The Dynamics of Exemption and Establishment 

Editors’ Note: In recognition of the 100th anniversary of Pierce v. Society of Sisters, this article is published as the third in a three-part series on religious freedom. 

What can the minority in a democracy reasonably expect from the majority? Church-state conflict in this country always seems to boil down to this basic question, whether the issue is Christian crosses on highways, objections to vaccine or mask mandates, privileges for general reporting requirements, prayers in schools or legislative sessions, funding for religious institutions, Native American objections to government land projects, or so many others.  

Yet nothing illustrates the problem quite as vividly as religious exemption. Exemption is sometimes called “accommodation,” a term that seems inapt. An accommodation is an obliging adjustment. If I plan on serving burgers and sausages at a barbecue, but I learn that one of my guests does not eat meat, I make an accommodation by including a pasta salad and grilled zucchini. I do so willingly, even complaisantly, because I harmonize the wishes of the vegetarian guest with the interests of the rest. Everybody wins. 

But everybody does not win with exemption. Exemptions (of any kind, religious or otherwise) from the laws are little negations of the laws. They suggest that the laws are actually not as important or essential as had been supposed. Exemptions are, in this way, politically subversive. They destabilize the legal settlements of democratic majorities, while encouraging sentiments of entitlement and interiority. True, sometimes democratic majorities enact broad exemption laws, as they did in the Religious Freedom Restoration Act and its state analogues. And yet James Madison once warned that the dangers of faction needed to be managed lest they engulf the common good. The ascendancy of exemption suggests that, today, faction is how Americans understand the common good. We have embraced a kind of federalism of personal autonomy.  

The mechanics of exemption as a matter of legislative grace suggest that there may be a difference between exemption as exception and exemption as constitutional mandate—between voluntary and compelled concession. Moderate use of exemption can reinforce the law’s primacy while making a softening indulgence. It can make the regulatory pill a little easier to swallow. It can even cement the hierarchy of authority. These exemptions are the backyard barbecue variety, the easy and non-threatening ones, and there are many in the law that are like this. “We are in charge,” such exemptions say, “but we’ll give you this one because we don’t really care.”  

More systematic use of exemption, by contrast, disrupts. Required exemption is not so much a concession as an expression of a transformed politics where there is no more culture war because there is no common culture left to fight about. Or to put it another way: exemption as the rule, as the political baseline, is a type of ersatz culture war. This may be one of its key functions—to fight the culture war from the rear. Exemptions of this sort are more threatening to the ruling power.  

Whether disruption is good or bad will depend considerably upon one’s views about the law’s merits and one’s position on the culture wars. People will feel differently about those questions. I myself often favor more aggressive sorts of exemption, precisely because of their unsettling possibilities. But that is beside the point. What is worth noticing here is the destabilizing potential of exemption. We can observe the pressure that exemption puts on the law while prescinding from the merits. And we should want to do that: legal strategies that might succeed in one or another case might have larger political effects that are also worth considering. 

As for the Constitution, scholars disagree about whether religious exemption was ever required as an original matter by the Free Exercise Clause. Others say that religious exemption may be a diffuse element of American legal culture, a logical corollary of the separation of church and state in the old, jurisdictional sense of separated spheres of civil and ecclesiastical authority. Whoever is right, the constitutional status of religious exemption is highly uncertain as a matter of original meaning. That may explain in part why some originalists partial to religious exemption have made common cause with non-originalists to defend it on non-originalist grounds.  

Be that as it may, today’s elaborate network of religious exemption laws and its constitutional status surpass what the most zealous champion of exemption can find in American history. The cry of “religious freedom for all” is admirable in many respects but also suggestive of a larger difficulty. “Religious freedom for all” is entirely defensible if it means that nobody should be coerced into religious belief or practice. Perhaps it also means that no one should be punished expressly on the basis of religious commitment as such, though that seems more doubtful: the line between belief and conduct sometimes can be maintained but at other times, as the Supreme Court says, it cannot.  

But if “religious freedom for all” means constitutionally required exemption from the laws for any claimant who has a sincere objection to them, under circumstances where the laws contain, or even merely contemplate, any other exemption, that is a more complicated matter. When the dissolution of religion as a coherent legal concept is combined with a demand for exemption, one has the makings of a potent political instrument. Of course, requests for exemption may still be overridden if the state has a compelling interest in its law that it is achieving by the least restrictive means, but those concepts are also highly contested. 

Exemption understood in this way—as a challenge to the polity’s bedrock—compels partisans of the political establishment to face up to which commitments they refuse to compromise. By “the establishment,” I mean not only the church-state sense of the term but also the broader sense used in Romans 13: the political settlements of the “powers that be.” Exemption can provoke our own powers to confront what they think is sufficiently embedded in the American political foundation for them to tell the minority, “No. You must obey our way. You may not have your way.” 

The Hand That Rocks the Cradle 

Of the three law and religion cases that the Supreme Court agreed to hear this term, Mahmoud v. Taylor seems like the surest bet for the religious claimants. The case concerns a 2019 Maryland regulation that sought to promote “educational equity,” which it defined as “view[ing] each student’s” “gender identity and expression,” “sexual orientation,” and other specified “individual characteristics as valuable.” To implement the law, the Montgomery County Board of Education introduced a series of books for elementary school students with (often explicit) LGBTQ themes. Official guidance documents directed teachers to read at least one of these books aloud each year followed by a discussion in which they should “[d]isrupt the either/or thinking” of children about biological sex, and should not suggest there could be reasonable disagreement about these matters. 

