“Despite our well-practiced scripts on the subject, Americans hardly know what they’re talking about when we’re fighting over religion,” writes Kathleen Sands in America’s Religious Wars: The Embattled Heart of our Public Life (17). There is so much to admire about this argument and this book. Sands ably walks us through various American battles over “religious freedom” to show, refreshingly and persuasively, that public debates that seem plainly about religion and religious freedom are at a deeper level about competing social ethics—about freedom, equality, community, limited government, dignity, and distributive justice—that can become lost when they are squeezed into an increasingly slippery category of religion. These deeper disagreements are worth voicing, since they are the “living heart” and “fuel” of democracy. Sands aims in her ambitious book to help clarify—demystify even—the workings of religion and its indeterminacy in the playing out of these deeper disagreements. “To understand American religion-talk,” in other words, “we must look at, rather than through, the judgments we normally pack into the word “religion” (13).

“In order to enforce laws guaranteeing religious freedom,” Winnifred Fallers Sullivan memorably writes, “you must first have religion” (1). Sands joins Sullivan, Elizabeth Shakman Hurd, Saba Mahmood, Finbarr Curtis, Tisa Wenger, and others making better sense of the confusing din over religious freedom in courts of law and public opinion by denaturalizing the category of religion, exposing its indeterminacies, and unmasking the uses of religious freedom discourse for those with power over those with less power. As Sands puts it, “the truth is that the category of religion, not having been created for intellectual reasons, does not make intellectual sense” (41).

Sands writes with a clarity of vision that few scholars making sense of these confusing issues can claim. Goodness knows I struggle to find that clarity either in my teaching on religion and American public life or my writing on Native American sacred claims in the law. Especially helpful is her recurring motif that we tend to speak of religion in two contrasting ways—in terms of walls and foundation. When religion as wall is in play, religion is conceived as the privatized, interiorized religion or spirituality that everyone can (or even does) have but that can be walled off from public life. But religion is also often spoken of as a foundation (following Rousseau and Durkheim) that holds our polity or society together through its shared mythos and ethos.

I will eagerly draw in my teaching on the initial framing chapters for the lucid way Sands tells the stories of the genealogies of religion and distills the issues as they become baked into the Constitution. The body chapters range effectively and provocatively for a broad audience. They engage conflicts among religions, first with Catholics and Mormons and then with Native Americans, and between the religious and secular, with an eye toward science and sexuality.

I’ll focus here on the material I know best, her chapter “Religion and the Fight for Land” on Native American traditions. Kudos to Sands for placing Native American religious freedom at the center of a broader inquiry into America’s religious wars. It belongs at the center: three key decisions by which the Rehnquist Court redrew the lines of judicial interpretation of the First Amendment’s Free Exercise Clause generally involved Native American religious claims: Employment Div. v. Smith (1990) but also Bowen v. Roy (1986) and Lyng v. Northwest Indian Cemetery Protective Ass’n (1988), which reversed a Ninth Circuit decision holding otherwise to rule that Native Americans had no First Amendment right to sacred land protection.

Native American cases also belong at the center because conflicts over land in American settler colonialism are ultimately conflicts over religion in its foundational sense. To illustrate, Sands turns our attention to the Black Hills, considered by Black Elk and other Lakota people to be profoundly holy, “the heart of everything that is,” but also the place American pilgrims flock to in order to gaze at Mount Rushmore. Through the contrasting religious biographies of Roosevelt and Black Elk in relationship to the taking of the Black Hills, the Ghost Dance, and the criminalization of Native ceremonial traditions under the Interior Department’s administrative law, Sands ably shows how “struggles over land are not just about property and power” but also about religion (136). This is predictable in the case of Black Elk: Native American traditions, insofar as they turn on relationships and collective obligations towards land, have hardly been legible in terms of the category of religion. But the point is also illustrated by Roosevelt’s story. Roosevelt was a strict separationist on “religion” conceived in terms of walls, but the Rough Rider president was insistent that the lands that comprised the nation’s newly gained territory were the ground and foundation of his de facto religion, Americanism. If you’ve ever wondered what business Roosevelt has joining Lincoln, Jefferson, and Washington on Mt. Rushmore, Sands makes it all too clear, and she puts before us the remarkable fact that the mountain the sculptor Borglum set his dynamite charges into was the very place where Black Elk’s famous vision took him as a child. When it comes to settler colonialism, ironies abound, often taking religious shape.

This chapter feels especially salient as I write these words days after Trump declared, with Rushmore as his July 4 backdrop, that “I am here as your president to proclaim before the country and before the world, this monument will never be desecrated.” Equipped with Sands’s insight, we know this cannot be chalked up to Trump’s own vagaries. Its utterly unexceptional, keyed into an American narrative that is, as Sands would put it, foundational.

Still, it seems to me there may be some missed opportunities in this chapter. I kept seeing the possibilities if Sands had been in further conversation with Tisa Wenger’s two books, both of which are spot on in terms of the concerns of this chapter. Wenger’s We Have a Religion (2009) does a deep dive into the complexities of the Civilization Regulations in the Pueblo Dance Controversies of the 1920s and her more recent book, Religious Freedom: The Contested History of an American Ideal (2017), dedicates a rich chapter to the discussion of the assemblage of civilization, race, and religion in the Civilization Regulations.

It is important that Sands does bring the Civilization Regulations to our attention. Between 1883 and 1934, the US Interior Department established Courts of Indian Offenses and drew up administrative law criminalizing specific practices: the Sun Dance, potlatches, and practices of medicine men. The regulations also gave federal agents broad authority to curtail most any other practice they deemed inimical to “civilization.” Theodore Roosevelt was president when, in 1904, his interior secretary issued the third and most elaborate of the regulations specifying punishments for each offense. Sands does make clear that Interior officials did not see themselves as outlawing Native religions in the Civilization Regulations; they didn’t recognize these ways as religion at all.

But if Sands were in conversation with Wenger, we would have learned that the indeterminacies of religion were amply shown in the capillary actions of the regulations’ enforcement. Some Native leaders played down the religious nature of dances and practices, insisting, for example, that certain dances were merely social. But Native leaders also consciously and strategically drew on the discourse of religion to protect their ways.

Attending more fully to this part of the story, we may have learned that the Ghost Dancers about whom Sands writes, including Black Elk for a time, were not just on the receiving end of the weaponization of religion as a category. They would pop off the page for the way they, too, strategically engaged the language of religious freedom to protect their own traditions. We might have learned that Sands’s main source about the Ghost Dance, James Mooney, was a government-paid anthropologist who undertook his study of the Ghost Dance in part to render it legible as religion. A dissertation and forthcoming book by Tiffany Hale, Fugitive Religion: The Ghost Dance and the Racial State, updates our appreciation of practitioners of the Ghost Dance even further.

To be sure, Sands’s book is ambitious and as Trump’s speech at Mt. Rushmore shows, it’s important she included the Native material in the first place. The missed opportunity is that this chapter could do even more to flesh out the book’s central and unifying concern, the workings of religious indeterminacy and its uses for those with power. The very slipperiness that enabled Protestant Establishment leaders to use religious freedom to assert power over Catholics, Mormons, and Native Americans also enabled Catholics, Mormons, and Native peoples to draw on it to lay claim to their own excluded practices as religion.

