, so that there isnothing to be heard. In Lynch, for example, the Court supported itsconclusion by noting that, prior to that lawsuit, nobody had complainedabout the creche even though it had been publicly displayed for fortyyears. To the Court, this silence meant that the creche had notgenerated dissension--apparently, everybody happily supported theChristmas display. The Court overlooked the possibility, however, thatChristian cultural imperialism had produced the silence of religiousoutgroup members. Silence often demonstrates domination, not consensus.(136)

B. Non-Belief as Belief

So it is time for what Professor Feldman calls religious orcultural "outgroup members" to frame their arguments in termsthat are affirmative, vociferous, and bold. (137) Helpfully, there isample support for the framing of what many now see as non-belief (oridiosyncratic belief) as belief-both in history and in judicialprecedents.

1. Historical Support for the View that Non-Belief Is Belief

Historically, one need not look further than Thomas Paine andThomas Jefferson. In The Age of Reason, Thomas Paine wrote,

I believe in one God, and no more; and I hope for happiness beyond thislife.I believe in the equality of man; and I believe that religious dutiesconsist in doing justice, loving mercy, and endeavoring to make ourfellow creatures happy.But, lest it should be supposed that I believe in many other things inaddition to these, I shall... declare the things I do not believe, andmy reasons for not believing them.I do not believe in the creed professed by the Jewish church, by theRoman church, by the Greek church, by the Turkish church, by theProtestant church, nor by any church that I know of. My own mind is myown church.All national institutions of churches, whether Jewish, Christian orTurkish, appear to me no other than human inventions, set up to terrifyand enslave mankind, and monopolize power and profit.I do not mean by this declaration to condemn those who believeotherwise; they have the same right to their belief as I have to mine.But it is necessary to the happiness of man, that he be mentallyfaithful to himself. Infidelity does not consist in believing or indisbelieving; it consists in professing to believe what he does notbelieve. (138)

In this passage, Paine clearly expresses his understanding of thedifference between disbelief and belief, and he obviously sees them astwo sides of the same coin. But his emphasis, as it should be, is on hisaffirmative beliefs, and after a cursory nod to deism, he casts whatmight seem to some a number of secular beliefs as being, in truth,religious beliefs: his beliefs in equality, justice, mercy, happiness,and, critically, his statement, "My own mind is my ownchurch." (139)

Why would Paine's claim that his own mind was his own churchnot be a religious belief, then-meaning a belief about religion-thatshould acquire as much buoyancy as a constitutional matter as the beliefof a religious cake maker that hom*osexuality is an abomination?

About his Statute on Religious Freedom, "Jefferson rejoicedthat there was finally 'freedom for the Jew and the Gentile, theChristian and the Mohammeden, the Hindu and infidel of everydenomination'--note his respect, still unusual today, for thesensibilities of the 'infidel.'" (140) In classing"infidels" among "the Jew and the Gentile, the Christianand the Mohammeden [and] the Hindu," Jefferson implicitlyrecognized the infidel--the non-believer--not just as having a disbeliefsystem, but also--like the others among whom the infidel was classed--ashaving a belief system. (141) There should be no difference as among thebeliefs of Jews, Gentiles, Christians, Muslims, Hindus, or infidels.

Jefferson also wrote, "it does me no injury for my neighbourto say there are twenty gods, or no God. It neither picks my pocket norbreaks my leg." (142) Here too there is an implicit recognitionthat the statement there is no God is a belief, not just a disbelief.Had Jefferson constructed this sentence to say, "It does me noinjury for my neighbour not to say (or not to believe that) there is aGod," he would have framed this disposition as disbelief; but bywriting, "it does me no injury for my neighbour to say that thereare twenty gods, or no God," and by joining polytheism with atheismin this way, Jefferson framed this disposition as belief-not merely asan attitude or disbelief. Put another way, the phrase "to say thatthere are twenty gods, or no God" involves not just a bipolarexpression of a negative or positive disposition toward an object, orthe expression of an expectancy that one regards as false, but ratherthe application of an attribute (a studied opinion about the likelihoodof there being any god) to an object (the proposition that there are 20gods or that there is no god).

Put as simply as possible, it is one thing to say, "I amsuspicious of all religious claims," or, "I do not believethere is a god," and quite another to say, "I believe thatthere is no god." The first is an attitude; the second isdisbelief; the third--the way Jefferson put it--is belief.

