Democracy & Religion: - Specialized Research AI at MIT

Democracy & Religion:
Some Variations & Hard Questions

Kent Greenawalt

The ideas sketched here concern the nonestablishment and free exercise norms ex-
pressed in the U.S. Constitution, their application to governmental institutions from
legislatures to prisons and the military, the place of religion in the curricula of public
schools, and the proper role of religious convictions in lawmaking. A major concern
of the essay is the problem of achieving an appropriate balance between govern-
mental neutrality toward religion, as required by the nonestablishment norm, and
governmental accommodation of religious practices that would otherwise violate
ordinary laws, as required by the free exercise norm. A recurring theme is the com-
plexity of the issues and the variability of possible solutions given differences in the
history and culture of democratic societies.

W hen one asks about the relation between democracy and religion, we

have some answers that seem fairly obvious and others that do not. My
basic claims are that there are important variations within democracies,
that these may affect aspects of the proper treatment of religion, and that even with-
in a modern, liberal democracy like that of the United States, we have some hard
questions that lack simple answers. Certain answers to these questions do seem true
across the board; others do not. The latter require a more particular focus.1

What does democracy in general entail? Perhaps we have no precise defini-
tion, but we can take democracy as a system of government in which all adult citi-
zens have a right to vote. Assuming we are not talking about a minuscule political
order in which ordinary people would directly determine prevailing law, citizens
elect legislators, and the highest executive officials are either also subject to citi-
zen votes or are chosen by legislatures. I think we can say that if it is a genuine de-
mocracy–that is, a country that recognizes the political rights of all citizens–it
will allow people to choose whether or not to worship and essentially what form
of worship to engage in. Of course, there can be some limitations if a form of wor-
ship is obviously harmful for those engaging in it or for others.

What people see now as counting as a genuine democracy has developed over
time. The original United States may have been conceived as a democracy, although
racial slavery existed in many states and women rarely had a right to vote. Under

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contemporary conceptions, a political order with either of these factors might not
be seen to be a genuine democracy. In respect to freedom of worship, one can imag-
ine an exception if a particular religion and most of its followers are committed to
violent acts against other citizens or overthrowing the basic political system.

T he United States, like many other modern democratic states, has no estab-

lished church. What does this nonestablishment norm imply regarding
governmental favoring or endorsing some particular religion? Suppose
members of a particular religion basically form a society. This was true for certain
sections of the British Colony in America that were created by religious groups,
some of which maintained influence in the early states. And to note something
often forgotten, the original First Amendment instructed “Congress shall make
no law respecting an establishment of religion.” This meant partly that Congress
could not interfere with state establishments. If we consider those states to have
been genuinely democratic, we would not see nonestablishment as required for
democracies in general. To put this a bit differently, if the vast majority of peo-
ple are members of a particular faith, government support for that faith does not
seem at odds with basic principles of democracy, at least as long as nonadherents
are both free to worship in a different way, or not to worship, and do not have their
fundamental political rights, such as voting and running for office, denied because
they do not adhere to the dominant religion. The fact that a particular religion is
established might have little effect on the fundamental rights concerning a liberal
democracy, although it can be in some tension with a maximum sense of religious
freedom, having a tendency to yield some preferential treatment for those who
are members of the established church. England, for example, for many years had
both an established religion in the Church of England and been essentially a de-
mocracy, although it maintained its monarchy.

T he free exercise principle is an important aspect of the general liberties

afforded to citizens in modern liberal democracies. Exactly how special it
is turns out to be a complex topic on which I will offer a few brief obser-
vations. One can ask about both how human perceptions figure and what our law
now provides. For seriously religious persons, religious convictions and priorities
can be central in their lives; they may care deeply about whether the government
is interfering with these in any way.2 In a diverse society, even people who do not
themselves possess such feelings do well to recognize them in others. It follows
that the government should be taking these convictions and sentiments into ac-
count, at least if a significant percentage of the population possesses them.