Ghost Dancers were hardly the only Native people to engage the discourse of religious freedom. Wenger points to practitioners of nation-specific traditions like the Red Lake Ojibwe Midewiwin ceremony and Pueblo seasonal dance ceremonies, as well as to members of new religious movements like the Shaker Church and Peyotism. Wenger and historian Thomas Maroukis detail just how enterprising were efforts by Native practitioners of the Peyote Road to engage religious freedom talk to win allies and to keep federal officials off their backs, all at a time when mounting sentiment toward prohibition was ramping up enforcement of the Civilization Regulations. Ultimately, Peyotists took to incorporating themselves as the Native American Church, first in Oklahoma in 1918. The details of their relative success along the way go unnoticed in Sands’s analysis, though importantly she shows how fragile were Peyotists’ gains, since they were negated by the Supreme Court in its 1990 Smith decision.

For Wenger, the appeal by Peyotists and others to religious freedom in their effort to be legible and legitimate meant that Native traditions necessarily changed in the doing (and implicitly that those changes were matters more of coercion than consent). If I’m reading Sands correctly, something similar is in play in her account; Native appeals to religion are destined ultimately to fail because the terms are set by dominant culture and because the real issues never were simply about religion. “Religion in the constitutional sense,” she writes, “does not adequately convey what Native people have lost, nor does “religious freedom” name what it would take to restore meaningful sovereignty to First Nations on tribal lands” (176–77).

I agree with Sands here wholeheartedly. But important, too, is the agency of Native peoples to resourcefully engage religion from below, and in ways that are not destined to result in tragic failures, or to remain locked in those failures. At the end of her chapter, Sands alludes to Native people persuading Congress to pass laws involving repatriation of sacred objects and ancestral remains and restoring the legality of sacramental peyote use by Native people (199). I think it’s worth amplifying this part of the story because it points to the rhetorical power of religion and strategic Native efforts to leverage that power to persuade Congress to pass Native specific statutory protections. In the case of Peyote, Native advocates secured protections in 1994 through an amendment to the American Indian Religious Freedom Act. Originally passed in 1978, AIRFA is often dismissed as lacking legal teeth, especially to protect sacred lands, and this was one of the conclusions of the Supreme Court in Lyng. But Native advocates knew well that they couldn’t succeed in getting AIRFA through Congress if it had the legal teeth they ultimately wanted—specifically a “cause of action” provision that would equip them to bring claims for sacred lands to court—because it opposed by powerful members of Congress from western states, including South Dakota. They nonetheless stuck with AIRFA as it was—an acknowledgment of federal policies abridging Native religious freedom intentionally or unintentionally, and calling on federal agencies to “preserve and protect” Native religions through accommodations in their agency decision-making. So AIRFA was less a destined-to-fail appeal to religious freedom than it was a law extending the formal government-to-government relationship between the U.S. and the tribes to the realm of religion and culture.

It is significant that Native advocates looked to amend AIRFA, not the Religious Freedom Restoration Act (1993), to restore Native American rights to sacramental peyote after the Supreme Court’s criminalization of the religion of tens of thousands of Peyotists, even though RFRA had been passed to address the vagaries of the Smith decision in the first place.

My point is that while Native peoples have consistently gotten the short stick when it comes to what counts as religion, it’s important to acknowledge that Native advocates got busy, drew on the rhetorical power of religious freedom discourse to win allies in Congress, but ultimately turned to the legal structures of federal Indian law, based on treaties and tribal sovereignty, rather than on religious freedom law. Put another way, because of these activists’ strategic wisdom, current legal recognition of the religiousness of the Peyote religion conforms less to the logic of individual religion than to the logic of Native collective sovereignty.

This is one example among others of how the story of Native American religious freedom may not simply be the story of its failure in Lyng and Smith and as exhibit A in the impossibility of religious freedom generally, but very much the story of how Native people have drawn on the rhetorical power of religious freedom resourcefully—creatively even—to protect what’s sacred to them.

Like Black Elk, Native leaders today engage the discourse of religion to their own ends. How much they can do with it in the end is quite limited; religious freedom claims have not yet been successful in winning back lands, much less protecting sacred places on public lands.

But it’s crucial to understanding how such discourses function to take seriously how they are resisted and appropriated from below. I’d note here that members of the coalition that worked toward AIRFA and the repatriation law, like Suzan Shown Harjo, helped persuaded the Board of Geographic Names in 2016 to rename Harney Peak, formally associated with a cavalry officer linked to the violent theft of the Black Hills, as Black Elk Peak.

This point is being played out in the courts today, but not in the language of religious freedom, because Native activists have never put all their money on religious freedom arguments, especially on sacred lands after Lyng. At the time of this writing, we still await a federal judge’s decision on the status of Bears Ears National Monument in Utah, specifically whether President Trump had the executive authority to gut it by 85 percent under the American Antiquities Act of 1906, the legislation Teddy Roosevelt championed that authorizes presidents to set aside lands as national monuments.

Sands rightly points out that Roosevelt’s conservation initiatives created parks and monuments that effectively erased Indigenous presence and “enabled the symbolic ingestion of Native cultures” (168). But Bears Ears is aptly called the first Native American national monument because when President Obama designated 1.35 million acres of traditional lands and places sacred to the Navajo, Ute, Ute Mountain Ute, Hopi and Zuni peoples, he largely adopted the plan put forward by an intertribal coalition to protect particular sacred places but also broader landscapes of ancestral presence and traditional knowledge, knowledge that inheres in the land and that is itself identified as the national treasure of monumental value. It follows that the monument designation involved collaborative management with that intertribal coalition, until President Trump issued an executive order a year later eviscerating the monument by 85 percent of land, later putting opened-up lands to auction for uranium, oil and gas extraction, and watering down the collaborative management commitment. The Trump administration’s strongest argument is that the Antiquities Act really only meant, as it did to Roosevelt, to protect specific landforms, archaeological sites and their immediate surroundings. Whatever the outcome—and the tribes have existing case law largely on their side, Bears Ears is worth noting in a discussion of Sands’s fine book because it shows Native ingenuity to protect what is sacred despite failures of religious freedom in the courts, and despite the capacity of law to engage what might first seem a contradiction or a paradox. In my work I’ve come to learn that religious freedom from a jurist’s perspective is not simply a matter of what it has meant or means at this moment, but what it can mean.

“The problem of beginnings is one of those problems that, if allowed to, will confront one with equal intensity on a practical and on a theoretical level” (3). The opening sentence to Edward W. Said’s classic text, Beginnings: Intention and Method, underscores the importance of thinking beginnings. That is, undertaking a critical investigation into the conditions that form and inform a moment of conception, inauguration, a starting point where one initiates a work, a thought, or a practice. Said opens the terrain of beginning to a critical probing of the practices of criticism in order to exploit the rupture that a work of criticism, or truly any work, establishes, authorizes, and legislates by way of a set of practices and ideas in creative and critical thought. In so doing, Said draws our attention to how “beginning is not only a kind of action; it is also a frame of mind, a kind of work, an attitude, a consciousness” (xv).

