Journal of Markets & Morality

Volume 21, Number 1 (Spring 2018): 23–48

Copyright © 2018

The Religious Wars

in Twenty-First- John C. Eastman
Fowler School of Law
Century America Chapman University

Many faith communities are sincerely pro-life and believe in traditional marriage as
the union of one man and one woman. Federal, state, and local governments have
responded to religious beliefs deemed out of line by regulating religious exercise.
The result for an increasing number of Americans is Thomas More’s dilemma of
conscience. No longer is it obvious that the Constitution will protect against these
conflicts. This article aims to explore these issues. In part 1, I describe the current
conflict between sexual liberty and religious exercise and explore how public
accommodations laws have been expanded well beyond their common-law roots. In
part 2, I review how Employment Division v. Smith has drastically undermined the
original freedom of conscience protections that prevailed at the time of the found-
ing. Finally, I examine Stormans, Inc. v. Wiesman as a case study of the conflict
between sexual expression-based government mandates and freedom of conscience.

In my opinion the conscientious scruples of all men should be

treated with great delicacy and tenderness; and it is my wish and
desire, that the laws may always be as extensively accommodated
to them.
— George Washington1

The phrases “religious liberty” and “religious freedom” will stand

for nothing except hypocrisy so long as they remain code words
for discrimination, intolerance, racism, sexism, homophobia,
Islamophobia, Christian supremacy or any form of intolerance.
— Martin R. Castro2

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Introduction
“We are a religious people, whose institutions presuppose a supreme being.” That
language, from Justice Douglas’s opinion for the Court in Zorach v. Clausen,3
is increasingly at odds with the modern state and its expansive understanding
of public accommodations and antidiscrimination law. Indeed, as government
has expanded to fill in much of the space previously occupied by the private
realm, including the private religious realm, tension between religious exercise
and government mandates has increased to the point that one or the other must
retreat. Government mandates that private employers provide abortifacient
drugs (in contravention of their sincerely held religious beliefs) or be subjected
to crippling fines,4 demands that private pharmacists stock and sell such drugs
or be barred from conducting business,5 and prosecutions for violating various
public accommodation laws for refusing to participate in same-sex “marriage”
ceremonies,6 all have pitted the force of government against the foundational
right to live according to one’s own religious faith, not just in one’s church,
synagogue, or mosque, but also in public.
It is that last piece—the public manifestation of religion—that gives rise to
such consternation in twenty-first century America. Indeed, resolving disputes
between religious liberty and government, or between religious liberty and a
slew of private claims, would be an easy matter if religion were merely “some
purely personal avocation that can be indulged entirely in secret, like pornogra-
phy, in the privacy of one’s room,” as the late Justice Antonin Scalia famously
wrote with his characteristic flare in dissent from the school graduation prayer
case, Lee v. Weisman.7 But as Justice Scalia recognized, religion “is not that
[for most believers], and has never been. Religious men and women of almost
all denominations have felt it necessary to acknowledge and beseech God’s
blessings as a people and not just as individuals”—to live in accordance with
their understanding of God’s will in their public lives—their businesses, their
charitable activities, their speech, their interactions with neighbors and fellow
citizens, the marketplace and the public square—and not just behind the curtains
of home, church, synagogue, mosque, and temple.
The guarantee of the freedom of conscience was not a tangential or disposable
element of the American founding, but a necessary corollary to the self-evident
truths of the Declaration. “Almighty God hath created the mind free,” wrote
Thomas Jefferson in his Statute on Religious Freedom, and hence “all attempts
to influence it by temporal punishment or burthens, or by civil incapacitations …
are a departure from the plan of the Holy author of our religion.”8 But the duties
one owes to the Creator extend beyond mere belief; they include the exercise of

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religion as well, in accordance with those faith tenets. To name but three, drawn
from the predominant Judeo-Christian tradition: Keep the Commandments (which
both require certain conduct and forbid other conduct); do not be complicit in
sin; and seek to dissuade others from sin.
This “free exercise” was not at all in tension with the requirement, in the
federal Constitution, that Congress make no law respecting an establishment of
religion. To exempt religious dissenters from majoritarian imposition was instead
seen as a form of toleration of difference, the opposite of an establishment. In
the religious milieu of the early Republic, there were not often calls for religious
accommodation because there were rarely conflicts between the legislative
demands of a largely Protestant Christian democracy and a largely Protestant
Christian population. The most common examples were religious conscientious
objection from military service, the confidentiality of the Catholic confessional,
objections to oath requirements and jury service, and adherence to a different
day of Sabbath. All these gave rise either to legislative accommodation or to
court cases (or both).
The expansion of government at every level, but particularly at the federal
level, in the wake of the Great Depression and its New Deal response all but
guaranteed that there would be far more numerous points of conflict between
religion and religiously scrupulous individuals in the twentieth and twenty-first
centuries. The rights revolution of the 1960s, which morphed the basic understand-
ing of a liberty rooted in natural law into judicially crafted notions of “privacy,”9
of “dignity,”10 and even “the right to define one’s own concept of existence,
of meaning, of the universe, and of the mystery of human life,”11 likewise all
but guaranteed that those of traditional religious and moral views would find
themselves at odds with evolving social views, or at least the evolving social
views of a majority of the Supreme Court. And the massive expansion of public
accommodation laws, which has effectively obliterated the distinction between
public and private, between discriminatory state action and selectivity by private
individuals, has placed those who would exercise their religious beliefs in their
public lives on a collision course with the demands of the expanded state and
the dignitary claims of modern culture.
Two examples from the Judeo-Christian tradition bring the problem into stark
relief. The first is the command not to be complicit in the wrongdoing of others.
Section 1868 of the Catechism of the Catholic Church, for example, provides:
“We have a responsibility for the sins committed by others when we cooper-
ate in them: by participating directly and voluntarily in them; [or] by ordering,
advising, praising, or approving them.…”12 Second is the command to attempt

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to dissuade others from their wrongdoing. This, from the Jewish prophet Ezekiel
as recounted in the Old Testament:
If I tell the wicked, “O wicked one, you shall surely die,” and you do not speak
out to dissuade the wicked from his ways, the wicked shall die for his guilt, but
I will hold you responsible for his death. But if you warn the wicked, trying
to turn him from his way, and he refuses to turn from his way, he shall die for
his guilt, but you shall save yourself.13