When one asks about existing law, matters are factually complex. In the case
of Employment Division v. Smith in 1990, the Supreme Court decided that for most
general laws not directed at religion, those with religious objections had no con-

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Dædalus, the Journal of the American Academy of Arts & SciencesDemocracy & Religion: Some Variations & Hard Questions

stitutional free exercise right to special treatment.3 This has led to questions of
whether the free exercise clause has become redundant, swallowed up by freedom
of speech and association.4 But a great deal remains in the special status of reli-
gious exercise. Here are five aspects. Employment Division v. Smith does not cover all
religious practices. Churches and other religious practitioners retain the right to
limit their clergy to men and to those who are not homosexual.5 Employment Di-
vision also indicates explicitly that legislators can make concessions to religious
practices.6 We now have the Federal Religious Freedom Restoration Act, the Re-
ligious Land Use and Institutionalized Persons Act, and many similar state provi-
sions that do just that.7 A subtler point concerns circumstances in which the gov-
ernment must treat nonreligious claims the same way it treats similar religious
ones. Even here, if the religious claims help to provoke the basis for what equal
treatment is required, free exercise remains important.

Two further aspects of significance concern the relation between free exercise
and nonestablishment. The most obvious is that both clauses are designed to pro-
mote government noninterference and freedom of religious belief and practice.
Free exercise bears on how one should see the basic notion of nonestablishment.
And sometimes the values of the two clauses do seem to come into conflict, as
with prayers to begin legislative sessions. If this content is suitably neutral regard-
ing the issues on which the legislative body must vote, those wanting the prayers
may claim that allowing them is a free exercise right. Then the question is how far
free exercise qualifies the coverage of nonestablishment, or is itself qualified by
the conflict.8 In all five of these ways, free exercise remains a special liberty that
has not become redundant.

When one considers how religions should be treated, one recognizes that giv-
en the diversity of populations, nonestablishment, at least in some form, is need-
ed. In an important sense, the two basic concepts of nonestablishment and free
exercise work together. If the government favors one religion over others, that
will enhance the actual practices of that religion, while possibly interfering with
what other religions do. Also important, favoritism is bound to encourage some
people to get involved with that religion; this impairs the basic idea that people
should choose freely whether to join a particular form of religion, without being
pushed by the government. Some obvious examples are these. If the government
promotes strong financial support for and endorses a particular religion, involve-
ment in that religion may seem more attractive to someone not already dedicated
to another faith. And if favoring includes teaching of a particular religion within
public schools, that could incline students to believe that it is the true religion.
Of course, teaching about a religion is not the same as teaching or implying its
truth, but that distinction may not be simple for teachers or students. Neverthe-
less, omitting reference to religion in human history would convey a nonobjec-
tive, unrealistic account of all that has mattered.9

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149 (3) Summer 2020Kent Greenawalt

For the values underlying both free exercise and nonestablishment, the gov-
ernment should not favor some religion over others. This key to the basic idea of
nonestablishment is strongly supported by the core value of free exercise, since
people will feel more free about religion if they understand that the government
will not favor or disfavor them based on their convictions or the groups to which
they are joined.

A modest exception to the no-disfavoring occurs if a religious group, or a seg-
ment of that group, supports violence against others. An existing controversial ex-
ample of this concerns Islam. So long as a significantly large proportion of Mus-
lims support violence against non-Muslims or Muslims of different denomina-
tions, it may be appropriate to do a more careful screening of Muslims–at least
Muslim adult males who are not elderly–who seek entry into the United States.
This cautionary policy differs from objectionable “racial profiling” in deciding
who to admit to our country.