Edward Said’s theoretical elaboration of beginnings sheds critical light on Kathleen M. Sands’s important text America’s Religious Wars: The Embattled Heart of Our Public Life. While Said may seem to be a surprising interlocutor for a text that engages a perennial issue in American public life—the role and function of religion—his thinking facilitates a deeper grasp of the fundamental issues at stake in the text. If we are to understand conflicts over religion we must critically probe foundational conflicts that are masked by traditional formulations. Indeed, conflicts over religion are not merely family quarrels, but fundamental antagonisms which frame intellectual and institutional expressions of the beginnings of the American experiment with democracy and forms the beginnings for comprehending the complexities that continue to vex American politics and public culture. The foundational nature of this issue gives expression to a range of competing and conflicting issues from how to manage religion in an ostensibly secular society to how we understand human difference to how to adjudicate competing claims in a pluralistic polity. “Debates about religion,” as Sands correctly reminds us, “involve concrete, personal interests” (5). By delineating the practices and ideas of religion that ground these debates, Sands goes on to write, “often, when we argue about religion, we are arguing obliquely about these other things” (5). America’s Religious Wars offers readers an opportunity to think again about the beginnings of the enduring battles of religion that litter American public life. As Sands rightly points out throughout the text, religious conflicts are never simply about religion. Rather, they are, by necessity, about more than what can be contained within the limits of religion alone. The conflicts are but symptoms of deeper issues which are expressed through religion. It is this dimension of Sands’s argument that I want to highlight by unfolding a line of thinking about beginnings and pursue a fugitive discourse that remains submerged within the discourse that frames America’s Religious Wars.

What are the critical possibilities of thinking America’s Religious Wars from the beginnings? What ethical, political, social, and cultural issues and ideas emerge in such a thinking? If, as Sands writes, “freedom, equality, community, and limited government are familiar issues in American religious conflicts . . . [and] some stakes of religious conflict are more tangible than these four, and some less tangible” (7), then what are the implications of critically probing the beginnings? By stating that religious arguments are also arguments “obliquely about these other issues,” Sands draws our attention to how religious conflicts are always already conflicts beyond religion. And if this is the case, then an/other conception of the beginnings of these conflicts in the American experiment with democracy may be warranted in order to gain a critical grasp of the fundamental and foundational nature of these conflicts. In other words, the language of “contradiction,” “circularity,” and “paradox” may keep us trapped within a logic that reads Christianity as religion, as modern, as secular, and as democratic. The discursive power of Christianity and its political and secular analogues then serve to form and frame “America’s religious wars” which, in reality, may be an extended war over “a host of Euro-Christian assumptions about morality, citizenship, and civilization [which are] buried in the foundations of the social order” (11). What if the beginning of America’s Religious Wars inscribed the forces of conflict on this terrain and the manifestations of “religious” conflicts were read in and through the beginnings of an excessive power of “Euro-Christianity” and its sedimented logics in the registers of American democracy?

To begin with an excessive “Euro-Christianity” underscores how and in what ways varying forms of European Catholicism and Protestantism have foundationally and fundamentally informed the American experiment with democracy. It is not incidental that “when the American republic was founded, however, most human beings under its jurisdiction had neither the protection of wall religion nor the power to alter the country’s foundations” (85). The polity was constituted as such with a distinctive idea of what it means to be human and a citizen developed in very distinctive and particular ways. Indeed, in his challenging text Shades of Freedom: Racial Politics and Presumptions of the American Legal Process, late jurist A. Leon Higginbotham Jr. gives critical expression to the scale and scope of the cultural, legal, and political assumptions which prescribe and shape the very discourse of citizenship and the contours of freedom. “Euro-Christianity” thus proffers a cultural and political vocabulary that makes legible and legitimate such conceptualizations that define and delimit the range and scope of “We the people” and that shape authorized discourses of religion and rights. The “gap” which Sands writes about and teleologically sutures to a corrective civil war theoretically short circuits the foundational logic that forms and animates historiographical and juridical discourses on religion and its public role. Beginning with the constitution of the Man of the demos as reflective of a distinct conception of the human that properly pertains to the category of religion yields not so much a conflict over religion but rather what type of human and what type of citizen can properly occupy the space of the public and the political in a democratic society. The foundation and the wall thus are part of the political house of democracy whose architect and resident, the human, enters the public sphere with distinctive traits, abilities, and responsibilities co-extensive with the excessive logic of “Euro-Christianity.” “Euro-Christianity” is not, and never has been, absolutely about religion. Rather as a concept, framework, and, most importantly, worldview, it provides the language and categories for conceptualizing the world and being human in the world. Not simply a question of “over-civilization,” “under-civilization,” or civilization, “Euro-Christianity” is excessive in the ways in which it organizes and authorizes forms of knowledge, regimes of power, and modes of existence in the world (276). It frames transcendence—sacred and secular—while giving meaning and expression to temporality, spatiality, and existence. It is overdetermined by its imbrication into the ideas, logics, and practices of democracy. What are the implications—theoretically and practically—of alternative beginnings which unfold “Euro-Christianity” as root, cause, and medium in and through which the density and diversity of discourses that have been and continue to be consolidated within the discourse of conflicts of “religion”? What extraordinary intellectual and political opportunities are available for conceptualizing religion in American public life across space and time by thinking through such beginnings?

To think beginnings with America’s Religious Wars is to raise to a level of critical thought the logic that sutures such binaries as Christianity and indigeneity, creation and evolution, religion and science, and sacred and secular. The theoretical, juridical, political, and cultural expressions are rooted in an exemplary beginning of “Euro-Christianity” which drives the epistemological and ontological dimensions of the conflicts about religion in American public life. More importantly, it also provides the critical axes and pivots for normative judgments on the place, privilege, and position of religion in American public life and culture. Rethinking the perennial conflicts of religion in American life and culture from new beginnings reveals the always already conflicts over the meaning, substance, value, and knowledge of the human—as the work of Charles H. Long and Sylvia Wynter have brilliantly elaborated—that remains latent in traditional discourses about these debates. “American conflicts about religion,” Sands writes, “though often phrased in terms of walls, always come down to questions about how we should live together” (284). The open question may form the beginnings of a new critical history and analysis of religion in American public life. It is a process of demythologizing religion, America, and democracy and thinking through the creation and evolution of “we” across space and time. In this way, the space and knowledge of law, politics, and society are vehicles for comprehending and deconstructing discourses of conflicts of religion as foundational conflicts over competing claims of sovereignty in a democratic society.

Said reminds us that “a beginning intends meaning, but the continuities and methods developing from it are generally orders of dispersion, of adjacency, and of complementarity . . . the beginning encourages (especially the modern beginning), nonlinear development, a logic giving rise of [a] sort of multileveled coherence of dispersion” (373). The opportunity represented by beginnings is not one which yields a logic of the same. Rather, the beginning represents a rupture theoretically, methodologically, and politically with the dominant regimes of knowledge and power. An/other order of knowledge pertains to beginnings; one that is not preoccupied with origins, but rather one that is concerned with thinking sedimented discourses along with the logics and commonsense concepts and frameworks which order and govern the everyday. The discourse submerged within the narrative logic of the history that structures America’s Religious Wars presents an opportunity to think again the beginnings of religion in American public life and the antagonisms which constitute religion, democracy, and America.

Conflicts over religion animate the dominant narratives and conceptual formulas of American politics and public life. Yet, with Sands, we readily recognize that the disputes over religion are always already displaced disputes involving foundational and fundamental issues that in/form our collective life. What would it mean to subject this dominant narrative to a critical thinking of beginnings? For instance, what theoretical possibilities are available when Sands discusses the “explicitly racist logic” in Reynolds v. United States and this scene is reterritorialized to the space of beginnings to recognize that this logic is constitutive of the afterlives of the knowledges, institutions, and practices of slavery and settler colonialism which organize the epistemes of religion, civilization, and the human (279)? Two decades ago at the third Parliament of World Religions in Cape Town, South Africa, a group of Native American leaders offered “the seldom-heard Indian side of the story about America’s much-vaunted religious freedom,” as it is described by Phil Couisineau (xiv). In a session titled “America’s Shadow Struggle,” these leaders shared alternative experiences and understandings of religious freedom beyond the legitimate discourse of religious freedom. By reframing the discourse of religious freedom to focus on their extensive history and experience, these leaders instantiated a thinking of beginnings that resists the protocols of the discourse of religious freedom. In so doing, they unveil the constitutive failure of the concept of religious freedom to adequately represent multiple human experiences in a pluralistic polity.