As government has expanded to operate in and fund activities in the social welfare
space previously occupied largely by religious organizations, conflicts between
government mandates and religious doctrine became inevitable. Must a church
that manages a homeless shelter agree not to advocate its religious message to
those who are beneficiaries of its charitable efforts as a condition on receipt of
generally available federal funding of a portion of the shelter’s costs? Must it
ignore its own religious doctrine about marriage, and its own prohibition against
complicity, if it wishes to continue to provide adoption services, in the face of
government mandates that it provide those services to unmarried or same-sex
couples? Must those who are “religiously scrupulous,” to use a phrase common
at the time of the founding,14 be required to provide services that are contrary to
their religious faith as a condition of operating a business—or, in other words,
as a condition on earning a living?
To be sure, conscientious objection to laws that make a citizen do something
he is under obligation not to do is as old as the Republic. Indeed, when claims
for free exercise protection came from military draft objectors, non-Christian
sects that employ controlled substances as part of their sacramental practices, or
other self-evidently minority positions, liberals (even more than conservatives)
could champion the cause of religious liberty. But changes in American culture
may require a more vigorous defense of religious conscience in free exercise
claims. Increasingly, the dissenters in America are adherents to traditional faiths
at odds with the progressive norms of a secularized society. The expansions of
government, of sexual “liberty,” and of public accommodations law have all
played large roles in creating the modern irreconcilable conflict between sexual
liberty and religious exercise, to the point that, today, governmental and cultural
authorities increasingly classify religious exercise as a threat to human rights,
particularly in connection with matters surrounding human sexuality.
Many faith communities sincerely believe in protecting human life from con-
ception to natural death and in limiting marriage to the union of one man and one
woman. The mainstream left and media elite caricature religionists of this sort as
bigots on the “wrong side of history.” Federal, state, and local governments have

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responded to religious beliefs deemed out of line with the prevailing philosophy
on human sexuality by regulating religious exercise. Governments either adopt
restrictive interpretations of the liberty of conscience to protect only beliefs and
not actions, or impose facially neutral legal requirements that religiously moti-
vated businesses and individuals cannot obey in good conscience, such that they
are forced to leave the marketplace and civic sphere. The result for an increasing
number of Americans is the frightening recapitulation of Thomas More’s dilemma
of conscience. Will they obey their conscience or bow to the force of the state?
No longer is it obvious that the Constitution will protect against these conflicts.
This essay aims to explore these issues. In part 1, I describe the current
conflict between sexual liberty and religious exercise, driven by the twin narra-
tive that unrestricted sexual expression is a fundamental good, and that highly
accessible birth control and abortion are essential human rights for women. I
then explore how public accommodations laws have been expanded well beyond
their common-law roots to advance the modern sexual rights agenda. In part 2,
I review the understanding of the freedom of conscience that prevailed at the
time of the founding, noting how the Supreme Court’s decision in Employment
Division v. Smith has drastically undermined the original protections. Finally,
I examine the Ninth Circuit’s decision in Stormans, Inc. v. Wiesman as a case
study of the conflict between the sexual expression-based government mandates
and the freedom of religious conscience.

The Modern Conflict between the Sexual Revolution

Laws and Religious Exercise
The Expansion of Sexual Liberty
Many tests of religious conscience today arise in response to claims of unre-
stricted sexuality, facilitated by unlimited access to birth control and abortion.
The twin narrative is that complete sexual license is a fundamental good, and that
highly accessible birth control, sterilization, and abortion are therefore essential
human rights. The rhetoric of sexual liberation, essentially a claim of negative
liberty from state regulation, is combined with a rhetoric of sex discrimination, in
which the different biological circumstances of men and women are treated as a
question of equal protection of the laws—with the dirty little secret that the same
nostrums of abortion and birth control that are trumpeted as women’s issues also
liberate men from the traditional demands placed on them by the consequences of
sexual activity. As Catherine MacKinnon has trenchantly observed, “The avail-
ability of abortion … removes the one remaining legitimized reason that women

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have had for refusing sex besides the headache.”15 That laws protecting abortion
are favored by men as much as by women16 does not seem to detract from the
narrative that abortion restrictions are a form of male domination over women.
Most recently the conflict between religious exercise and sexual freedom
crystallized when the United States Department of Health and Human Services
(HHS) issued the “birth control” mandate purportedly17 pursuant to the Patient
Protection and Affordable Care Act.18 That mandate required employers, including
most religiously affiliated institutions (such as the University of Notre Dame and
the Little Sisters of the Poor) and businesses operated by religiously scrupulous
individuals (such as Hobby Lobby Stores, Inc.), to buy insurance for services
that violate the conscience of the religious organizations or the business owners.
The controversial mandate resulted in Supreme Court review of more than a half-
dozen cases, and it further sparked a national debate about religious freedom and
the importance of highly accessible birth control, sterilization, and abortion to
women’s freedom and equality.
My purpose here is not to revisit comprehensively the legal claims at issue in
those cases, but rather to note that the mandate demonstrates that the old détente
in place largely since Roe v. Wade was decided in 1973—legal availability of
abortion and contraceptives but without taxpayer support or other compulsion
that would violate rights of conscience—no longer prevails. The hostility between
“pro-life” and “pro-choice” Americans has instead become even more intense,
in part because the focus is no longer about legalization, but about women’s
unrestricted access, including access facilitated or funded by those with profound
moral/religious objections. In the minds of the secular feminists and politicians
who shape public language on women’s issues, anyone who objects to facilitating
the use of the drugs and devices that enable women’s unfettered sexual expres-
sion is waging a “war on women,”19 part of a historical pattern of men exerting
control over women’s lives.20
The Obama administration argued in Burwell v. Hobby Lobby Stores, Inc.
that it wanted to ensure that all women have access to all FDA-approved con-
traceptives, and thereby help women avoid unplanned pregnancies.21 The Hobby
Lobby Court did not decide whether stopping unintended pregnancies was a
governmental interest compelling enough to force businesses to cover birth
control, sterilization, and abortion-drugs for their employees. Rather, it assumed
a compelling interest, and then decided the case on the grounds that the govern-
ment’s mandate was not narrowly tailored to achieve that interest. There were
certainly other means available to the government that did not involve forcing
religious organizations to be complicit in the provision of contraceptives and
abortifacient drugs. Nevertheless, the federal government continued for years