In more modern times, thinkers like Sam Harris (143) and RichardDawkins (144) and Christopher Hitchens (145) have set a tone that pointsin this direction. In an essay that was meant to criticize these"new atheists," conservative religious scholar Reza Asianwrote,

New Atheism... isn't even mere atheism (and it certainly is not "new").What Harris, Dawkins and their ilk are preaching is a polemic that hasbeen around since the 18th century--one properly termed, anti-theism.The earliest known English record of the term "anti-theist" dates backto 1788, but the first citation of the word can be found in the 1833edition of the Oxford English Dictionary, where it is defined as "oneopposed to belief in the existence of a god."... In other words, whilean atheist believes there is no god and so follows no religion, ananti-theist opposes the very idea of religious belief, often viewingreligion as an insidious force that must be rooted fromsociety--forcibly if necessary.The late Christopher Hitchens, one of the icons of the New Atheistmovement, understood this difference well. "I'm not even an atheist somuch as I am an antitheist," he wrote in his "Letters to a YoungContrarian." "I not only maintain that all religions are versions ofthe same untruth, but I hold that the influence of churches, and theeffect of religious belief, is positively harmful."...For a great many atheists, atheism does not merely signify "lack ofbelief but is itself a kind of positive worldview, one that "includesnumerous beliefs about the world and what is in it," to quote theatheist philosopher Julian Baggini. Baggini cautions against viewingatheism as a "parasitic rival to theism." Rather, he agrees with thehistorian of religions James Thrower, who considers modern atheism tobe "a self-contained belief system"--one predicated on a series ofpropositions about the nature of reality, the source of human morality,the foundation of societal ethics, the question of free will, and so on.[I]n the century that followed the Enlightenment, a stridently militantform of atheism arose... [b]y the middle of the 19th century, thismovement was given its own name--anti-theism--specifically todifferentiate it from atheism....The appeal of New Atheism is that it offered non-believers a muscularand dogmatic form of atheism specifically designed to push back againstmuscular and dogmatic religious belief. Yet that is also, in myopinion, the main problem with New Atheism. In seeking to replacereligion with secularism and faith with science, the New Atheists have,perhaps inadvertently, launched a movement with far too manysimilarities to the ones they so radically oppose. Indeed, while wetypically associate fundamentalism with religiously zealotry, in so faras the term connotes an attempt to "impose a single truth on the pluralworld"--to use the definition of noted philosopher Jonathan Sacks--thenthere is little doubt that a similar fundamentalist mind-set hasovercome many adherents of this latest iteration of anti-theism.Like religious fundamentalism, New Atheism is primarily a reactionaryphenomenon, one that responds to religion with the same venomous irewith which religious fundamentalists respond to atheism. What one findsin the writings of anti-theist ideologues like Dawkins, Harris andHitchens is the same sense of utter certainty, the same claim to amonopoly on truth, the same close-mindedness that views one's ownposition as unequivocally good and one's opponent's views as not justwrong but irrational and even stupid, the same intolerance foralternative explanations, the same rabid adherents (as anyone who hasdared criticize Dawkins or Harris on social media can attest), and,most shockingly, the same proselytizing fervor that one sees in anyfundamentalist community....[L]et's stop calling New Atheism, "atheism," and start calling it whatit is: anti-theism. (146)

This broadside was obviously meant as a critique (and a scathingone) of the new language of public intellectuals who number among"outgroup members." And maybe, for purposes of the politicalor philosophical debates around religion, it is a point against whichself-styled atheists or agnostics would wish to push back. But as alegal, constitutional matter--as a First-Amendment free-exercisematter--this is precisely the frame that advocates for secular causesshould adopt.

2. Judicial Precedent for Honoring Idiosyncratic (Non-Sectarian)Belief

The Supreme Court has said that "religious beliefs need not beacceptable, logical, consistent, or comprehensible to others in order tomerit First Amendment protection." (147) Furthermore, "[t]heConstitution protects not just popular religious exercises from thecondemnation of civil authorities. It protects them all." (148)

In Thomas v. Review Board of the Indiana Employment SecurityDivision, the Court considered a state court decision concluding that aJehovah's Witness's conscientious objection to buildingarmaments was not sufficiently religious because he struggled toarticulate a religious belief:

In reaching its conclusion, the [state] court seems to have placedconsiderable reliance on the facts that Thomas was "struggling" withhis beliefs and that he was not able to "articulate" his beliefprecisely. It noted, for example, that Thomas admitted... that he wouldnot object to "working for [his employer]... [producing] the rawproduct necessary for the production of any kind of tank... [becausehe] would not be a direct party to whoever they shipped it to [and]would not be... chargeable in... conscience....The court found this position inconsistent with Thomas' statedopposition to participation in the production of armaments. But Thomas'statements reveal no more than that he found work in [a] roll foundrysufficiently insulated from producing weapons of war. We see,therefore, that Thomas drew a line, and it is not for us to say thatthe line he drew was an unreasonable one. Courts should not undertaketo dissect religious beliefs because the believer admits that he is"struggling" with his position or because his beliefs are notarticulated with the clarity and precision that a more sophisticatedperson might employ.The [state] court also appears to have given significant weight to thefact that another Jehovah's Witness had no scruples about working ontank turrets; for that other Witness, at least, such work was"scripturally" acceptable. Intrafaith differences of that kind are notuncommon among followers of a particular creed, and the judicialprocess is singularly ill equipped to resolve such differences inrelation to the Religion Clauses. One can, of course, imagine anasserted claim so bizarre, so clearly nonreligious in motivation, asnot to be entitled to protection under the Free Exercise Clause; butthat is not the case here, and the guarantee of free exercise is notlimited to beliefs which are shared by all of the members of areligious sect. Particularly in this sensitive area, it is not withinthe judicial function and judicial competence to inquire whether thepetitioner or his fellow worker more correctly perceived the commandsof their common faith. Courts are not arbiters of scripturalinterpretation. (149)

This view was ratified and endorsed by the Court, per JusticeAlito, in Holt v. Hobbs. (150)

As one can see, the Court, in interpreting this language, could useit to go either way as to whether to give the beliefs of outgroupmembers the same weight as the beliefs of sectarian traditionalists.