These Native leaders remind us that our commonplace understanding of religious freedom which underwrites religious conflict in American public life is insufficient in light of America’s complex and contested history. Indeed, the ways in which we conceive of religious freedom are organically linked to how we understand what it means to be a citizen, what it means to live in a democracy and, ultimately, what it means to be human. The example of these Native leaders more than two decades ago reminds us that indigenous as well as enslaved and other marginalized people, cultures, knowledges and ideas often frustrate and disrupt any nice and neat understandings of religious freedom let alone the role and function of religion in society. Whether we begin with the “golden age” of the founding of religious freedom in adjudicating competing visions of the public role of religion in the time of the early republic or engage contemporary clashes over the proper place and position of religion in American public life, the problem of beginnings is vital for understanding how we mobilize a range of social, cultural, and political ideas for our society and world.

America’s Religious Wars astutely reminds us that religion in America is more than a series of binary opposites—religious and secular, theism and atheism, tradition and innovation. It also does not fit a simplistic either/or framework. Yet, to truly understand the work of religion in our theoretical and political imaginations and institutions requires a critical thinking of the beginnings of how we formulate and conceptualize these “conflicts” in surfacing the deeper understandings which result from a plurality of historical and conceptual models. By taking beginnings as an object of thought—such as how the cultures of segregation are constituted, policed, and maintained in and through discourses of religious conflict—we can critically confront what is captured and contained by the conventional categories that have authorized, governed, and policed institutionally and juridically limited notions of religion. In this manner, Kathleen Sands presciently concludes, “that America is morally unmoored is no news to many victims of our history. They know that troubles like those recounted here do indeed go to the ‘heart of the existing order’” (284).

Perhaps, the end is the beginning.

At the beginning of her Yale University Press book, Wars of Religion: The Embattled Heart of American Public Life, Professor Kathleen Sands describes precisely the aim of her work: “The goal of this book is not to resolve American disagreements about religion but to help us travel better in our shared political system.” The First Amendment’s Religion Clauses were a critical reaction to the wars of religion. Because of that history, I travel differently than Professor Sands in our legal and not-very-shared political system.

I am a scholar of law and religion. I have a Ph.D. in religious studies and have been a theology professor. Then I went to law school and now combine the two fields. The claims of one subject always make me aware of the needs of the other.

Three parts of law and religion history are central to my analysis. First is Sherbert v. Verner, a 1963 Supreme Court case, which ruled that South Carolina could not refuse unemployment compensation benefits to a Seventh-Day Adventist because she would not work on Saturdays. Sherbert required the government to have a compelling state interest in order to burden religion.

Second is Employment Division v. Smith, a 1990 Supreme Court case that ruled Native Americans were not entitled to a religious exemption from the drug laws. Instead, they could be denied unemployment benefits because of their use of peyote in a religious ritual. Smith ruled everyone has to follow neutral laws of general applicability.

Third is the Religious Freedom Restoration Act, RFRA, a federal and often-state statute. The RFRAs rejected Smith and restored the compelling state interest test of Sherbert. The RFRAs are statutes, so Smith still states what the First Amendment means … today. But opponents of Smith regularly call for Smith’s overruling. They have come close to overruling it, but today it remains the law of free exercise.

Professor Sands is with many religion writers who dislike Smith, and thus prefer Sherbert and the RFRAs. In contrast, I like Smith and dislike Sherbert and RFRA. In my opinion, Smith protects us from too many religious exemptions while Sherbert and the RFRAs provide too many of them. Part of my complaint is with the compelling state interest standard, which allows religious exemptions many times, or at least allows them to popular religions, often giving them the right to violate the civil rights of their fellow citizens.

To me, the most important lesson of the wars of religion is that everyone must follow the same law, and that those laws must not be religion-based. Sands points out the confusion over the use of the word “secular” to describe positions like mine. I replace the word secular with legal-based. Laws should be legal-based, not religion-based. If laws are religion-based, it means they are different for different religions, or for religions and no religions. That means we do not have the equal, non-religious system that the Establishment Clause is supposed to guarantee. The reason for this is that religions are not always good, as Professor Sands accepts, and are never universal, which is something many pro-religion advocates do not want to hear. Many other debates, about property, sovereignty, and sex, may have been going on in the disputes Professor Sands describes, but religious differences were always part of them. Religions keep most people from finding common ground because they always disagree about what their religions hold.

Consider the facts of the cases and how I look at them. Sherbert lost her case because the Supreme Court had already ruled in 1961 that Sunday closing laws did not violate the First Amendment. That Sunday ruling was wrong. It should have been obvious that picking one religion’s Sabbath over another’s as the day of rest would lead to religious and economic problems. With the choice of Sunday as an official rest day, Christians were clearly favored over Jews, Seventh-Day Adventists, and any others who did not favor Sunday. If the Court had ruled correctly about the Sunday closings, it would not have needed a compelling state interest rule for Sherbert. Instead, if the law had respected everyone’s different Sabbath or non-Sabbath, everyone, even Sherbert, could have gotten unemployment benefits—or not even needed them–without any special protection for religion.

Smith has a similar outcome. Native Americans usually lose their religion cases in the Supreme Court, while Christians win them. I am not as troubled by Smith, because in general I oppose much drug or alcohol use, even in religious settings. For health reasons, not religious ones. The interesting background to Smith is that while the 18th Amendment, which barred liquor, was in effect, the connected laws protected the use of alcohol in Catholic Masses and in other religious settings. This is really the same point as I made about Sherbert. If the laws are supposed to be for everyone, then everyone must be treated the same way by them. That is what happened to peyote. Post-Smith, many governments by statute exempted peyote use from their criminal laws. Smith allows the governments to make such exemptions. In my view, the exemptions should be equally for everyone or for no one. Smith sets up a standard where the laws apply equally to all, as long as the government listens to everyone and sets up an equal standard that applies to all.

The government over-listened by legislating RFRA. RFRAs have undermined many civil rights, allowing religion to win while the civil rights lose. Many people argue that religion was the source of the civil rights movement. But it was also slaves who wanted their freedom who opposed the long religious, including Christian, support of slavery. The wars of religion did not support human freedom, and that is why the First Amendment was set up to oppose religious government. Scholars have recently emphasized the church’s constant role in supporting slavery and segregation.

Everyone should be required to obey the health laws, which serve everyone’s health. Nonetheless, RFRA, by a 5-4 vote in the Supreme Court, allowed religious, and now moral, opponents of contraception to prohibit their employees from getting contraceptive insurance, even though the Affordable Care Act was supposed to provide insurance to everyone.

The more religion grows, the fewer health and civil rights people have. President Trump expanded the contraceptive religious exemptions so that many more employers do not have to provide contraceptive insurance and do not have to give notice of their decision to anyone.

FYI, all the employers lost their contraceptive Free Exercise cases in the courts because Smith says everyone has to obey the law. RFRA undermined the same rule of law for everyone.