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to attempt to force religiously scrupulous businesses and organizations, even

including a religious order of nuns, to facilitate the provision of birth control and
abortion drugs against their religious conscience.22 With nonconscience-burdening
alternatives readily available, one has to question HHS’s motives.
The short explanation lies in what Professor Gerard Bradley has called the
ideology of “equal sexual liberty.”23 Equal sexual liberty, or “sexualityism,” holds
that “the expression of human sexuality is in and of itself a positive good and
limitations on that expression are in and of themselves bad.”24 Sexualityism no
longer requires eugenicists like Margaret Sanger or population bomb theorists
to justify unlimited access to birth control and abortion on the basis of dubious
social utilitarian calculus. Instead, contraceptive care is simply “good for women,
full stop,”25 and a part of an “emerging public orthodoxy about where sexual
satisfaction, expression, and identity fit into the good life.”26 From a legal point
of view, the novel characteristic of this claim is that it is no longer about liberty
from state regulation: access to contraceptives and abortion have become posi-
tive rights to government assistance, and—more troublingly—to governmental
assistance to overcome private conscientious objection.
This marks a contrast with the older freedoms of speech and religion. These
were rights against government regulation and restriction. They were not rights to
government assistance, and they entailed no protection from private disapproval
or opposition. The freedom of speech did not give anyone the right to compel
other citizens to assist. Indeed, there is a constitutional right not to be compelled to
support private speech with which we disagree—and it would be a plain violation
of both free exercise and disestablishment to coerce a person, by force of law, to
provide personal services in connection with a religious ceremony. By contrast,
advocates of the new sexual freedoms think it necessary for the government to
pay for the costs of their exercise (through taxation on everyone, including moral
dissenters) and, through the invocation of antidiscrimination laws, to dragoon
other citizens into acts that support or condone these exercises.
Accordingly, the compelling governmental interest behind the HHS mandate is
expanding equal sexual liberty by “allowing women (and men) to engage in sexual
activity free of the biological consequences of sexual activity.”27 The mandate
“presupposes that women will and should have lots more sexual intercourse than
they have interest in conceiving children … [and that] sexual license should never
impede a woman’s lifestyle, at least no more than it does a man’s.”28 The HHS
mandate is thus the most extreme example of the government’s view that birth
control unquestionably contributes to women’s freedom and equality, which it
“understands to include at the very least nonmarital and nonprocreative sexual
expression.”29 Those who adhere to different views, particularly views rooted

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in religious belief, therefore present a threat to women’s freedom and equality

that cannot be countenanced.
Since Roe v. Wade was decided nearly a half-century ago, the law has vaulted
sexual liberty over religious conscience claims by giving certain forms of sexual
expression constitutional status30 while at the same time watering down the
Constitution’s protection for religious liberty. In Planned Parenthood v. Casey,
for example, Justices O’Connor, Kennedy, and Souter embraced a far-fetched
understanding that the essence of the American experiment lies in the claim
that “[a]t the heart of liberty is the right to define one’s concept of existence, of
meaning, of the universe, and of the mystery of human life.”31 The Casey Court
transformed an individual’s interest in sexual liberty into “a positive responsibil-
ity [of government] to ensure that everyone has the ability to engage in sexual
conduct without cost or consequences, whether in money, unwanted children, or
hurt feelings.”32 Under the flawed logic of the claim that sexual liberty is among
the weightiest of American rights, any opposition to contraception and abortion
is now deemed hostility to women. As Professor Helen Alvaré has persuasively
argued, “if this is the constitutional definition of freedom where sex is concerned
… [i]t is a definition that makes it unthinkable to suggest that access to, or even
government funding for, birth control or even abortion could be reduced or
eliminated without violating an essential freedom.”33

The Expansion of the Law of Public Accommodations

Nearly two decades ago, the Supreme Court noted in Boy Scouts v. Dale 34
that public accommodations laws, which “were originally enacted to prevent
discrimination in traditional places of public accommodation—like inns and
trains,” have, “[o]ver time,” “expanded to cover more places,” including virtually
all business establishments and services and even private membership organiza-
tions. Indeed, the modern view reflects a significant departure from the narrow
rule developed in the English common law, which imposed a duty to serve all
members of the public only on certain businesses, like inns, that effectively
operated pursuant to a monopoly license from the king or because of some
natural monopoly or scarcity.35 Early American law largely adopted the English
common law, treating only a narrow class of businesses—innkeepers, theaters,
and common carriers such as railroads—as public accommodations obligated to
serve the public without unreasonable discrimination.36 As recently as 1964, the
Civil Rights Act proscribed discrimination on the ground of race, color, religion,
sex, or national origin in places of public accommodation, but the definition of
“public accommodation” remained narrowly tailored to hotels, restaurants, and
entertainment spaces like theaters and sports arenas.37

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Public accommodations laws in the states are no longer narrowly confined to

such truly “public” accommodations, however. Rather, they have been expanded
to cover virtually every privately owned business and even many private member-
ship organizations. This produces exactly the conflict that the Court anticipated
in the Dale case, when it recognized that “the potential for conflict between state
public accommodations laws and the First Amendment rights of organizations has
increased.” What was true even then has become a significant understatement now.
Indeed, religiously motivated private businesses and individuals, usually
Christians, are increasingly subjected to laws and regulations that impose on them
views of sex and marriage in areas like healthcare, education, and commercial
services that are directly contrary to their own religious views. Lower courts
applying Employment Division v. Smith’s rational basis standard of review38 to
“generally applicable” laws have regularly rejected free exercise challenges to
public accommodations laws that bar “discrimination” on the basis of sexual
status claims inherently tied to conduct that the religiously scrupulous business
owner finds morally and religiously objectionable. The continuing vitality of
religious conscience claims based on free exercise defenses therefore depends
on confronting the implicit first order discrimination by government against the
religiously scrupulous39 as government seeks to extend the reach of antidiscrimi-
nation principles to private actors dealing with a wide range of social issues.
Nearly half the states today have public accommodation laws that bar dis-
crimination on the basis of sexual orientation or gender identity,40 and as the
case of Masterpiece Cakeshop v. Colorado Human Rights Commission demon-
strates, those laws are being interpreted to reach far more broadly than the old
lunch counter denial-of-service context in which they originated. Jack Phillips,
the religious owner of Masterpiece Cakeshop (who named his company after
a passage from Ephesians41), regularly served customers whom he knew to be
homosexual. But he did decline to deploy his significant artistic talents for the
celebration of a same-sex wedding, just as he has routinely declined to utilize
his talents for the celebration of witchcraft and other occult ideas associated with
Halloween, or for the celebration of divorce.
That distinction is significant, but because it is likely clouded by the intensity
of feelings on either side of the underlying social issue, perhaps considering the
distinction in another context would be helpful. Imagine an African-American
owner of a Kinko’s print shop who, because of this country’s history of racism,
has an animosity toward whites. The public accommodations laws, traditionally
understood (as expanded to cover virtually all business establishments), prohibit
the shop owner from refusing to allow whites into his store to make photocopies.
That’s the lunch counter denial-of-service scenario. But those same laws do