Although free exercise and nonestablishment basically fit with one another,
we do have, as mentioned, certain tensions between them. For some of these, it
is not easy to say what are the right approaches within a liberal democracy. Per-
haps the most obvious example is government engagement in religious practices
and messages, at least if these do not promote some particular religious beliefs
and groups over others. Is it appropriate for legislative sessions to begin with non-
denominational prayers and for presidents to end formal addresses with an appre-
ciation of God and a request for God’s help? Presidents, like ordinary citizens, are
free to have their own religious convictions, but when they reference those con-
victions in an official speech, such as a yearly address to Congress, their comments
amount to something beyond a simple personal expression. If most officials, as
well as most citizens, have religious beliefs, free exercise can support their expres-
sions for such occasions. For the most part, what the nonestablishment clause re-
quires does not depend on the religious outlook of citizens and officials, but the
extent to which free exercise concerns may qualify likely applications could de-
pend on it. Of course, what is generally relevant is the content and context of the
religious element in a public speech.

One way to view some of the apparent religious references is to see them as
merely “ceremonial deism,” referring to the culture and history of the country.
This was suggested by Justice Sandra Day O’Connor regarding the use of “under
God” in the Pledge of Allegiance.10 Although this perception may be accurate as a
representation of how a great many citizens regard the pledge, I am skeptical that
these are the dominant understandings of either aliens who say the pledge before
becoming citizens or students in public schools who are called upon to do so. I
think many in these categories, as well as some others, will perceive the pledge as
including an acknowledgment about the place of God, or at least references to an
actual God, in the United States.

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Dædalus, the Journal of the American Academy of Arts & SciencesDemocracy & Religion: Some Variations & Hard Questions

T he military and prisons, coercive institutions in which citizens lose many

of their rights, are two special government domains. For both of these, the
government should in some form provide religious exercise for those whose
overall freedom is constrained. For military members stationed abroad in combat
zones or aboard navy ships, the government may need to provide clerics themselves.
For prisoners, it may manage by bringing clerics from outside to enter and provide
services. The free exercise clause should here be taken to require, or at least autho-
rize, reasonable efforts by the government to provide actual opportunities for typi-
cal exercise for those not free to go where they can worship as they choose.

An interesting question connected to all this is whether nonreligious activi-
ties and convictions should be treated equally. A believer in absolute “neutrality”
might think the right answer is “yes”; but I believe, as noted earlier, that this view
is an oversimplification. If soldiers and prisoners are given time to pray or an op-
portunity to have their dietary needs satisfied, allowing others a time to reflect
or satisfy their genuine convictions about acceptable food makes sense, but the
provision of clerics is different. Despite some decline, religion remains very im-
portant in the lives of many Americans, and for most religions, the role of clerics
is central to worship. One might imagine some nonreligious analogue, in which a
leader is central to gatherings organized around basic values and experience, but
actual examples are few or nonexistent. For something like actual military chap-
lains, we cannot expect a government accession to a nonreligious analogue. Here
religion will appropriately be given special status. However, apart from special
cases, government need not provide for clerics in all denominations in every mil-
itary situation in which there is a need for a chaplain. In some cases, nondenomi-
national chaplains might have the appropriate skills.

Prisons present harder questions still, such as whether religion should count
about judgments concerning parole and, if so, what the role of clerics should be. Al-
though this consideration could produce concern about dishonest affiliations, if it
is true that religious involvement makes subsequent criminal acts less likely, parole
boards should be able to take that involvement into account. They should, howev-
er, probably avoid making these determinations vary depending on precise statis-
tics about particular denominations. An obvious exception to equal treatment con-
cerns attachment to religions that themselves promote criminal acts. An interest-
ing special example here concerns a religion that encourages polygamy. One might
conclude that its members are more likely to commit what counts as a particular
violation of law, but no more likely or even less likely to commit other crimes.

Determining the proper role of clerics in parole board decisions is itself not
simple. If religious practices and convictions are to be taken into account, cler-
ics need to be able to testify about individual applicants for parole, although this
constitutes religious personnel seriously affecting a certain kind of official deter-
mination. An important distinction here is between clerics contributing to infor-

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149 (3) Summer 2020Kent Greenawalt

mation bearing on the problem of recidivism and their describing the specifically
religious character of the prisoner, which might or might not have such a bearing.
In a number of states, clerics actually serve on parole boards. That may well be
too great an involvement of clergy in government decisions, an involvement espe-
cially likely to encourage prisoners to get involved with the particular religions of
those clerics. I believe this practice should be regarded as at odds with the values
of nonestablishment and free exercise.