Smith is weakening, because religious people want to follow their own laws instead of the laws of the states and the United States. Masterpiece Cakeshop allowed a baker to discriminate against LGBTs on religious grounds. The baker refused the couple a cake because he opposed same-sex marriage. The Court ridiculously concluded that the Colorado government had discriminated against religion by considering ways that religions have harmed people in the past. That was viewed as discrimination instead of honesty.

That is a major problem with our religion-based laws and exemptions. They like to pretend that religion is always good, and that any negative criticism of religion shows First Amendment hostility to religion. Ruling that criticism of religion is a Free Exercise violation shows us that too many people have forgotten about the wars of religion, which are the foundation of the First Amendment. In my view, the wars are the foundation, not all the good things about religion. Religions have done and continue to do many harms to people, and any interpretation of the First Amendment has to start with that recognition. That is why we have an Establishment Clause.

Smith survived as the law of the First Amendment in Fulton v. City of Philadelphia. But it was not a good result. The Court unanimously ruled that Philadelphia had to work with Catholic Social Services even though CSS would not give foster children to LGBTQ individuals, a decision that violates the antidiscrimination laws of Philadelphia. This case is about religion. When religion rules the law, individuals lose their civil rights, as women did in the contraception cases and LGBTQs did in Fulton.

Many people do not want to acknowledge the history of the wars of religion, where religions battled to be ruled by their own religions and no one else’s. Religion may have been only part of the controversy, as Professor Sands explains, but it was an important part of it. Religions still play the same role today. The First Amendment was supposed to deliver us from that kind of legal system. Instead, today’s religions are winning many battles across the country; their victories expanded in the Trump administration. Indeed, religion now predicts how many people vote. Religious freedom exemptions now allow:

• discrimination against LGBTQs;
• discrimination against women;
• freedom of religious organizations from any obedience to all our employment discrimination laws for their “ministers”; and
• refusal of health care.

In contrast to this system, I prefer to stick with Smith, insisting that everyone must obey the antidiscrimination, health and other laws so that everyone is equally served. I am not with the Court’s latest interpretation of Smith on this, as I think Fulton was wrong in its anti-LGBTQ result.

Professor Sands makes many important points about the rights of Native Americans. My own view is that the land cases, which they lose under the Religion Clauses, should be treated as sovereignty cases and not as religious freedom cases. Sovereignty cases should recognize the long and difficult history of Native Americans in their own country. They were beaten out of their rights. Calling them religious freedom cases does not really reflect what is happening in the cases or how Native Americans should be justly treated.

I am grateful to Professor Sands for all the interesting points raised in her book. As always, I want to emphasize my view that religion should not provide exemptions from the laws that protect everyone.  Instead, I think that everyone should obey neutral laws of general applicability.

Reynolds v. United States is a famous Supreme Court case, an 1878 decision that rejected a religious defense against prosecution for the federal crime of polygamy. It was the court’s first interpretation of the First Amendment’s Free Exercise Clause. The free exercise claim lost unanimously. Reading Kathleen Sands’s account of the case, I realized I had never actually read Chief Justice Morrison Waite’s opinion. So I looked it up, not knowing quite what to expect.

Of course, some of the opinion’s language is a bit cringe-inducing; the defendant, George Reynolds, was a member of the Church of Jesus Christ of Latter-day Saints, and Mormons had few friends in high places in 1878. It’s no accident that the justices had gone nearly a century without feeling obliged to analyze the Free Exercise Clause; mainstream religion, secure in its political and social dominance, had no need to turn to the courts. It required an assertive religious minority (think of the Jehovah’s Witnesses and their landmark litigation in the mid-twentieth century) to take up the free exercise sword.

Reynolds’s argument was that his prosecution violated his right to free exercise because in taking a second wife, he was carrying out a duty that his church imposed on male Mormons; the penalty for violating the plural marriage command, he informed the court, was eternal damnation. The court questioned neither Reynolds’s description of his religious obligation nor his view of the peril awaiting him if he obeyed secular law. Rather, the justices treated those factors as irrelevant. While the First Amendment entitled Reynolds to his beliefs, the chief justice wrote, the question in the case wasn’t belief but practice: “whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land” (162). Waite continued: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances” (167).

Reading these words, I had two reactions. One was to admire their straightforward simplicity: wouldn’t it be great if Reynolds could be summoned from history to provide the answer to the baker who claims that his religion forbids him to bake a cake for a customer’s same-sex wedding, or to the employer who insists that providing the required contraception coverage in his employee health plan would make him complicit in his employees’ sin of engaging in non-procreative sex.

But my second reaction was: Wait a minute, Reynolds is still our law. Justice Antonin Scalia relied on it in his majority opinion in Employment Division v. Smith (as the case is generally known, not “Oregon v. Smith” as this book calls it) in 1990, even to the extent of quoting Chief Justice Waite’s warning against permitting “every citizen to become a law unto himself” (879). And yet the Supreme Court’s clear injunction against religious opt-outs from laws of general applicability has brought us neither legal clarity nor social peace. What happened?

I take this book’s mission in large part to be to offer an answer to that question: to show how the religious conflicts at “the embattled heart of our public life,” to quote the subtitle, transcend law and elude law’s solution. The question is deceptively simple, and the answer Kathleen Sands gives us is rich and complex, if not fully satisfying.

The tension inherent in the two religion clauses is obvious to anyone who writes or even thinks about religion in a constitutional register. My own work in this area has been almost exclusively law-focused. In The Burger Court and the Rise of the Judicial Right (2016) Michael J. Graetz and I chronicled the Supreme Court’s increasing emphasis on accommodation and its shrinking concern with neutrality—Free Exercise over Establishment—and described the tension this way: “Establishment Clause cases ask whether the government has gone too far to accommodate religion. Free Exercise Clause cases ask the opposite: whether the government has gone far enough” (227).

It’s a primary strength of America’s Religious Wars to get beyond law-talk and show us how the tension has played out throughout American history, intersecting only occasionally with courts and law. This is an important and enlightening perspective. It enables the author to draw this pithy lesson from George Washington’s confrontation with Quaker pacifism: “What the religious believer most needs from government is exactly what the government can least afford to provide” (62).

And her description of “religion” as an empty vessel to be filled by politicians proved prescient nearly as soon as the book was published. How much of a leap is it, really, from President Eisenhower’s assertion in 1952 that “our form of government has no sense unless it is founded in a deeply felt religious faith—and I don’t care what it is” to Donald Trump’s appropriation of the steps of St. John’s Episcopal Church on which to raise a Bible in the air as a fisherman might show off a prize catch? The “religion” flaunted in an empty gesture to fire up the political base—or, in Eisenhower’s case, to claim American superiority to “godless” Communism—is religion stripped of meaning, a politician’s cheap prize. As Sands notes: “Far from denoting a liberty that is equally available to all, ‘religious freedom’ has become a code for opposition to laws that protect the equality of women and LGBT people, just as it once served as a code for white Christian opposition to school desegregation” (282).

This insight might well have led to a richer concluding chapter. “Religious” and “freedom” are, of course, the first words in the title of the Religious Freedom Restoration Act (RFRA), which Congress passed in 1993 to repudiate Employment Division v. Smith. Sands’s discussion of RFRA reads almost as an afterthought. But I view this statute—what led to it and what has become of it—as central to the current story of religion in America—a logical if not inevitable capstone to her narrative.