The better reading would be that, as to a contest between, forexample, the competing beliefs that a) a holy book points one to aproper church, or b) one's own mind is one's own church, theCourt is "singularly ill equipped to resolve such differences"(151) and should therefore treat the two as being of equalconstitutional weight. On the other hand, the Court could interpret thebeliefs of outgroup members as being "so bizarre, so clearlynonreligious in motivation, as not to be entitled to protection underthe Free Exercise Clause." (152) From the perspective of anyonetrying to discern the real motivations of the Court, either outcomewould be useful.

As to the first possibility, that would obviously entitle outgroupmembers to their own bases for objecting to otherwise generallyapplicable and even-handed laws. As to the second possibility, thatwould provide an illuminating entree into the real purposes animatingthe Court. Religious adherents who insist that only their sectarianbeliefs are to be credited under the First Amendment would ask the Courtto craft a rule like this: a person's religious belief is notprotected under the First Amendment unless she 1) partakes in somesectarian tradition that proposes the existence of a supernaturalexplanation for the existence of the universe; and 2) adheres to someaffirmative interpretation (rather than denial or skepticism) of ascroll, holy book, or text that posits the existence of a supernaturalauthority.

This would be a useful exercise for the Court to undertake: eitherit will have to recognize that anti-theism, as Professor Asian puts it,is a belief about religion that is protected under the First Amendment,(153) or it will have to transparently express its preference forsectarian religion over non-religion, even when non-religion, asproperly framed, entails certain discrete and affirmative beliefs aboutreligion. If the Court does that, then it will not only do violence toits own stated preference for neutrality, but also announce our descentinto de facto religious establishment. (154)

C. Some Possible Applications for the New Vocabulary of Belief

If secularists do not merely disbelieve, but also believe, thentheir beliefs should require the application of prophylactic freeexercise just as surely as any sectarian belief will require itsapplication.

Certainly, it may even be that more progressive views or beliefsare grounded in doctrine that is overtly sectarian:

[Even as to secularists, a] religious orientation persisted intomodernity. Indeed,... even a later theorist of the secular state suchas Thomas Hobbes--recently lauded as the seminal rejecter of "politicaltheology" and advocate of the "Great Separation"--devoted as many pagesin his Leviathan to supporting his political views through painstakingscriptural exegesis and theological exposition as to the more secularsocial contract reasoning we focus on today. And... the most basicjustifications for religious freedom given during the American foundingremained at bottom religious in character. (155)

But what about the beliefs of outgroup members that are notgrounded in such scriptures or holy books? It would seem that thosebeliefs, too, when properly framed, should result in the giving way ofgenerally applicable and neutral laws that offend such beliefs, if thosebeliefs are sincerely held and are also, again, beliefs about religion.

Take, for example, a woman who believes that no supervising deitycommands her to carry a pregnancy to term.

When Hobby Lobby filed its 2012 lawsuit objecting to the mandate onreligious grounds--with the Supreme Court ultimately ruling in itsfavor--it didn't do so because of a general objection to birth control.Rather, it did so because certain forms of birth control, includingPlan B, also known as the "morning after pill," could be considered anabortifacient because it prevents implantation of an already fertilizedegg. Hobby Lobby founder David Green wrote in a 2012 op-ed for USAToday: "Being Christians, we don't pay for drugs that might causeabortions. Which means that we don't cover emergency contraception, themorning-after pill or the week-after pill. We believe doing so mightend a life after the moment of conception, something that is contraryto our most important beliefs." (156)

Since the Supreme Court accepted that frame, must it not alsoaccept the claim of a woman that she has her own religion, or even thather own mind is her own church--and that, therefore, the application ofmajoritarian religious dogmas to her choices would be "contrary to[her] most important beliefs?" (157)

To be sure, we will still have debates about the government'sinterest in protecting fetal life and in regulating abortion proceduresas it must regulate any medical procedure. (158) But as to the FirstAmendment, women seeking freedom from the application of lawsrestricting access to abortion services would be on solid ground tochallenge such laws, under the prophylactic application of freeexercise, if they frame

their choices as matters of belief about religion, not merely secularattitudes.