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not—or at least, should not—obligate the shop owner to design a racist flyer
advertising an upcoming white supremacist rally. The latter is a threat to the shop
owner’s liberty different in kind from the lunch counter denial-of-service scenario.
It is compelled speech that runs directly contrary to the shop owner’s own views,
just as the interpretation of Colorado’s public accommodations law to require
Jack Phillips to design a cake celebrating a same-sex wedding compelled him
to engage in expressive activity contrary to his own views and religious beliefs.
As previously noted, lower courts applying Smith have been unwilling (or
unable) to protect private business owners who wish to operate their businesses
according to their religious beliefs, when those beliefs come into conflict with
broadly interpreted antidiscrimination mandates. The conflict is viewed as a
zero-sum game, and despite the fact that the religious liberty claim is rooted
in constitutional text, the statute-based mandates have, in most cases, been
given priority on the ground that they further the state’s interest in eradicating
discrimination in private commercial affairs. This is particularly true in states,
such as Colorado, that do not have the heightened scrutiny protections of a state
religious freedom restoration act (RFRA), but it has also proved to be true even
in states that do, for the state’s interest is said to be “compelling,”42 or the state
RFRA is said to be applicable only when the government is a party, not merely
when the government is enforcing a private suit.43
The result turns the state action doctrine of the Fourteenth Amendment on its
head. The prohibition on the denial of equal protection contained in that amend-
ment applies to governmental actors, not private citizens. But as the equal protec-
tion idea has been extended to private actors by way of broad, antidiscrimination
mandates in public accommodations laws, facially neutral legal requirements
imposed by the state, when applied to religious businesses, have resulted in the
state itself engaging in antireligious discrimination. In short, given the state-
action commands of the Fourteenth Amendment, the real question is whether the
state’s first-order discrimination against religiously owned businesses implicates
a less compelling interest than eradicating the second-order “discrimination” by
private parties acting in accord with their religious obligations. At least absent
a monopoly situation where there may be an extraordinary need for the private
business to provide all goods and services to everyone, forbidding the free choice
of private, religiously scrupulous business owners to determine which services
they will provide can be a significant infringement on religious liberty. Phrased
differently, legal requirements compelling bakers, florists, or photographers to
participate in same-sex weddings, or pharmacists to stock abortifacients, should
be viewed as a much greater, and state-imposed, imposition on the shop owners’
liberty to practice their religion than the relatively minor, and purely privately

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imposed, inconvenience to others who would have to look elsewhere to obtain

the products or services they desire, or even on the harm caused to their dignity
arising out of the knowledge that the religiously scrupulous owner disapproves
of their conduct—the expression of which is constitutionally protected. In short,
there can be no compelling interest when the government must discriminate
against private expressions of religious liberty in order to end conduct-based
distinctions made by private religious actors merely because the conduct is tied
to claims of status. The first-order discrimination by government against reli-
gious business owners violates the Fourteenth Amendment’s command of equal
protection; selectivity by private business owners in deciding which ceremonies
and conduct to support with their business services does not.

The Founding Generation’s Understanding

of the Preferred Place for Religious Exercise
The elevation of sexual expression to the status of fundamental right, combined
with the expansion of public accommodations law, thus threatens the security
of religious freedom. Protecting religious exercise, or the liberty of conscience,
is controversial today to such an extent that citizens and policy makers think
religious objectors are zealots, hostile particularly to women’s freedom and
to homosexual behavior and identity. The statement by the Chairman of the
United States Commission on Civil Rights that the phrases “religious liberty”
and “religious freedom” have become “code words” for discrimination shows
how derogatorily modern culture views claims rooted in religious conscience.44
Some academics have even questioned the long-standing precedence given
to religious freedom, and argued for the end of accommodations.45 However,
religious exercise should take priority over sexual liberty and antidiscrimination
principles not only because it was written into the text of the First Amendment of
our Bill of Rights, but more profoundly because it reflects the most fundamental
commitment of a liberal republic: to respect each individual’s own understanding
of his or her relation to the Creator under the natural law.46 Religious exercise is
accommodated because the founders recognized that the higher duty individuals
owe to the Creator, or “religion” in the constitutional sense, necessarily trumped
one’s duties to the state.47 Religious conscience properly understood under the
natural law48 is of greater import than sexual expression, autonomy, or behavior,
for example.49 Simply put, “[c]onscience has rights because it has duties.”50
Perhaps this is controversial. Some may regard elements of sexual identity
as equally important to what they may regard, from a secular perspective, as
elements of religious identity. It is hard to know how a diverse culture would

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resolve such disagreements. But anyone committed to the primacy of individual

liberty should be able to agree that it is more important for a person to be free
to live in accordance with conscience than to be able to force others to agree,
or to assist. It is no more appropriate to require religious dissenters to lend their
creative talents to a same-sex wedding ceremony, or a nurse or doctor to be forced
to perform what they may regard as the taking of an innocent life, than it would
be to require an atheist or agnostic to lend their talents to a worship service.
The religion clauses alone are not directly dispositive of whether religious
conscience claims should be exempted from generally applicable laws. The lan-
guage of the First Amendment’s religion clauses sets out only the outer bounds
of proper federal governmental action, not of state governmental action, so state
constitutional provisions would be better evidence for the latter. But we can gain
some insight by considering the text of the religion clauses and the debates on
these clauses, together with “the sense attached to it by the people in their respec-
tive State Conventions, where it received all the authority which it possesses.”51
Moreover, there is fairly compelling evidence from the founding period that the
founding generation recognized the preferred place for religious exercise, and
that religious conscience deserves deference and special constitutional treat-
ment, including the right to exemptions from generally applicable laws, Justice
Scalia’s opinion for the Court in Employment Division v. Smith notwithstanding.