In considering the provocatively titled Religious Freedom Restoration Act, we have to wonder why Congress, by a unanimous vote in the House of Representatives and a vote of 97 to 3 in the Senate, deemed religious freedom to be in need of restoration. What had been taken away, and what was being restored?

As I discussed, Employment Division v. Smith was a reiteration—in its key passage, a literal one—of Reynolds. Two members of the Native American Church (only one of whom was Native American) who worked as counselors at a private drug rehabilitation agency were fired for using the illegal hallucinogen peyote in a sacramental ceremony. Their dismissal for “misconduct” rendered them ineligible for Oregon unemployment benefits. They sued the state, claiming a religion-based exemption from their disqualification. The parallel with Reynolds was obvious and the result was the same. Yet the decision was denounced across the entire ideological spectrum, secular and religious, from the most liberal to the most conservative. What accounted for the uproar?

In the long run of free exercise cases from Reynolds to Employment Division, the Supreme Court had only twice granted a religious exemption from a generally applicable law. The first was Sherbert v. Verner in 1963, in which the court deemed a Seventh-Day Adventist eligible for unemployment benefits after she was fired for refusing to work on Saturday. In constitutional terms, the court applied a strict-scrutiny test, meaning that the government was required to show a “compelling” reason for a law or policy that placed a burden on religious exercise. South Carolina in this case justified its refusal to accommodate Sabbath observers by the need to deter fraudulent claims by workers who just wanted to avoid weekend duty. This was not a sufficiently compelling reason, the court held.

The second, nine years later, was Wisconsin v. Yoder, a problematic decision that gave Amish parents a religious excuse to take their children out of school before the state minimum age of sixteen. Chief Justice Warren Burger’s majority opinion was an odd paean to the Amish way of life, “productive and very law-abiding” (222). Only Justice William O. Douglas, in dissent, spoke up for the children who had no say in whether they wanted to be deprived of a high school education.

And that was it: two cases. Between Wisconsin v. Yoder in 1972 and Employment Division in 1990, the court decided numerous free exercise cases against the religious claimants: Muslims, Orthodox Jews, Evangelical Christians, and Native Americans. In her highly compressed account of this trajectory, Sands seems to suggest that the justices were singling out Native Americans for particular disfavor, but I don’t believe that was the case. The court was simply returning to the path that George Washington put the country on and that Reynolds constitutionalized: while everyone is entitled to their beliefs, everyone is obliged to follow the community’s laws. (A book published this summer by Oxford University Press, The Religion Clauses: The Case for Separating Church and State, by Erwin Chemerinsky and Howard Gillman, provides a particularly useful account of these cases.)

So the Religious Freedom Restoration Act can’t actually be seen as a restoration. It is better understood as a political document, a statement issued by a temporary and highly unstable coalition of interest groups drawn to the cause for individual and ultimately clashing reasons. Conservative Christians were—and still are—smarting from the 1983 decision in Bob Jones University v. United States, which upheld stripping a racially discriminatory religious school of its federal tax-exempt status. Observant Jews were offended by Goldman v. Weinberger, a 1986 decision, promptly overturned by Congress, holding that a Jewish Air Force officer was not entitled to wear a yarmulke while on duty. Political liberals saw Employment Division as a worrisome testament to Justice Scalia’s rising influence and, focusing on the particular facts of the case, wanted to protect minority faiths.

In enacting RFRA, Congress wrote the Sherbert v. Verner compelling-interest test into statutory law. The act provides: “Government shall not burden a person’s exercise of religion even if the burden results from a rule of general applicability [unless] it demonstrates that application of the burden . . . (1) furthers a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.”

Four years later the Supreme Court ruled on federalism grounds that Congress lacked the authority to make RFRA binding on the states (City of Boerne v. Flores). Many states passed their own “little RFRAs.” The Supreme Court has developed a robust RFRA jurisprudence as applied to the federal government. Crucially, the court insists that judges are not to question a religious claimant’s sincerity or the factual basis for a religious belief. For example, the owner of Hobby Lobby Stores, a closely held for-profit corporation with more than one thousand employees, claimed that his religious beliefs about conception meant that he could not subsidize the availability to his employees of birth-control methods he regarded as “abortifacients.” The methods to which he objected actually prevent conception and thus don’t cause abortion, but no matter; in ruling for the business owner in Burwell v. Hobby Lobby Stores (2014) the court credited the sincerity of his belief, and that’s all that counted.

As a result of that decision and the court’s follow-up decision this summer in Little Sisters of the Poor v. Pennsylvania, thousands of women have been deprived of a health benefit to which federal law entitles them. This is surely not the vision of RFRA that liberals entertained when they supported a law they thought would protect minority faiths from suppression by the majority. RFRA has metastasized to mirror the Christian community’s sense of grievance and marginalization in the face of evolving social norms that run counter to old doctrine.

America’s Religious Wars teaches that little about this development should surprise us. We fight religious wars not just because we have different beliefs; if it were that simple, arranging a truce would be easy. As Kathleen Sands demonstrates, the combatants have fought these wars from a desire to project their beliefs onto the larger fabric of society and to shape society in their image. Law can’t save us from ourselves; it is one more weapon in our hands.

I want first to concur with my legal scholar commentators’ concern about the effects of recent religious freedom victories. Like Professors Griffin and Greenhouse, I cannot accept the idea that religious claims should override the rights of other individuals or the common good. Actually, I agree with Professor Griffin more than she realizes; like her, I accept the Smith decision and do not support either the Sherbert standard or statutory RFRAs.

But there is a significant difference between me and both my legal commentators, and perhaps that difference makes our agreements harder to discern. Working in the framework of constitutional law, they would counter the excesses of religious liberty with a reinvigorated separationism, whereas I don’t think any doctrine of church and state can be made rationally coherent, because the category of religion is itself not rationally coherent. To me, the impossibility of church-state doctrine lends urgency to my proposal that we analyze these conflicts in social and ethical terms. But whether or not one maintains hope for this area of constitutional law, the kind of larger analysis that I offer can only improve our management of religious conflicts. And an examination of the category of religion, which scholars of religion are uniquely positioned to offer, should inform constitutional scholars who are brave or unfortunate enough to work with the jurisprudence of church and state.

As a citizen, I am indebted to Professors Griffin and Greenhouse and the other fine scholars working to steer the religion clauses in good directions, and I would no more want them to stop doing that than I would want progressive theologians to cease their good work. The comparison is not accidental. My training as a theologian inclines me to notice that the situation of a constitutional scholar is in some ways analogous to that of the rabbi, theologian, imam, or other religious scholar. Both the religious scholar and legal scholar work within doctrinal traditions and commit themselves to certain canonical texts. They are always interpreting those texts, but they never toss the texts out or allow themselves to ignore the gnarly parts. In both fields, the best scholars work at the cutting edges of the tradition, pruning and shaping doctrines so that they grow in fruitful directions.

I honor those textual commitments and the communities they sustain. But in my time doing theology I developed an additional commitment—a commitment to what my childhood math teachers called “showing my work.” Certainly, I’ve often hoped that my students and readers would reach certain conclusions—say, that creationism does not belong in the biology classroom or that, despite Leviticus 20:13, gay men should not be put to death. But early in my career, I sometimes noticed that students seemed a little uneasy. Even if they liked where I’d brought them, they weren’t sure how they’d gotten there and wouldn’t know how to repeat the trip on their own. How could I be reading the Bible so differently than their parish priest or a devout parent? What were the rules of interpretation, and how could one assess which interpretation was best? I found many ways to answer these sorts of question, but my guiding principle was the same: I had to illuminate conflicts rather than just fight on one side of them. I had to provide others with the tools that I had been given, so they could look at the tradition for themselves and in this way make it their own.