This instructional program did not sit well with hundreds of parents—a sizable minority—from a broad range of religious traditions, who requested that their children be permitted to opt out of it. That request initially was granted, but was later refused. The parents were further informed that they would not be told when the books would be read. These were all sudden policy changes: for years the Board had frequently allowed opt-outs for any “instruction related to family life and human sexuality,” as well as for “classroom discussions or activities” that families believed would “impose a substantial burden on their religious beliefs.” The parents promptly sued, arguing that the denial of the opt-outs and notice violated their rights of religious liberty. 

The Board makes two principal arguments: first, that the program merely exposes children to these books, and that having the books available for children is not a “substantial burden” on anybody’s free exercise of religion. And second, that the number of objectors to this particular program distinguishes the ordinary opt-out request, inasmuch as exempting so many students makes it virtually impossible for the school to teach the way it (and the state legislature) wants. 

The case is not difficult. The Board’s first argument is belied by the record. This is not a case about exposure to books sitting mutely on shelves, but about active instruction and the development of certain types of sentiments and attitudes in very young children. Children are required to attend school. They are required to sit and participate in instruction to which their parents object on religious grounds, and in which the school’s express object is to form their minds in a definite way. That seems to meet the legal standard for a substantial burden on religious exercise. 

The second argument is also easy legally. The school argues that the large number of objectors essentially precludes the new program from operating. To grant opt-outs at this rate is to kill the curriculum. Analogous claims have been made before. The trouble for the Board is that the Supreme Court has interpreted the “general applicability” prong of the free exercise test broadly. The Board gerrymandered its refusal for this specific religious objection alone. Its policy of granting exemptions from curricular and non-curricular school programming, and what the parents plausibly characterize as its “slapdash blitz” to eliminate opt-outs for this particular program, are likely to doom its position.  

Cycles of Exemption, Disestablishment, and Establishment 

The case is interesting because underneath the legal doctrine, it illustrates the fissures that exemption can create when it is used to unsettle the deep places in the political foundation—that is, the establishment. In fact, it shows how exemption and establishment exist in a kind of political cycle. Grant them frequently enough, and exemptions become an instrument of disestablishment. Exemptions are, in this way, establishment disruptors. And when they disrupt, they can usher in, bit by bit, their own establishment. I do not claim that the plaintiffs in Mahmoud intend these effects. What they want is simply that their children not be compelled to sit through this instruction. Their object is not to create a new establishment. But the point is not about this case specifically, but the changes that exemptions can bring about over time. 

In a thoughtful amicus brief in the case, Professor Eugene Volokh and Professor Justin Driver argue that exemptions on the scale contemplated in Mahmoud would “undermine the educational system” by “upsetting the balance” between state control of education and individual rights of free exercise. Reading their brief, one is reminded of Justice Harlan’s epigram that “one man’s vulgarity is another’s lyric.” Undermining the educational establishment is what exemption desired by large numbers of people can do. Indeed, it is what it is well suited to do, inasmuch as it presents itself to the Court as a mere opt-out, while its real function can be to change policy. 

Exemption used in this way therefore puts pressure on the majority to decide on what it will not compromise to the minority. This is what the Board was pressed to do. It is showing just how committed it is to this type of instruction. Public schools have long served the function of foundational civic formation in this country, of assimilation of the plural mass into the core creeds of the American polity. It may be that in this case, the Board just pushed its creeds too far (or perhaps too fast?), and when it was met with resistance, it dug in. Indeed, Mahmoud v. Taylor sits against the backdrop of a public-school establishment that is now losing some of its footing to a new educational movement, school choice.  

The dynamic of exemption in controversies like these illustrates what I have described as the continuum of free exercise, disestablishment, and establishment. That continuum might be represented in a four-stage narrative cycle.  

In the first stage, the establishment is firm and entrenched. Dissent from it is only possible through limited and disconnected exemptions that pose no threat at all to the settled way of doing things. In fact, exemption at this point looks like an act of liberal generosity by the ruling power, whose control may be strengthened by it. 

In the second stage, the establishment experiences some fragmentation, and the majority provisionally accepts several different accounts of its fundamental commitments and orthodoxies. It pluralizes to negotiate deepening difference. Exemption begins to be used not merely as an individuated opt-out, but as a more direct challenge to the establishment, or to features of it, revealing fissures and generating more organized pockets of disestablishmentarian resistance. 

In the third stage, certain new disestablishmentarian programs achieve greater strength, and exemption is supplemented by other organizational strategies. Features of the old establishment are gradually supplanted in law and policy. It is generally at this comparatively advanced stage that institutions like the Supreme Court involve themselves in dismantling the old establishment to make space for what will come next.  

In the fourth stage, one or more of the ascendant disestablishments starts to gain traction as a new establishment and tests its own reach into the political structure. The cycle begins again.  

The matter is contestable, of course, but it seems we have reached something in the range of the second and third stages in both Mahmoud and one of the other law and religion cases that was before the Court involving religious charter schools. In that case, Oklahoma Statewide Charter School Board v. Drummond, the Court recently deadlocked 4-4, resulting in the public school establishment’s default victory because it had prevailed in the lower courts. Yet the equipoise of the justices on the merits (Justice Barrett had recused herself) suggests that all of these disputes, together with the rising school choice movement, reflect new and interesting disruptions to the prevailing system of general education in this country.  

Whether one thinks those disruptions are good or bad is, as I have said, a different matter. But thinking through the relationship of exemption to political establishment is worthwhile apart from the result in any given case, especially for those of us who are both religious believers and American citizens.

Image licensed via Adobe Stock.