Religious Exemptions Are Consistent with the

Founding Generation’s Understanding
of Religious Exercise
Background

The founders likely intended religious conscience to be broadly pro-

tected to avoid religious persecutions.
The debate over liberty of conscience in America took place against a backdrop
of two centuries of religious conflicts in the wake of the Protestant Reformation.
The Reformation and the subsequent history of religious persecution and warfare
thus shaped the American experiment in religious freedom before the religion
clauses were ever debated in the First Congress in 1789. The Reformation split
Western Europe into competing religious and political groups, producing a
system of religious pluralism that resulted in serious persecution and warfare.52
These civil and international religious wars continued for two hundred years
because some groups resisted, or only reluctantly tolerated, dissenters from the
dominant religion.53 In one exceptional case, however, Dutch revolutionaries

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in the sixteenth century established a confederate government with religious

freedom. When the war with Spain concluded, all seven Dutch provinces ratified
constitutions with religious tolerance provisions. In this way, the Netherlands
became a safe harbor for religious dissenters in Europe and a legal precedent and
constitutional example for the United States that James Madison later believed
showed that acceptance of dissenters was “safe, and even useful.”54
The New World of colonial America was both a frontier for European religious
establishments and a safe haven for European dissenters fleeing religious oppres-
sion. The “checkerboard” of rival religious groups in Europe was in part projected
onto colonial America, and some of the religious conflicts from Europe were
transferred here.55 But despite some prosecutions of dissenting views—relatively
minor in comparison to what had occurred in Europe—toleration of dissenters
from the dominant religion was a principle commonly embraced by the American
colonialists and then the Founders.56 Due to “recurring occasions of interaction
and cooperation among citizens of different faiths—in economic associations, in
politics, in the revolutionary struggle itself,” there were ample opportunities and
incentives to subscribe to tolerance during the founding era.57 There was simply
“no significant sentiment of persecution among the Founders.”58 Given that the
post-Reformation wars over religion were so recent and salient in the memories
of the Founders, it follows that they drafted the religion clauses to avoid repeat-
ing those bloody conflicts. James Madison reminded his contemporaries in his
Memorial and Remonstrance that “the forbearance of our laws to intermeddle
with Religion” had produced “moderation and harmony” among the sects in
sharp contrast to the old world, where so much blood was spilt trying to eradicate
religious conflicts by proscribing all religious differences.59
To the extent that we can infer from this history and tradition the intention
of the Founders to avoid religious persecution in America, Professor Douglas
Laycock identifies an important lesson of the post-Reformation religious wars that
is still true today: some people will die for their faith, and others will slaughter
for it.60 This lesson is relevant not only to the original meaning of free exercise,
but it also reinforces the importance of securing the ability of modern Americans
to live harmoniously in their daily lives under the original understanding of the
protections afforded by the free exercise clause.

James Madison defended the importance of strong protections for

religious exercise as derived from a preexisting and paramount obli-
gation to the Creator.
James Madison’s famous attack on Patrick Henry’s general assessment bill,
Memorial and Remonstrance, defended the importance of strong free exercise pro-
tections, and articulated the principal religious argument for the right to exemptions

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from laws that would unduly burden religious conscience. The Memorial and
Remonstrance operated on the theory that religious freedom was a natural right
that civil society could not properly invade.
Madison defined religion as “the duty [that] we owe to our Creator.”61 Because
beliefs cannot be coerced, the “[r]eligion … of every man must be left to the
conviction and conscience of every man; and it is the right of every man to
exercise it, as these may dictate.”62 Madison wrote that liberty of conscience is
inalienable by its nature because one’s opinions “cannot follow the dictates of
other men,” and it involves “a duty towards the Creator.”63 Implicitly articulating
the notion of inalienable rights in the Declaration of Independence, he continued:
“This duty [towards the Creator] is precedent both in order of time and in degree
of obligation, to the claims of Civil Society” and “therefore that in matters of
Religion, no man’s right is abridged by the institution of Civil Society, and that
Religion is wholly exempt from its cognizance.”64
The right of free exercise, Madison proposed, precedes government and is
superior to the social contract of legitimate civil society. Although these salient
passages from Memorial and Remonstrance do not definitely prove that Madison
supported religious exemptions, as Professor Michael McConnell has pointed
out, they do indicate that Madison’s approach toward liberty of conscience was
“consonant with them.” 65 Justice O’Connor made the same point in her dissent
in City of Boerne v. Flores: “Madison did not say that duties to the Creator are
precedent only to those laws specifically directed at religion, nor did he strive
simply to prevent deliberate acts of persecution or discrimination. The idea that
civil obligations are subordinate to religious duty is consonant with the notion
that government must accommodate, where possible, those religious practices
that conflict with civil law.”66 Importantly, because conscience properly under-
stood entails obligations to God, the consequence of refusing to exempt religious
believers from even facially benign laws would be to unjustly require them to
“sin and incur divine wrath.”67

The record of the First Congress sheds light on the question of reli-
gious exemptions from generally applicable laws.
The record of the First Congress, though relatively sparse on discussion of the
religion clauses, suggests that a majority of the House of Representatives also
recognized the need for and favored exemptions for religious conscience. There
were actually three different proposals dealing with religion that were considered
and approved by the House. The first, originally designed by James Madison to
be inserted into Article I, Section 9 of the Constitution (which is where prohibi-
tions on the federal government are found) contained an establishment clause
idea, a free exercise idea, and a freedom of conscience idea:

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The civil rights of none shall be abridged on account of religious belief or

worship, nor shall any national religion be established, nor shall the full and
equal rights of conscience be in any manner, or on any pretext, infringed.

The second, also to be inserted in Section 9, was a conscientious objector clause

attached to what became the Second Amendment:
The right of the people to keep and bear arms shall not be infringed; a well
armed and well regulated militia being the best security for a free country: but
no person religiously scrupulous of bearing arms shall be compelled to render
military service in person.