In America’s Religious Wars, I set out to show how the word “religion” does its magic in America. How did “religion” get the power to underwrite freedom, to delimit government, or to distinguish convictions worthy of public credence from those that are purely private? How did “the secular” come to identify what sorts of things government may do, what sorts of claims may or may not be put forth in public, what sorts of legislative intentions are legitimate or illegitimate? Throughout the book, I show that our discourses of religion have developed for a variety of purposes: the assertion of rights, the justification of and resistance to conquest, the ranking of races and civilizations, the demand for equality, the making of war, the making of peace, and so on. These purposes may be political, economic, social, cultural, or psychological, but they are not, for the most part, intellectual. Religion as a category does not make intellectual sense because it was not created to make sense. And because the category of religion doesn’t make sense, neither does the category of the “secular.” (What is not-religion?) If we want to think afresh about the scope of freedom or the limits of government, it is pointless to open the box called “religion” and just look inside. What we’ll find there is only what we ourselves have put there.

As I discussed in chapter 1, the word religion began in the Christian west. Initially it referred, in the words of Jonathan Z. Smith, to “us” as compared to “them.” “We” (Euro-Christians) had true religion, whereas “they” had either no religion or religion of a primitive sort; “we” had democratic religion; whereas “they” (Catholics in the nineteenth century, Muslims in the twenty-first) have authoritarian religion, and so forth. This us/them logic explains why the Reynolds decision of 1879 could unanimously and unapologetically note that polygamy, while perhaps considered “religious” by Mormons, was found only among “Asiatic and African people.” Religion, at least religion of the kind that warranted free exercise protection, was the insignia of “us,” a national identity that tacitly included race as well as a host of Euro-Protestant convictions about how people should live.

In the book, I use the term “foundation religion” to refer to this association of religion with the majoritarian ethos of the American nation. Because it is nearly indistinguishable from culture, foundation religion can contain and sanctify norms that are not specifically marked as religious. Washington, for instance, associated religion with the “manners,” “habits,” and “morals” of American society; Jefferson took it for granted that religious freedom could never contravene “social duties and peace” (63, 81). “Manners,” “habits,” “morals,” “social duties,” “peace and good order” are ostensibly not religious terms, but from the beginning of the republic they established the social status quo as the frame within which “religion” could be recognized and promised freedom.

The norm of monogamy is a good illustration of how the national ethos can both ingest and disavow religion. Before 1862, when the federal government first clamped down on Mormon polygamy, the regulation of marriage occurred only at the state level. But a series of federal laws against polygamy in Utah territory effectively established monogamy as the national norm. In Reynolds, polygamy was defended in religious terms and lost, while monogamy, defended in racial and civilizational terms, won. By prohibiting polygamy, Congress and the Supreme Court were trying to dis-establish Mormon theodemocracy (124). But in the process, they were effectively establishing a different religious norm—monogamy. However, monogamy was unmarked as religion and could therefore enjoy exclusive government endorsement without appearing to implicate the Establishment Clause (129–30).

Generally, foundational norms are inchoate and tend to weaken when forced into articulation. In America’s Religious Wars, I argue that this is just what happened to American foundation religion once the Free Exercise Clause was incorporated to states in 1940. Within four years, the Court would decide that, while it could and should assess the sincerity of religious claims, it may not assess their truth. (Professor Greenhouse is a bit off on this point.) In 1961, the Court recognized nontheistic traditions including “Buddhism, Taoism, Ethical Culture and Secular Humanism” as religions. Normative assumptions about religion were further pared down in two Vietnam War–era cases involving the conscientious objector provision of the Selective Service Act. In United States v. Seeger (1965), the Court read “religious training and belief” to include the pacifist convictions of an individual who did not belong to a religion, reasoning that for Seeger pacifism constituted what theologian Paul Tillich called an “ultimate concern.” In the 1970 case of Welsh v. United States, the Court ruled that “religious training and belief” need not include belief in God. By 2005, in the case of Cutter v. Wilkinson, the Court would apply RLUIPA (the Religious Land Use and Institutionalized Persons Act) to Satanism, Wicca, Church of Jesus Christ–Christian, and Asatru (the last two of which are white supremacist groups).

As these examples suggest, the trajectory of legal discourse about religion followed that of the academic study of religion, traveling away from the premodern notion of religion as singular and normative (there is only one true religion and it is “ours”) to a modern and postmodern notion of religion as plural and descriptive (there are many religions and no one of them is assumed to be true or good).

It’s true that this shift has happened slowly in the judiciary and remains incomplete. I acknowledged this by commenting that after Sherbert “the major victories were won only by small Christian denominations” (280). I should have said “the only victories,” as Professor Greenhouse points out. Professor Griffin is also correct to notice that many Americans (and jurists) still cling to the fallacy that religion-as-such is good. As an example, I would point to the unfortunate Masterpiece Cakeshop decision, which turned significantly on the fact that a Colorado Civil Rights Commissioner pointed out that slavery and the holocaust had been religiously legitimated. Although the commissioner’s statement was factually unassailable, Justice Kennedy and the majority made clear that any government official who mentions such facts will be considered impermissibly “hostile” to religion and their subsequent decisions may be ruled invalid.

Still, over the twentieth century the judiciary was under increasing intellectual and political pressure to broaden its notion of religion, and in this context the Native American cases of 1986–1990 came to the Supreme Court. I do not mean that the Court meant to target Native American religious freedom claims for negative treatment. Quite the contrary; since the American Indian Religious Freedom Act of 1978, the federal government had been especially committed to the recognition and protection of American Indian religions. My point in chapter 4 was that Native American religious claims, especially sacred land claims, challenge the foundations of the republic in a way that no other religious claims can and, in so doing, expose the fact that the Anglo-American order rests on its own non-universal foundation (173).

The problematics of religious freedom are a theme throughout America’s Religious Wars. Beginning with the story of Washington and the Quaker pacificists in chapter 2, I point out that what the religious believer most needs is exactly what government can least afford to give—religious exemptions from general laws (62). Dealing with the Reynolds case in chapter 3, I notice that for all its flaws, this decision was right to say that constitutionally mandated exemptions would “make every man a law unto himself,” a line that Justice Scalia would quote in his Smith opinion. In my initial discussion of Sherbert v. Verner, I argued that constitutionally mandated religious exemptions only seem feasible on the faulty assumptions that religious conflicts with law would be few and relatively non-disruptive. In the period after Sherbert v. Verner, I noted, “there was no principled way to limit [the number of exemptions] or their disruptive effects on government” (86). And when I reached the Smith decision, I argued that this case, “showed the impracticability of religious exemptions not just for Native people but for all Americans” (174). To me, the lesson of this history is that “religion” is not a viable way to determine the scope of freedom; either “religious freedom” is given only to socially favored entities, or it is given equally, in which case it proves to be impracticable.