P ublic schools in democratic societies generate their own problems. As a

matter of principle, schools should teach about the place of religion in hu-
man history, but not the truth or falsity of a particular faith. They should
also not teach more general points, such as that a loving God genuinely exists,
or that atheism is actually true. The distinction between teaching about religion
and teaching a religious claim as true may be difficult for teachers to draw and for
schoolchildren to perceive. This may lead some to conclude that it is desirable for
those subjects simply to be omitted. But doing that would yield an incomplete ac-
count of what has mattered historically and would do so in a way that minimizes
the actual place of religion. One could see this as a form of establishment of non-
religion conceived as presupposing atheism or at least as minimizing the actual
place of religious views and practices in human life. This would implicitly encour-
age a kind of minimization of the importance of religion in students’ perspectives.
Despite the complexities about distinguishing between an “objective” account of
various beliefs and practices and an apparent implication of their likely truth and
intrinsic value, to totally disregard the place of religion in human life and in our
culture is much worse. Public schools properly include religious topics in what
they cover, while teachers should at the same time try hard not to endorse any par-
ticular religious conviction.

When it comes to teaching subjects like evolution that are well established by
science but conflict with the religious beliefs of those that take certain biblical
passages about creation as literally true, should teachers delve into the compet-
ing version? I believe not, although teachers may tell students that some people
have a strikingly conflicting religious view. If a topic is subject to rational anal-
ysis and does not depend on any particular religious outlook, it is appropriately
taught for itself in public schools. This would be true of mathematics and science
among others. Concerns that are raised by a subject, such as worries about cli-
mate change, are appropriately covered. When it comes to competing views that
are based on entirely different premises about reality, such as a biblical account of
when God created human beings, it is fine for a teacher to mention these, but not
appropriate to explore them in analytical detail.11

Matters are more complicated when it comes to moral issues. Some moral
questions are answerable on rational grounds. For example, parents should pro-

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Dædalus, the Journal of the American Academy of Arts & SciencesDemocracy & Religion: Some Variations & Hard Questions

vide care for their children, and no one should kill another due to slight irritation.
But we do not have simple rational answers about when abortions are not a mat-
ter of moral concern and what laws and public policies should thereby be institut-
ed. Similar concerns exist for whether adoption by intergender couples should be
preferred over gay couples because it is desirable for a child to have parents of both
genders. I am assuming here that gay couples should have the right to marry they
were accorded by the Supreme Court in Obergefell v. Hodges, and that this includes
a right to adopt children.12 But it does not necessarily follow that parental genders
are irrelevant to who might be favored for a specific adoption. When it comes to
such issues, it may be best for teachers briefly to explain opposing views, includ-
ing religious ones, but without getting into details. Something similar may be ap-
propriate for some political issues, although Donald Trump’s presidency has led
many to believe those involve certain moral concerns that have correct answers,
such as whether political leaders should be basically honest.

W hat of religious convictions in lawmaking? Should laws and policies

in our liberal democracy, or any democracy, be based exclusively on
grounds that are not religious or anti-religious? If so, both legislators
and citizens with relevant religious convictions about an issue should make ev-
ery effort to disregard them in their political stances. How persuasive or realistic
this position is turns out to be quite complicated. We need to distinguish among
kinds of issues, between legislators versus ordinary citizens, and between actual
reliance versus articulated bases for a stance, as well as how much courts should
be involved in all this in constitutional and statutory interpretation. One may
think it is healthy for judges constitutionally to protect the exercise of religion
from ordinary laws that impair it. But with a few exceptions, the Supreme Court
decided, in Employment Division v. Smith, that no such right exists. That leaves it in
principle up to legislators to decide about the range of special treatment for reli-
gion. Ironically, legislators may decide to adopt a flexible standard that reinstates
the range of judgments left to judges. This is what Congress did with the Reli-
gious Freedom Restoration Act and the Religious Land Use and Institutionalized
Persons Act.13