And what about the LGBT-rights movement? As to any law that targetsLGBT people, or that requires their participation in a society wheresectarian beliefs offend their own religious sensibilities, they toowould have standing to object to the application of any otherwisegenerally applicable and neutral law. And why not? When it comes to theBook of Leviticus and its preachments about men lying with other men,(159) it is not just that the LGBT individual might disbelieve it; it ismore likely, rather, that he believes against it--that he believes thatit is the product of frenetic fever dreams conjured during an ancientcivilization--and, much more importantly, that as a religious matter, agay person is not just entitled, but compelled, to seek a life offulfillment, intimacy, and joy, free from the cruelties of wicked writspenned millennia ago.

CONCLUSION

If a citizen--let's say a cake maker--has a right to conducthis civic rather than personal life with fealty to his dogmaticinsistence that a supervising God exists, does another citizen--say agay person or a woman seeking an abortion--have a corresponding right toconduct his or her civic life with fealty to his or her dogmaticinsistence that a supervising God does not exist, or that he or she ishis or her own supervising god?

The Supreme Court, with Justice Kavanaugh replacing JusticeKennedy, is almost sure to move away from the notion of dynamic andtoward the notion of prophylactic free exercise; it will protectreligion from non-religion, and only belief rather than mere attitudesor disbelief will likely be eligible for First-Amendment protection.That being so, those who now cast themselves as non-believers should,for purposes of constitutional litigation, recast themselves asbelievers--in whatever ideas about religion they do sincerely,affirmatively hold to be true.

It will be time for atheists and agnostics to come out of thecloset and agitate--and to aggressively assert their own beliefs aboutgods, spirituality, and the universe. The contest of ideas must bejoined, for the First Amendment will, more than ever, be interpreted asprotecting ideas, not the absence of ideas.

Brendan Beery (*)

(*) Professor of Law, Western Michigan University Thomas M. CooleyLaw School. B.A., Bradley University (1995); J.D., summa cum laude,Thomas M. Cooley Law School (1998). Many thanks to my colleague,Professor Emeritus Daniel R. Ray, for his boundless patience as I pickedhis brain while writing this article. Thanks also to the editors ofAlbany Law Review for their outstanding work.

(1) Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n,138 S. Ct. 1719 (2018).

(2) See id. at 1723, 1726.

(3) See id. at 1723, 1725-26.

(4) See id. at 1723-24. ("The Court's precedents makeclear that the baker, in his capacity as the owner of a business servingthe public, might have his right to the free exercise of religionlimited by generally applicable laws. Still, the delicate question ofwhen the free exercise of his religion must yield to an otherwise validexercise of state power needed to be determined in an adjudication inwhich religious hostility on the part of the State itself would not be afactor in the balance the State sought to reach. That requirement,however, was not met here.").

(5) See id. at 1729-31.

(6) See id. at 1732-34 (Kagan, J., concurring, joined by Breyer,J.).

(7) See id. at 1734-40 (Gorsuch, J., concurring, joined by Alito,J.).

(8) See id. at 1740-48 (Thomas, J., concurring, joined by Gorsuch,J.).

(9) See, e.g., Trinity Lutheran Church of Columbia, Inc. v. Comer,137 S. Ct. 2012, 2025 (2017) (showing that the Court was more likely todeem a legislative provision unconstitutional due to its targeting of agroup based on their status as a religious organization than to findthat the same generally applicable law applies to that organization).

(10) See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751,2762, 2785 (2014) (finding that the Religious Freedom and RestorationAct precludes legislation that limits business' right not to fundcertain forms of contraception based on religious beliefs regardless).

(11) See infra notes 48-54 and accompanying text.

(12) See infra notes 21-25 and accompanying text; see also TrinityLutheran, 137 S. Ct. at 2024 (finding a state policy denying a qualifiedreligious organization a public benefit solely because of its religiouscharacter to be a violation of the Free Exercise Clause despite such apolicy being generally applicable and religiously neutral).

(13) See infra notes 145-49 and accompanying text. I am fully awareof how distasteful this may be to some. See, e.g., CHRISTOPHER HITCHENS,GOD IS NOT GREAT: HOW RELIGION POISONS EVERYTHING 10-11 (2007)("And yet--the believers still claim to know! Not just to know, butto know everything. Not just to know that god exists, and that hecreated and supervised the whole enterprise, but also to know what'he' demands of us--from our diet to our observance to oursexual morality. In other words, in a vast and complicated discussionwhere we know more and more about less and less, yet can still hope forsome enlightenment as we proceed, one faction--itself composed ofmutually warring factions--has the sheer arrogance to tell us that wealready have all the essential information we need. Such stupidity,combined with such pride, should be enough on its own to exclude'belief from the debate"). I do not propose this tack as aprescription for the debate about religion in philosophy or politics,and certainly not for all time, even in the law. I simply propose it asa new vocabulary for litigating free-exercise cases before the presentiteration of the Supreme Court.

(14) U.S. CONST, amend. I.