And the third, which Madison proposed to be inserted in Article I, Section 10

(which is where prohibitions on state governments are located), also contained a
freedom of conscience idea: “No State shall violate the equal rights of conscience,
or the freedom of the press, or the trial by jury in criminal cases.68
Madison’s proposals were referred to a select committee of eleven, consisting
of one member from each state attending the convention (including Madison
himself). The committee then consolidated the various proposals in a report to the
full house. That report merged the three parts of Madison’s first religion clause
proposal into two parts (thereby effectively recognizing that the free exercise and
freedom of conscience ideas were redundant): “No religion shall be established
by law, nor shall the equal rights of conscience be infringed.”
That proposal drew some concern that it was not protective enough of religion,
but for present purposes, the key points were made by Representatives Daniel
Carroll and Madison. The records describe Carroll’s view: “As the rights of con-
science are, in their nature, of peculiar delicacy, and will little bear the gentlest
touch of governmental hand; and as many sects have concurred in opinion that
they are not well secured under the present constitution, he said he was much
in favor of adopting the words.” And Madison explained what he understood
the words to mean:
that Congress should not establish a religion, and enforce the legal observation
of it by law, nor compel men to worship God in any manner contrary to their
conscience. Whether the words are necessary or not, he did not mean to say,
but they had been required by some of the State Conventions, who seemed to
entertain an opinion that under the clause of the Constitution, which gave power
to Congress to make all laws necessary and proper to carry into execution the
Constitution, and the laws made under it, enabled them to make laws of such
a nature as might infringe the rights of conscience and establish a national
religion; to prevent these effects he presumed the amendment was intended,
and he thought it as well expressed as the nature of the language would admit.

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 John C. Eastman

That last part of Madison’s speech—the concern that Congress might, under
the Necessary and Proper Clause, “make laws of such a nature as might infringe
the rights of conscience”—strongly indicates that Madison believed the proposal
would require exemption from such laws.
Even more light was shed on the issue of exemptions for conscientious reli-
gious belief during debate over the proposal that eventually became the Second
Amendment. The report from the Committee of Eleven had retained the consci-
entious objector portion of the language originally proposed by Madison: “but
no person religiously scrupulous shall be compelled to bear arms.”69 One of the
objections to the clause was that, absent the requirement that the religious objector
“pa[y] an equivalent,” it would allow some religious objectors to avoid sharing
in the burdens of the common defense, but even in the face of such a compelling
interest (to use the modern formulation), Roger Sherman noted that the proposed
alteration would not be a sufficient accommodation for the religious duty: “It is
well known,” he said, “that those who are religiously scrupulous of bearing arms,
are equally scrupulous of getting substitutes or paying an equivalent. Many of
them would rather die than do either one or the other.”70
In response, Representative Egbert Benson proposed to delete the conscientious
objector provision altogether, contending (in language that mirrors the position
taken by Justice Scalia in Employment Division v. Smith two centuries later) that
“No man can claim this indulgence of right. It may be a religious persuasion,
but it is no natural right, and therefore ought to be left to the discretion of the
Government.” Benson’s motion to delete the clause was defeated, however.71
Another attempt was then made to delete the conscientious objector clause
a few days later, but Rep. Elias Boudinot made a strong defense of the clause,
on the ground of both expedience (“Can any dependence … be placed in men
who are conscientious in this regard?”) and principle (“What justice can there be
in compelling them to bear arms, when, according to their religious principles,
they would rather die than use them?”). He then made a heartfelt plea: “I hope
that in establishing this Government, we may show the world that proper care
is taken that the Government may not interfere with the religious sentiments of
any person.” The clause then passed, after a further addition of the words “in
person.”72 The religious conscience clause limiting the states (which Madison
had originally proposed to include in Article I, Section 10) was also approved
by the House and sent to the Senate for its consideration.
The Senate then consolidated the various parts of the first proposal, bringing
the conscience language under the “free exercise” terminology that eventually
became the First Amendment. It also dropped the conscientious objector clause
from the Second Amendment, and dropped any of the restrictions that were to

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be imposed on the states (likely because, one might reasonably surmise, such
restrictions were more appropriate for state constitutions). The Annals of Congress
do not record the substance of those debates, however, so we do not know why
the Senate made these alterations. What we do know is that the House acceded
to the Senate’s amendments without further discussion.73 In light of the strong
arguments that originally carried the day in the House in favor of the conscientious
objector clause, it is fair to assume that members of the House had either come
to accept the idea, first suggested by Roger Sherman, that such a clause was not
necessary because “[W]e do not live under an arbitrary Government,”74 or that
the matter was adequately protected by the Senate’s “free exercise” language.75
Either way, the extant discussion “strongly suggests that the general idea of free
exercise exemptions was part of the legal culture.”76

The state constitutions included the unalienable right to conscience;

some of them explicitly required religious exemptions.
All the early state constitutions included provisions for the liberty of con-
science.77 The constitutions of Delaware and Pennsylvania, for example, stated
that “all men have a natural and unalienable right to worship God Almighty
according to the dictates of their own consciences.”78 In every state, the citizens
decided that the government had no power to prohibit any peaceful religious
practice, although these often contained the pragmatic Jeffersonian caveat that the
government could interfere with religion when religious practices break out into
overt acts against public peace and good order.79 These provisos are important
because they challenge the Smith Court’s holding that religiously informed con-
duct (as opposed to beliefs) is not protected against neutral, generally applicable
laws. Rather, the provisos “tend to confirm that free ‘exercise’ means what it
says—that it includes conduct as well as belief.”80
Some state constitutions explicitly mandated religious conscience exemp-
tions. The constitution of New Jersey, for example, exempted any person from
paying religious taxes.81 Significantly, the religious consciences of pacifists such
as the Quakers and Mennonites were treated with great delicacy even during
the Revolutionary War period, which is to say, a time of the utmost “compelling
interest.” The Pennsylvania constitution contained typical language: “… nor can
any man who is conscientiously scrupulous of bearing arms, be justly compelled
thereto, if he will pay such equivalent.…”82 The Founders acknowledged the
Quakers’ higher duty and refused to interfere with their interpretation of the
divine command against taking human life in the absence of a very dire national
security interest, like enemy soldiers overrunning the colonies entirely.83 In light
of the foregoing, the founders’ preferred place for religion supports heightened
scrutiny directly under the free exercise clause.