Political decisions that actually favor one religion over others are not of gen-
eral concern: under a basic nonestablishment principle, such laws and executive
practices should not be adopted and citizens should not support them. More de-
serving of our concentration are essentially nonreligious questions, about which
religious teachings may take particular positions. An obvious example that has
existed throughout time is how much aid the government should give to people
who are poor and disadvantaged. A different illustration concerns a modern con-
troversy in the United States: is it or is it not acceptable to separate children from
their parents in immigration detention?

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149 (3) Summer 2020Kent Greenawalt

How simple is it for someone to distinguish the weight of nonreligious con-
victions from religious ones and to assess their degree of personal influence over
time? Suppose that someone believes she should make a decision on non religious
grounds: the government should give substantial aid to the poor and disadvan-
taged because it is the just thing to do. Yet she also believes that a loving God
strongly wishes people to provide that kind of help to others. For most such peo-
ple, it would be very hard or nearly impossible to discount completely their reli-
gious beliefs in arriving at an attempted religious-independent position.

Let us consider a more complicated example. Suppose someone was raised in
a religion that takes a strong position on a particular issue, such as aid to the poor,
abortion, or same-sex marriage. In his early years, he was a devoted follower and
embraced these positions. As he grew older, his religious convictions disappeared,
and he came to regard religious bases as irrelevant. But when our subject thinks
about contentious issues in nonreligious terms, can he really discount the influ-
ence of his earlier views? In a straightforward way, his past perspective could lead
him to believe that what he long accepted as sound positions on crucial social is-
sues remain so. But we can also imagine a kind of reverse influence. If a person
now believes the religion itself is foolish, he might conceivably discount the force
of nonreligious reasons that support political positions the religious group has
taken.

When we put all this together we can see how hard it could be for many peo-
ple to genuinely rely only on nonreligious thinking.14 This counts strongly against
telling citizens that they should rely only on nonreligious reasons. More directly,
assuming many in the country do have religious convictions, when it comes to is-
sues that do not directly concern religion, such as public aid for the poor, I do not
think it should be seen as wrong, nor as a kind of establishment, for them to rely
self-consciously on the religious truth in which they believe.

Given that legislators represent many kinds of citizens, the more powerful ar-
gument is that they should rely as far as possible on nonreligious reasons, reasons
of a kind that can be shared by rational citizens independent of any religious con-
victions they may have.15 Legislators, however, like the rest of us, may have some
difficulty figuring out how far religion has influenced their positions. Of course,
one nonreligious factor for legislators is a need to satisfy the desires and convic-
tions of those they represent. And that could well include giving a degree of weight
to the religiously based positions of members of that group.

When we turn to public articulations defending positions, as in open legisla-
tive sessions, political platforms, and campaign speeches, we can expect legisla-
tors to rely on nonreligious bases that are widely accepted. And in a liberal democ-
racy, it makes good sense for advocating citizens to act similarly. If this is right,
then the public arguments for positions may be more nonreligious than the com-
plete balance of influential bases.

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Dædalus, the Journal of the American Academy of Arts & SciencesDemocracy & Religion: Some Variations & Hard Questions

D oes religion merit special treatment in a liberal democracy? To approach

this complicated and sometimes highly controversial question, I begin
with three important generalizations. The first is that the appropriate an-
swers may well not be the same for all types of liberal democracy. The beliefs and
practices of most citizens will shift over time and will be quite different in dif-
ferent countries. The best answers for a given country depend partly on the cul-
tures of the country at the time. Here I focus on the present-day United States. The
second generalization is that even in the context of a single democratic country,
we should not assume that there is one decisive answer to apply across the board.
It may well be that religious convictions and practices will warrant special treat-
ments in some parts of a country but not others. The third point is that, for this
discourse, one should not rely directly on an individual religious conviction itself
but rather reasons that have wide acceptance.