(15) See Mitchell v. Helms, 530 U.S. 793, 807 (2000) (citing Lemonv. Kurtzman, 403 U.S. 602, 612-13 (1971)).

(16) See County of Allegheny v. ACLU, 492 U.S. 573, 592 (1989)(citing Engel v. Vitale, 370 U.S. 421,436(1962)).

(17) See Lee v. Weisman, 505 U.S. 577, 587 (1992) (quoting Lynch v.Donnelly, 465 U.S. 668, 678 (1984)).

(18) See Emp't Div., Dep't of Human Res. of Or. v. Smith,494 U.S. 872, 877 (1990) (citing Presbyterian Church in U.S. v. MaryElizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S 440, 445-51(1969); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 107-08, 114(1952); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696,708-11 (1976)).

(19) Priests for Life v. U.S. Dep't of Health & HumanServs., 808 F.3d 1, 4 (D.C. Cir. 2015) (Brown, J., dissenting) (quotingJohn Locke, A Letter Concerning Toleration, reprinted in 5 THE WORKS OFJOHN LOCKE 5, 9 (12th ed. 1824)).

(20) See Jesse H. Choper, The Religion Clauses of the FirstAmendment: Reconciling the Conflict, 41 U. PITT. L. REV. 673, 676-77(1979).

(21) See id. at 673-74.

(22) See id. at 674.

(23) See Emp't Div., 494 U.S. at 878-79 ("We have neverheld that an individual's religious beliefs excuse him fromcompliance with an otherwise valid law prohibiting conduct that theState is free to regulate.").

(24) See Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S.Ct. 2012, 2025 (2017) (Thomas, J., concurring, joined by Gorsuch, J.).

(25) See Masterpiece Cakeshop, Ltd. v. Colo. Civil RightsComm'n, 138 S. Ct. 1719, 1735-36 (2018) (Gorsuch.. J., concurring).

(26) Exercise, MERRIAM-WEBSTER DICTIONARY,https://www.merriam-webster.com/dictionary/exercise (last visited Sept.30, 2018).

(27) Exercise, OXFORD LIVING DICTIONARIES,https://en.oxforddictionaries.com/definition/exercise (last visitedSept. 30, 2018).

(28) Exercise, CAMBRIDGE ENGLISH DICTIONARY,https://dictionary.cambridge.org/us/dictionary/english/exercise (lastvisited Sept. 30. 2018).

(29) Exercise, COLLINS ENGLISH DICTIONARY,https://www.collinsdictionary.com/us/dictionary/english/exercise (lastvisited Sept. 30, 2018).

(30) U.S. Const, amends. I-X.

(31) See Brendan T. Beery, How to Argue Liberty Cases in aPost-Kennedy World: It's Not About Individual Eights, But StatePower and the Social Compact, 75 NAT'L LAW. GUILD REV. 1, 4 (2018)("Constitutional rights... are there to restrain governmentalintrusions into their exercise...").

(32) Free Exercise Clause, WEX LEGAL DICTIONARY,https://www.law.cornell.edu/wex/free_exerciseclause (last visitedOctober 1, 2018).

(33) Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520(1993).

(34) See id. at 527.

(35) Id. at 544.

(36) Id. at 531-32 (citing Emp't Div., Dep't of HumanRes. of Or. v. Smith, 494 U.S. 872 (1990)).

(37) Lukumi, 508 U.S. at 547.

(38) Id. at 531 (citing Emp't Div., Dep't of Human Res.of Or. v. Smith, 494 U.S. 872 (1990)).

(39) Lukumi, 508 U.S. at 531 (quoting Frazee v. Ill. Dept. ofEmp't Sec, 489 U.S. 829, 834 n.2 (1989)) (citing Thomas v. ReviewBd. of Ind. Emp't Sec. Div., 450 U.S. 707, 714 (1981)).

(40) McDaniel v. Paty, 435 U.S. 618 (1978).

(41) Fowler v. Rhode Island, 345 U.S. 67 (1953).

(42) Lukumi, 508 U.S. at 532-33 (first quoting Bowen v. Roy, 476U.S. 693, 703 (1986); then quoting Emp't Div., 494 U.S. at 877)).

(43) Lukumi, 508 U.S. at 532.

(44) See McDaniel, 435 U.S. at 621; Fowler, 345 U.S. at 67.

(45) Emp't Div., 494 U.S. at 877-78.

(46) Id. at 879 (quoting Minersville Sch. Dist. Bd. of Educ. v.Gobitis, 310 U.S. 586, 594-95 (1940)).

(47) Mark Grabowski, Give Gorsuch a 21" Century Litmus Test,35 YALE J. ON REG. ONLINE 1 (2017).

(48) See Masterpiece Cakeshop, Ltd. v. Colo. Civil RightsComm'n, 138 S. Ct. 1719, 1734 (2018) (Gorsuch, J., concurring).

(49) See generally Trinity Lutheran Church of Columbia, Inc. v.Comer, 137 S. Ct. 2012 (2017) (holding that the Missouri Department ofNatural Resources excluding the Trinity Lutheran church from publicbenefit solely because it is a church is a violation of the FirstAmendment).

