Winnifred Fallers Sullivan is arguably the premier scholar of law and
religion in the United States. She brings to the field of law an
unparalleled degree of sophistication and historical and anthropological
knowledge. When she says that all religious freedom laws are rotten at the core, that claim has to be taken seriously.
The core of the problem, she writes, is the distorting effect of the
demand that the state distinguish the religious from the nonreligious.
The religious life of most Americans, “incredibly varied, creative, and
entrepreneurial,” has become so disconnected from the law’s
understanding of religion that the law should abandon the use of the
category, “religion.”
As Sullivan notes, the Religious Freedom Restoration Act (RFRA)—the basis of the Burwell v. Hobby Lobby suit—was a reaction to the “notorious” Employment Division v. Smith decision, which limited the scope of the free exercise clause of the First Amendment. There are reasons for the notoriety and Smith was widely condemned.
RFRA passed by overwhelming margins because most Americans thought that
the tradition of specifically religious accommodation was valuable.
Since Colonial times, Quakers have been exempted from oath-taking and
military service. Catholics were permitted to use sacramental wine
during Prohibition.
Our choices are clear: either we sometimes accommodate, or we never
accommodate. The argument for the latter option relies precisely on the
religious heterogeneity that Sullivan invokes.
I elaborate the argument in a piece just posted on The Immanent Frame, here.