Among the issues of concern here are non-favoritism of some groups or indi-
viduals over others, concessions to beliefs and practices, and specific privileges
for groups.

A core idea of nonestablishment that contributes to free exercise is that the
government should not favor some particular religious bodies and organizations
over others. Is this special for religion or does it have broader application? There
is no simple answer. We can certainly understand that the Equal Protection Clause
precludes favoring white groups or African-American groups, and the Free Speech
Clause may similarly bar certain categorizations, but at least in our present culture,
the constraint concerning treatment of religious groups is taken as more absolute.
To this degree, the free exercise and nonestablishment clauses do exercise a greater
constraint against differential treatment than do other constitutional provisions.

If the government does not favor a particular religious group over others, may
it grant some privilege to religious groups that does not exist for nonreligious
groups? Of course, concessions should not allow religious groups to directly harm
others or to receive privileges that have nothing to do with their religious practic-
es. But that leaves us with questions about religious practices that may be at odds
with general legal requirements. Two notable examples here are hiring decisions
and the consumption of substances.

Suppose a religion holds that God has instructed us that only men should be
priests. Precluding women from the position is at odds with established law pro-
hibiting gender discrimination. But to tell members of a religion that they must
accept as clergy those they believe are ineligible would be a substantial restraint on
their free exercise. Not surprisingly, the Supreme Court has accepted the practice
by churches, including the Roman Catholic Church, of limiting clerics to men.16
When it comes to controlled substances, what is generally forbidden by law
may be part of a core practice of a religion. Two examples here involve commu-
nion wine and peyote as an ingredient for a religious gathering. Since no state now

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149 (3) Summer 2020Kent Greenawalt

bans the sale and drinking of alcohol, the wine example is no longer a practical
concern; but such bans did exist in the United States in the past. Some Christians
believe God has instructed the ritual consumption of wine as a representation
of the blood of Jesus, and many others think this use is at least symbolically val-
id. Given the small amount of wine taken by those participating in communion,
which itself does not elicit typical concerns about the consumption of alcohol, an
exception here was obviously favorable (even if a few consumers might have been
encouraged by the experience to go home and drink more).

More difficult is the case of religious use of peyote, since the basic effects result-
ing from religious medicinal use are not so different from those generally regarded
as harmful or dangerous enough to warrant a broad prohibition. Whether the use
in a religious service is enough to warrant an exemption is a more nuanced ques-
tion, with complicating factors of sovereignty and history, among many others.

S hould individuals be excused from ordinary legal requirements, such as

military conscription, because of religious convictions and, if so, when?
Should nonreligious convictions get the same treatment? Obviously, if the
legal requirement offers citizens protection from substantial harm, such as crim-
inal laws prohibiting battery, no special exemption should go to religious individ-
uals and groups. It may, however, be acceptable for religious groups to discipline
and treat their own members in more subtly negative ways that could be subject
to tort liability in other contexts.

What if the privilege does not cause direct harm to anyone? Shall a religious
objector be excused from jury duty or a military draft? The draft situation has in-
voked a specific statutory exception, prompting the key question of whether non-
religious claims should be treated similarly. Very briefly, given that a genuine pac-
ifist will not engage in military efforts, a broader exemption clearly makes sense,
especially if some form of alternate service is required. Congress sought to limit
the exemption to religious claimants, but the Supreme Court responded by read-
ing “religion” in the statute so broadly that it included those whose pacifist con-
victions were not religious in an ordinary sense.17 (Justice Harlan voted with the
plurality to make a majority, but his basis was that restricting the privilege to reli-
gious convictions in this context was unconstitutional.)

R eaders may disagree with some or many of my actual positions on these

complex and controversial issues. But my overarching point is that the
right relations of democracy and religion can depend on cultural set-
tings; and even within a particular setting, like the present liberal democracy of
the United States, we have a number of less-than-simple questions about what is
called for. These lack complete and indisputable answers. Like much of our lives,
what is right is both complex and disputable.