(50) See generally Burwell v. Hobby Lobby Stores, Inc.. 134 S. Ct.2751, 2785 (2014) ("The contraceptive mandate [requiring employerswith 50 or more employees to offer FDA approved contraceptives amongother procedures as part of the Affordable Care Act of 2010], as appliedto closely held corporations, violates [Religious Freedom RestorationAct of 1993]. Our decision on that statutory question makes itunnecessary to reach the First Amendment claim raised.").

(51) See Trinity Lutheran Church, 137 S. Ct. at 2025 (Thomas, J.,concurring, joined by Gorsuch, J.).

(52) See Jasmine C. Lee et al., Where Kavanaugh, Trump'sNominee, Might Fit on the Supreme Court, N.Y. TIMES (July 9, 2018),https://www.nytimes.com/interactive/2018/07/09/us/politics/supreme-court-kavanaugh-justice-conservative.html.

(53) This is why the optimism of some commentators that JusticeKennedy would stand in the way of an ideological lurch in theCourt's interpretation of the religion clauses, while that optimismwas somewhat well-grounded as long as Justice Kennedy remained on theCourt, is no longer operative. See, e.g., Kyle C. Velte, All Fall Down:A Comprehensive Approach to Defeating the Religious Right'sChallenges to Antidiscrimination Statutes, 49 CONN. L. REV. 1, 17-18(2016) ("Justice Kennedy's thoughts on the issue of theinterplay of religious liberty--as reflected in [federal statutes] andthe First Amendment--and antidiscrimination laws are important given hiscentral role in the Court's pro-LGBT rights jurisprudence. Thus, ifand when a case presenting the Antidiscrimination Question reaches theCourt, all eyes will be on Justice Kennedy.").

(54) See, e.g., Burwell, 134 S. Ct. at 2785 (Kennedy J.,concurring).

(56) See Trinity Lutheran Church, 137 S. Ct. at 2017.

(56) See id.

(57) Id. at 2022.

(58) Id. at 2021-22 (quoting McDaniel v. Paty, 435 U.S. 618, 626(1978)).

(59) Trinity Lutheran Church, 137 S. Ct. at 2024.

(60) See id. at 2017.

(61) See id. at 2024.

(62) Id. (quoting McDaniel, 435 U.S. at 628).

(63) See Trinity Lutheran Church, 137 S. Ct. at 2025 (Thomas, J.,concurring in part, joined by Gorsuch, J.).

(64) Id. at 2026 (Gorsuch, J., concurring in part).

(65) Id. at 2027 (Sotomayor, J., dissenting).

(66) See id. at 2028-41 (Sotomayor, J., dissenting).

(67) See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2759(2014).

(68) 42 U.S.C. [section] 20000bb (2012).

(69) Burwell, 134 S. Ct. at 2759.

(70) See id.

(71) See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508U.S. 520, 531 (1993) (citing Emp't Div., Dep't of Human Res.of Or. v. Smith, 494 U.S. 872 (1990)).

(72) See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555,559-60 (1992) (noting that deciding cases and controversies is anactivity reserved for the judiciary branch) (citing THE FEDERALIST NO.48 (James Madison)); United States v. Klein, 80 U.S. 128, 147-48 (1872)(holding that Congress does not have authority to change the executivepower of pardon or direct the Court on how decide a case); Marbury v.Madison, 5 U.S. 137, 178 (1803) ("It is emphatically the provinceand duty of the judicial department to say what the law is. Those whoapply the rule to the particular cases, must be of necessity expound andinterpret that rule.").

(73) See Burwell, 134 S. Ct. at 2792 (Ginsburg, J., dissenting)(citing Rasul v. Myers, 563 F.3d 527, 535 (D.C. Cir. 2009)).

(74) Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010)(codified as 42 U.S.C. [section] 18001 (2012)).

(75) See Burwell, 134 S. Ct. at 2769.

(76) See id. at 2775-78.

(77) Id. at 2776.

(78) Id. at 2778.

(79) See generally, Brendan Beery, When Originalism Attacks: HowJustice Scalia's Resort to Original Expected Application inCrawford v. Washington Came Back to Bite Him in Michigan v. Bryant, 59DRAKE L. REV. 1047 (2011) (explaining originalism's application toconstitutional interpretation).

(80) See Burwell, 134 S. Ct. at 2764-65.

(81) Id. at 2787 (Ginsburg, J., dissenting).

(82) Id. at 2785 (Kennedy, J., concurring).

(83) Id.

(84) See Priests for Life v. U.S. Dep't of Health & HumanServs., 808 F.3d 1, 2 (D.C. Cir. 2015).

(85) Id. at 14 (Kavanaugh, J., dissenting).

(86) See id. at 15.

(87) See id. at 5 (Brown, J., dissenting).

(88) See Burwell, 134 S. Ct. at 2759, 2760.