In the conclusion of the book, I recap these moments in the history of religious freedom and then give a short, critical account of RFRA. Because the book has a wide historical scope, my treatment of contemporary developments arises only at the end. But in the context of what’s gone before, my comments on RFRA are not what Professor Greenhouse calls an afterthought. They are more like the knot at the end of a thread that has run through the whole book. RFRAs, I argue, have effectuated the majoritarian turn that the Smith decision, despite its espoused respect for minorities, advanced. By excising most judgments about religious exemptions from courts and resituating them with legislatures, Scalia was deliberately rebalancing power in favor of religious majorities, whose sympathy minorities would have to win in order to gain exemptions (281).

RFRAs ostensibly promise religious exemptions to all, but it is impossible to write every potential religious objection into a law and its implementing regulations. Instead, it’s only the groups that are loudest and most legible as religion whose interests get written in. That’s why the HHS regulations for Affordable Care Act have exemptions about abortion and contraception, but not for transfusions or gelatin medicines. As I argue in the conclusion, if a range of minority religions representing anything like the actual diversity of American religions were to bring RFRA claims, legislatures would soon concede what the judiciary conceded in Smith—that it is not possible to constitutionally mandate religious exemptions on an equal basis, and hence not possible to constitutionally mandate religious exemptions at all (281). Until then, RFRAs serve religious interests that are weighed in terms of political power, not in terms of the more inclusive standards that (semi-) rational deliberation eventually forced upon the judiciary.

But running alongside the critique of religious exemptions, the book has a parallel thread on the equally intractable problems of the Establishment Clause. It starts with Jefferson’s wall of separation (accompanied by his insistence on “social duties”), through Protestant Nativism (which insisted that the Catholic and Mormon churches be separated from the state, even as it also demanded Protestant devotions in public schools), through the Americanism of Theodore Roosevelt (which separated religion from government yet firmly established an ethos of white supremacy, patriarchalism and imperialism), to the century-long conflict about the theory of evolution and the newer conflict over LBGT rights (in which religion-as-such is posed against a supposedly values-neutral secularism). The knot at the end of this thread, like the knot at the end of the religious freedom thread, is that the Establishment Clause can’t be made coherent, because the meaning of religious and secular are inevitably predetermined by the politically-desired outcomes (276–79).

Although separationist neutrality is not the same as hostility (a point that Chemerinsky and Gillman argue very effectively) it’s also true that separationism often is tinged with a negativity toward religion. This negativity is not unjustified, as I have noted above. Still, I think Professor Griffin is wrong to suggest that the main product of religion is war. By “wars of religion,” I can’t tell if she is referring to the European Wars of the sixteenth and seventeenth centuries or to the American conflicts recounted in my book. But either way it’s misleading to suggest that the wars were simply over what we would now call religion. The European wars were about not only about the papacy, predestination, and such; they were also about territory, governance, the distribution of wealth, sexual regulation, and more. America’s Religious Wars shows that it was the same with American religious conflicts, every one of which has also been social, economic, and political. History does not bear out the claim that removing “religion” from the public sphere ameliorates these worldly conflicts. In fact, the translation of religion into apolitical “opinions” that need not be fought over was itself an outcome of the European wars, as I argue in my discussion of John Locke (32–38). This redefinition of religion did not resolve the material conflicts, but rather allowed the prevailing arrangements to be cemented into law and culture, where they would no longer appear “religious” and could no longer be fought about as such.

And, despite the excesses of the religious right, I don’t think it is true that “the more religion grows, the fewer civil rights people have.” To see the historical inaccuracy of this, we need only recall the religious roots of the abolitionist, suffrage, and civil rights movements. To understand its present-day inaccuracy, we only have to consider the range of politically liberal denominations in the United States today. A sampling would include Reform Judaism, the United Church of Christ, Unitarian Universalists, the African Methodist Episcopal Church, the Episcopal Church, American Buddhists, and the liberal wing that can be found in every mainline denomination from Catholicism to Orthodox Judaism.

It’s no surprise that the religious right, which wants to command the public spotlight, rarely acknowledges the more liberal religious traditions. But it’s a shame that so many liberal secularists do the same. This is a phenomenon that, in chapter 5, I saw emerging in the Scopes trial, when Bryan and Darrow united in their tacit agreement that fundamentalism is the standard of American religion and that modernist religion isn’t really religion at all. In that discursive pattern, religion became a singularity that one must either be for or against. Liberal secularists, finding themselves in the latter position, incur what I think are truly regrettable consequences. One is that liberal secularists, while aiming their fire at the religious right, may also injure the sensibilities of millions of other Americans to whom religion is important. That could include indigenous practitioners, Latinx people, immigrants, and members of the Black church. Another consequence is that American religion discourse has become frozen in a form that holds secularism and religion in fixed roles, repeating scripts that have changed remarkably little for a century.

To be clear, mine is not an argument “for” religion. Professor Griffin notices this when she comments that I “accept” that religion is not (necessarily) good. That’s correct, but it’s an understatement, because in the introduction I say that it is fallacious to think that religion-as-such is good, and I hammer away at the point throughout the text. What’s perhaps harder to digest is my equivalent opposition to the fallacy that religion-as-such is bad (13–15). In describing both views as fallacies, I am not making a judgment about the relative harms and goods done by religion. (And how would one make such a calculus, anyway?) Instead, it’s my considered observation that when we equate religion with the good (and are thus “pro-religion”) or with the bad (and are thus “anti-religion), we are substituting the concept of religion for the granular ethical analyses that conflicts marked as religious actually demand.

This, in my view, is the problem that bedevils all doctrines of church and state. The religion clauses set religion aside as a unique. Religion and only religion is promised the protections of Free Exercise; religion and only religion may not be established. Professor Greenhouse is correct to say that the main problem of church-state jurisprudence is the relationship between the two clauses. But whether one stresses the unique protections of the Free Exercise Clause (as do accommodationists and religious nationalists), or the unique government constraints implied by the Establishment Clause (as do secularists and separationists), in either case one must assume that religion really is a unique and readily discernible thing. But religion isn’t “really” anything; it’s a word whose usages almost inevitably encode prejudgments about the very issues that are in need of deliberation.

For instance, the separationist argument of Chemerinsky and Gillman relies on a distinction between the public and the private—religion is supposed to be private, and the public sphere is defined partly by the exclusion of religion (19, 46, 66, 166). But those who oppose abortion rights and same-sex marriage do not see their views as only private. They think abortion is wrong for everyone and that society is harmed by same-sex marriage. What should be public and regulated or private and unregulated is, for them, precisely the question. To really illuminate that question, we would have to have conversations that address principles of social ethics and their application to real social and historical situations. Of course, this is much harder than settling the matter by saying that religious views should not bear on government. But, as I conclude in America’s Religious Wars, “religion” can no longer carry the burdens of democracy with which we have historically saddled it. I think it’s time to pick up those burdens and find a way to carry them on.

***

Again, I want to thank each of my commentators for spending time with my book. I also commend and recommend their own valuable work—Professor McNally’s widely respected scholarship on Native American religions (which I’ve been reading for years), Professor Walker’s fascinating work on African American freemasonry, Professor Griffin’s collegial kindnesses and scholarly incisiveness, and Professor Greenhouse’s learned, lucid columns in the New York Times—which I read, well, religiously.

Although I’ve done my best to respond to these commentators for now, I know I’ll continue reflecting on and learning from what each has said to me. If commentaries can include both understanding and misunderstandings, the same is certainly true of responses to commentaries. I ask whatever forbearance my response might require, knowing that what we’ve written here is a single node in a vibrant and growing web. Perhaps one day, if circumstances permit, some of us might carry this conversation forward over a cup of tea (or the beverage of your preference). A hui hou.