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Dædalus, the Journal of the American Academy of Arts & SciencesDemocracy & Religion: Some Variations & Hard Questions

author’s note

This essay was written for a research seminar held in Rome in March 2019 and
sponsored by the Australian Catholic University. For helpful questions and com-
ments, I thank David McCabe, who was my respondent in the seminar. I benefited
greatly from suggestions from Robert Audi.

about the author

Kent Greenawalt, a Fellow of the American Academy since 1980, is University Pro-
fessor at Columbia Law School and the Department of Philosophy at Columbia Uni-
versity. He has served as Deputy Solicitor General in the U.S. Department of Justice,
Editor-in-Chief of the Columbia Law Review, and President of the American Society
for Political and Legal Philosophy. He is the author of, most recently, Realms of Legal
Interpretation: Core Elements and Critical Variations (2018), When Free Exercise and Nonestab-
lishment Conflict (2017), and Exemptions: Necessary, Justified, or Misguided? (2016).

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endnotes

1 What follows summarizes matters I have explained and positions I have taken in various
writings. Among these are the following books, which can be a source for readers who
want to explore some of the issues in more depth. Kent Greenawalt, Religions and the
Constitution: Free Exercise and Fairness (Princeton, N.J.: Princeton University Press, 2006);
Religion and the Constitution: Establishment and Fairness (Princeton, N.J.: Princeton Univer-
sity Press, 2008); Does God Belong in Public Schools? (Princeton, N.J.: Princeton University
Press, 2005); Statutory Interpretation: Twenty Questions (New York: Foundation Press, 1999);
Conflicts of Law and Morality (Oxford: Oxford University Press, 1987); Exemptions: Neces-
sary, Justified, or Misguided? (Cambridge, Mass.: Harvard University Press, 2016); From the
Bottom Up (Oxford: Oxford University Press, 2016); When Free Exercise and Nonestablish-
ment Conflict (Cambridge, Mass.: Harvard University Press, 2017); and Religious Convic-
tions and Political Choice (Oxford: Oxford University Press, 1988).

2 See Robert Audi, Democratic Authority and the Separation of Church and State (Oxford: Oxford

University Press, 2013).

3 Employment Division v. Smith 494 U.S. 872 (1990).

4 I am presently working on a book about the nonredundancy of free exercise (it has not yet

been submitted for actual publication).

5 See Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission 132

S. Ct. 694 (2012).

6 Employment Division v. Smith.

7 42 U.S.C. §2000bb-1 (1993); and 42 U.S.C. §2000cc–§2000cc-5 (2000).

8 Among my writings to address the subject is Greenawalt, When Free Exercise and Nonestab-

lishment Conflict.

9 See Greenawalt, Does God Belong in Public Schools?

149 (3) Summer 2020Kent Greenawalt

10 See her individual opinion (concurring in judgment) in Elk Grove Unified School District v.

Newdow 542 U.S. 1, 36–37 (2004).

11 Although I have explored much of this in earlier work, Robert Audi’s essay “Religion
and Politics of Science: Can Evolutionary Biology Be Religious Neutral?” Philosophy and
Social Criticism 35 (1–2) (2009): 23–50, provides a superbly detailed account of various
considerations and the weight they should carry that far exceeds what my own work
contains.

12 Obergefell v. Hodges 576 U.S. ___ (2015).
13 See 42 U.S.C. §2000bb-1 (1993); and 42 U.S.C. §2000cc–2000cc-5 (2000).
14 See Greenawalt, Religious Convictions and Political Choice.
15 Ibid.
16 See generally Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Com-

mission 132 S. Ct. 694 (2012).

17 Welsh v. United Sates 398 U.S. 333 (1970).

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Dædalus, the Journal of the American Academy of Arts & SciencesDemocracy & Religion: Some Variations & Hard Questions
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