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 John C. Eastman

The Case of Stormans, Inc. v. Wiesman

That original understanding was profoundly rejected by the Ninth Circuit’s
2015 decision in Stormans, Inc. v. Wiesman,84 in which that Court held that
pharmacies in the state of Washington must fill prescriptions for emergency
contraceptives, including abortifacients, even if offering the drugs for sale vio-
lates the pharmacists’ religious conscience. In June of 2016, the Supreme Court
“ominously” denied certiorari.85
The Stormans family runs their Ralph’s pharmacy in Olympia, Washington,
according to their religious beliefs. They do not stock, for example, emergency
contraceptive drugs because they are devout Christians who believe that life
begins at conception. Before 2007, they referred customers asking for abortion
drugs to another nearby pharmacy.
Once the Washington State Pharmacy Board adopted two rules mandating all
pharmacies “to deliver lawfully prescribed drugs and devices approved by the
U.S. Food and Drug Administration for restricted distribution by pharmacies,”
religious pharmacists like the Stormans were compelled to stock and sell the
morning-after pill, an emergency contraceptive drug that can sometimes prevent
the implantation of a fertilized egg, thereby causing an abortion.86 Because the
Stormans cannot in good conscience sell drugs that can cause an abortion, the
Pharmacy Board’s rules required them to violate their sincerely held religious
beliefs, or close their business. They challenged the rules as a violation of free
exercise under the First Amendment.87 The District Court in Stormans, Inc. v.
Selecky held, based on Church of Lukumi Babalu Aye v. City of Hialeah,88 that
the rules were not neutral and of general applicability, but designed to target
religious people who would refuse to dispense abortion-drugs for conscience
reasons.89 The Ninth Circuit disagreed, overruling the decision.
Stormans is a good case study because it involves the intersection of women’s
reproductive rights and the conscience rights of religious business owners.
Plainly underlying the Ninth Circuit’s reasoning is the Casey notion that no right
to emergency contraceptives shall be denied to women interested in “universe
shaping” via sex without biological consequences. The Ninth Circuit further
presumes, as has been done in the great expansion of public accommodations
law, that the antidiscrimination principle trumps religious claims in the arena of
private, commercial conduct. The Court of Appeals in Stormans rejected the idea
of allowing referrals for Plan B to accommodate religious conscience in part by
reasoning that “facilitated referrals could lead to feelings of shame in the patient
that could dissuade her from obtaining emergency contraception altogether.”90
The ACLU’s legal director even accused the Stormans of attempting to impose

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their beliefs on others and stated, “When a woman walks into a pharmacy, she
should not fear being turned away because of the religious beliefs of the owner
or the person behind the counter. Open for business means open for all. Refusing
someone service because of who they are … amounts to discrimination, plain
and simple.”91 Of course, there was no claim that the Stormans refused service
to anyone; rather, they declined to carry a particular product. Nevertheless, and
notwithstanding the harm caused by abortion-drugs to the developing life inside
the womb, the Stormans actions apparently caused a “dignity” harm to custom-
ers who wanted an abortifacient product that the Stormans could not in good
conscience carry. That was enough for the Ninth Circuit. As Professors Erwin
Chemerinsky and Michele Goodwin argued in defense of the Ninth Circuit’s
decision, “The religious views of some should not allow them to inflict injuries,
such as the denial of needed prescriptions medicines, on others.”92
Even if it were the case that a pharmacist choosing to refer a patient to another
drugstore to fulfill her Plan B prescription could cause a woman to feel shame—
a rather dubious proposition—rules requiring private business owners to carry
certain products in violation of their religious conscience “are not of the ‘cause
no harm to others’ variety that would render them legitimate.”93 But under the
modern, progressive idea of positive liberty, “the fact that the state does not
forbid the sale of a drug is taken to mean that every licensed pharmacist must
sell that drug to every consumer legally entitled to purchase it.”94 That, of course,
drastically imposes on the liberty rights of the pharmacist not to carry certain
morally objectionable products. The modern, “positive liberty” claim is therefore
irreconcilable with the older, natural-rights based claims of liberty. The state’s
mandate of the former to the detriment of the latter is therefore, at bottom, not
liberty-enhancing but authoritarian. And given the close connection of the former
claim to modern views of unfettered sexual expression, and its disconnect with
the free exercise of traditional morality tied to religion, the government will
necessarily end up targeting religious people, trampling on conscience rights at
best and eliminating them entirely at worst.
Finally, returning to the founding, it is an important matter of conscience
whether a pharmacist must comply with legal requirements to fulfill all prescrip-
tions even for an emergency contraceptive. Our nation since its founding has
given rights to conscience because, unlike a preference for a particular identity
or behavior, religious conscience entails pre-governmental, higher duties to the
Creator, which necessarily trumps any duties one owes to the state. The Stormans
District Court noted, “The right to refrain from taking human life … was first
protected in the colonial era in the context of compulsory military service.”95
Forcing the Stormans and others to facilitate what they sincerely believe is the

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 John C. Eastman

taking of human life may even be the functional equivalent of asking them to
bear arms when their religious scruples prevents them from doing so.96 Ever
since the founding, “making space for the unpopular exercise of conscience is
an American tradition, but that tradition should not be relegated to the Amish-
style enclave and isolated military conscript.”97 The principle is, and must be,
much broader than that.

Conclusion
The preceding discussion suggests that reconstituted heightened scrutiny directly
under the free exercise clause of the First Amendment is necessary to give effect
to the principle of the founding generation that “we can all share … ideas of equal
respect for all citizens’ consciences, ‘delicate’ accommodation of conscientious
scruples, and fairness to minorities who live in a majority world.”98 Yet, if the
modern conflicts between the laws of the sexual revolution and religious exer-
cise are ever to be reduced or resolved, the expansion of public accommodation
laws implicating even private conduct in commercial settings also needs to be
confronted and curbed. There is no compelling state interest that permits the
government to coerce religious people to compel their complicity in conduct
they deem to be contrary to their religious faith. “[P]rogess … not matched by
corresponding progress in man’s ethical formation … is not progress at all, but
a threat for man and for the world.”99

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Notes
1. George Washington, Letter to the Society of Quakers (13 October 1789), quoted in
William Lee Miller, The First Liberty, 221 (2003).