(89) Id. at 15 (Kavanaugh, J., dissenting).

(90) Id.

(91) See id. at 19-21 (Kavanaugh, J., dissenting) (quoting EternalWord Television Network. Inc. v. Sec'y, Dep't of Health &Human Servs., 756 F.3d 1339, 1348 (11th Cir. 2014) (Pryor, J.,dissenting) (citing Wheaton Coll. v. Burwell, 134 S. Ct. 2806, 2812(2014) (Sotomayor, J., dissenting); Hobby Lobby, 134 S. Ct. at 2759;Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 566 (7th Cir. 2014)(Flaum, J., dissenting); Hobby Lobby, 134 S. Ct. at 2778; Thomas v.Review Bd. of Ind. Emp't Sec. Div., 450 U.S. 707, 714-16 (1981)).

(92) See Tara Isabella Burton, What Brett Kavanaugh's PastDecisions on Religious Liberty Mean for the Future of SCOTUS, VOX (July10, 2018), https://www.vox.com/2018/7/10/17553548/brett-kavanaugh-religious-liberty-scotus-supreme-court.

(93) Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n,138 S. Ct. 1719, 1734-35 (2018) (Gorsuch, J., concurring).

(94) See id. at 1734.

(95) See id. at 1734 ("Yet it denied the same accommodation toMr. Phillips when he refused a customer's request that would haverequired him to violate his religious beliefs.... That kind ofjudgmental dismissal of a sincerely held religious belief is, of course,antithetical to the First Amendment and cannot begin to satisfy strictscrutiny.").

(96) See id. at 1736.

(97) See id. at 1734 (Gorsuch, J., concurring). I note here thanany reader who would say that I misuse the word discrimination becauseno belief can embody discriminatory animus when it is a religious beliefwould rather be making my point.

(98) See id. at 1736.

(99) See id. at 1734-35.

(100) See id. at 1740 (Gorsuch, J., concurring); see also JulianneBelaga, Comment, Now You See It, Now You Don't: The Impact ofRFRA's Invalidation on Religious Tithes in Bankruptcy, 14 BANK.DEV. J. 343, 369 (1998) (discussing how a bestowal of benefits on areligious individual may be allowed so long as the benefits provided tothat person are the same as those afforded to all citizens, and thosebenefits are so removed from religious function that the state actioncan be defined as a neutral posture towards religion).

(101) Masterpiece Cakeshop, 138 S. Ct. at 1736.

(102) See id. at 1736.

(103) See supra Part II.

(104) See Loving v. Virginia, 388 U.S. 1, 11 (1967) (citingKorematsu v. United States, 323 U.S. 214, 216 (1944); McLaughlin v.Florida, 379 U.S. 184, 198 (1964)).

(105) Loving, 388 U.S. at 11.

(106) Id. at 7 (quoting Naim v. Naim, 87 S.E.2d 749, 756 (Va.1955)).

(107) Loving, 388 U.S. at 11.

(108) See U.S. CONST, amend. XIV.

(109) See U.S. CONST, amend. I.

(110) See Leviticus 18:22.

(111) See id.

(112) See Velte, supra note 53, at 11-12.

(113) See infra notes 117-20 and accompanying text.

(114) Velte, supra note 53, at 8-9.

(116) Stephen M. Feldman, Principle, History, and Power: The Limitsof the First Amendment Religion Clauses, 81 IOWA L. REV. 833, 854-55(1996).

(116) Velte, supra note 53, at 9.

(117) See Feldman, supra note 115, at 855 ("For most of thelast two millennia, Christians have maintained a position of hegemonicdomination in Western society...").

(118) See id. at 860-61.

(119) Id. at 850-51.

(120) See Beery, supra note 31, at 2-3.

(121) See Feldman, supra note 115, at 850-54; Velte. supra note 53,at 11-12.

(122) Linz Audain, Critical Legal Studies, Feminism, Law andEconomics, and the Veil of Intellectual Tolerance: A Tentative Case forCross-Jurisprudential Dialogue, 20 HOFSTRA L. REV. 1017, 1082-1083(1992).

(123) See, e.g., Bradley University 2015-2016 Men's BasketballSchedule, BRADLEY BRAVES,https://bradleybraves.com/schedule.aspx?schedule=471 (last visited Sept.30, 2018); Bradley University 2016-2017 Men's Basketball Schedule,BRADLEY BRAVES, https://bradleybraves.com/schedule.aspx?schedule=485(last visited Sept. 30, 2018).

(124) Audain, supra note 122, at 1082.

(125) See Gene Wang & Jacob Bogage, Ramble On: Loyola ChicagoBeats Kansas State to Reach Final Four, WASH. POST (Mar. 24, 2018),https://www.washingtonpost.com/news/sports/wp/2018/03/24/loyola-chicago-vs-kansas-state-ramblers-go-from-grass-roots-rebuild-to-elite-eight/?utm_term=.611f45c4d90d.

(126) Id.

(127) See Audain, supra note 122, at 1082.

(128) Id. at 1083.

(129) See, e.g., Hurley v. Irish-American Gay, Lesbian and BisexualGroup of Boston, 515 U.S. 557, 571-72 (1995) (holding that the statecourt's order that an LGBT Irish-American group must be allowed tomarch in a parade infringed upon the parade sponsor's right tofreedom of expression as the order requireed the sponsors to transformthe meaning of their gathering).

(130) See Audain, supra note 122, at 1085-86.

(131) lain T. Benson, Getting Religion and Belief Wrong byDefinition: Why Atheism and Agnosticism Need to Be Understood as Beliefsand Why Religious Freedom Is Not 'Impossible': A Response toSullivan and Hurd 11 (Apr. 22, 2017) (unpublished manuscript),https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2955558.

(132) See Masterpiece Cakeshop, Ltd. v. Colo. Civil RightsComm'n, 138 S. Ct. 1719, 1747-48 (2018) (Thomas, J., concurring)(arguing that freedom of expression must prevent Obergefell from beingused to quell dissent).

(133) See Benson, supra note 131, at 14.

(134) See Masterpiece Cakeshop, 138 S. Ct. at 1734 (Gorsuch, J.,concurring).

(135) Cf. Priests for Life v. U.S. Dep't. of Health &Human Servs., 808 F.3d 1, 1-2 (D.C. Cir. 2015) (Pillard, J., concurring)(acknowledging that RFRA and the Court's holding in Hobby Lobbyprovides protections for religious adherents).

(136) Feldman, supra note 115, at 863.

(137) Id.

(138) THOMAS PAIN, THE AGE OF REASON: PART I 3-4 (Albury Castelled.1957) (emphasis added).

(139) Id. at 4.

(140) Brooke Allen, Our Godless Constitution, THE NATION (Feb. 3.2005), https://www.thenation.com/article/our-godless-constitution/.

(141) See id.

(142) THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 159 (WilliamPeden ed. 1982) (1785).

(143) See generally SAM HARRIS, THE END OF FAITH: RELIGION, TERROR,AND THE FUTURE OF REASON 15 (2004) ("I hope to show [in this book]that the very ideal of religious tolerance--born of the notion thatevery human being should be free to believe whatever he wants aboutGod--is one of the principal forces driving us toward the abyss.").

(144) See generally RICHARD DAWKINS, THE GOD DELUSION 31 (2006)("Creative intelligences, being evolved, necessarily arrive late inthe universe, and therefore cannot be responsible for designing it. God,in the sense defined, is a delusion.... ").

(145) See HITCHENS, supra note 13, at 11, 13 ("[P]eople offaith are in their different ways planning your and my destruction, andthe destruction of all the hard-won human attainments that I havetouched upon. Religion poisons everything.").

(146) Reza Asian, Why Richard Dawkins, Sam Harris and the 'NewAtheists' Aren't Really Atheists, ALTERNET (NOV. 21, 2014),https://www.alternet.org/belief/why-richard-dawkins-sam-harris-and-new-atheists-arent-really-atheists.

(147) Thomas v. Review Bd. of Ind. Emp't Sec. Div., 450 U.S.707, 714 (1981).

(148) Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n,138 S. Ct. 1719, 1734 (2018) (Gorsuch, J., concurring).

(149) See Thomas, 450 U.S. at 715-16 (quoting Thomas v. Review Bd.of Ind. Emp't Sec. Div., 391 N.E.2d 1127, 1131 (Ind. 1979)).

(150) See Holt v. Hobbs, 135 S. Ct. 853, 862-63 (2015).

(151) Thomas, 450 U.S at 715.

(152) Id.

(153) See Asian, supra note 146.

(154) See, e.g., Lund v. Rowan Cty., N.C., 863 F.3d 268, 291 (4thCir. 2017) ("Our Constitution seeks to preserve religious libertywithout courting religious animosity. In this quest, our two religionclauses have been a great success, helping to spare Americans the depthof religious strife that so many societies have had to suffer andendure. And yet free religious exercise can only remain free if notinfluenced and directed by the hand of the state.").

(155) Steven D. Smith, Discourse in the Dusk: The Twilight ofReligious Freedom?, 122 HARV. L. REV. 1869, 1876 (2009) (reviewing KENTGREENAWALT, RELIGION AND THE CONSTITUTION--VOLUME 2: ESTABLISHMENT ANDFAIRNESS (2008)).

(156) Tara Isabella Burton, How Birth Control Became Part of theEvangelical Agenda, VOX (Oct. 7, 2017),https://www.vox.eom/identities/2017/10/7/16259952/birth-control-evangelical-agenda.

(157) See id.

(158) See generally, Wanned Parenthood v. Casey, 505 U.S. 833,877-78 (1992) (noting the disagreement among the justices in renderingthis decision despite some agreement that the State has interest infetal life and therefore may regulate abortion procedures).

(159) See Leviticus 20:13.