2. Statement of Martin R. Castro, in U.S. Commission on Civil Rights, “Peaceful

Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties”
(September 2016). Castro is Chairman of the U.S. Commission on Civil Rights.

3. Zorach v. Clauson, 343 U.S. 306, 313 (1952).

4. See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

5. See Stormans, Inc. v. Wiesman, 794 F.3d 1064 (9th Cir. 2015), cert. denied, 136 S.Ct.
2433 (June 28, 2016).

6. See, e.g., Elane Photography, LLC v. Willock, 309 P.3d 53, 76 (N.M. 2013), cert.
denied, 134 S.Ct. 1787 (April 07, 2014); Craig v. Masterpiece Cakeshop, Inc., 370
P.3d 272 (Colo. App. 2015), cert. denied sub. nom., Masterpiece Cakeshop, Inc. v.
Colorado Civil Rights Comm’n, No. 15SC738, 2016 WL 1645027 (Colo. April 25,
2016), cert. granted, 137 S.Ct. 2290 (June 26, 2017).

7. Lee v. Weisman, 505 U.S. 577, 645 (1992) (Scalia, J., dissenting).

8. A Bill for Establishing Religious Freedom (June 18, 1779), reprinted in Julian P.
Boyd, ed., The Papers of Thomas Jefferson, ed. Julian P. Boyd, vol. 2, 1777 – 18
June 1779, pp. 545–553 (Princeton: Princeton University Press, 1950).

9. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 484 (1965); Roe v. Wade, 410 U.S.
113, 153 (1973).

10. See, e.g., Lawrence v. Texas, 539 U.S. 558, 560 (2003); United States v. Windsor,
133 S. Ct. 2675, 2689 (2013); Obergefell v. Hodges, 135 S. Ct. 2584, 2597 (2015).

11. Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 851 (1992) (Joint
opinion of O’Connor, Kennedy, and Souter, Jj).

12. Catechism of the Catholic Church (Vatican City: Libreria Editrice Vaticana, 1993),
http://www.vatican.va/archive/ENG0015/_INDEX.HTM.

13. Ezekiel 3:18.

14. See, e.g., Annals of Congress 1:749.

15. Catharine MacKinnon, Roe v. Wade: A Study in Male Ideology, in Jay L. Garfield
and Patricia Hennessey, eds, Abortion: Moral and Legal Perspectives 45, 51
(Massachusetts, 1984).

43
 John C. Eastman

16. The latest Pew Research Poll, in 2017, shows support for abortion slightly higher
among women (59% vs. 55%), http://www.pewforum.org/fact-sheet/public-opinion-
on-abortion/, but in earlier decades this comparison was reversed. See, e.g., Hyman
Rodman, Betty Sarvis, and Joy Bonar Walker, The Abortion Question 142 (Columbia,
1987) (in three of four polls analyzed from 1974 to 1986, more men than women
supported abortion).

17. I have previously noted that the mandate was imposed by regulations that exceeded
the statute’s authority and that were adopted in violation of the procedural require-
ments of the Administrative Procedures Act. See John C. Eastman, No Free Lunch,
But Dinner and a Movie (and Contraceptives for Dessert)? 10 NYU J. L. & Liberty
282 (2016).

18. Patient Protection and Affordable Care Act, Pub. L. No. 111–148, 124 Stat. 119
(2010).

19. Chris Reeves, “There is a War on Women”—Planned Parenthood Mid-Missouri/

Kansas Meets to Discuss the Future, Daily Kos (Dec. 14, 2015, 4:38 PM), www.dai-
lykos.com/story/2015/12/14/1460227/--There-is-a-War-on-Women-Planned-Parent
-hood-Mid-Missouri-Kansas-Meets-to-Discuss-the-Future.

20. Helen M. Alvaré, Religious Freedom Versus Sexual Expression: A Guide 4 (Geo.
Mason Univ. Legal Stud. Res. Paper Series, No. LS 15–28, 2015), https://papers.
ssrn.com/sol3/papers.cfm?abstract_id=2668741.

21. 134 S. Ct. 2751, 2779 (2014).

22. Paige Winfield Cunningham, Trump Has Yet to Signal His Approach to Obamacare
Birth-Control Mandate (Apr. 25, 2017, 4:40 PM), https://www.washingtonpost.com/
powerpost/trump-defends-birth-control-requirement-under-obamacare/2017/04/25/
afc9d5d2-2935-11e7-b605-33413c691853_story.html?utm_term=.2ccd186767ef.

23. Gerard V. Bradley, What’s Behind the HHS Mandate?, The Public Discourse (June 5,
2012), www.thepublicdiscourse.com/2012/06/5562/.

24. Lant Pritchett, Swimming? Smoking? Solving? Intellectual History of the Population
Control Movement. PowerPoint Presentation at Population Association of America
(New Orleans, LA: April 18, 2008), available at http://www.presentica.com/ppt-pre-
sentation/swimming-smoking-solving-intellectual-history-of-the-population-control
-movement.

25. Id.

26. Bradley, supra note 23.

27. Eastman, supra note 17, at 310.

28. Bradley, supra note 23.

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29. Helen M. Alvaré, The White House and Sexualityism, The Public Discourse (July
16, 2012), www.thepublicdiscourse.com/2012/07/5757/.

30. See Alvaré, supra note 20, at 5–16.

31. Casey, 505 U.S. at 851.

32. Statement of Commissioner Peter Kirsanow, Peaceful Existence Report, supra note
2, at 44.

33. Helen M. Alvaré, Curbing Its Enthusiasm: U.S. Federal Policy and the Unitary
Family, 2 Int’l. J. Jurisprudence Fam. 107, 144 (2011).

34. Boy Scouts v. Dale, 530 U.S. 640 (2000).

35. See, e.g., Allnut v. Inglis, 12 East 527 (1810); see also Hale, De Portibus Maris, 1
Harg Tracts 78 (1670), distinguishing between ius regium (the King’s duties) and ius
publicum (the duties to serve owed by businesses “affected with a public interest”),
on the one hand, and ius privatum (private ownership with no such duties), on the
other.

36. See Alfred Avins, What Is a Place of “Public” Accommodation?, 52 Marq. L. R.

1, 2–6 (1968) (discussing the historical development of public accommodations
common law in England and the United States).

37. Civil Rights Act of 1964, Pub. L. 88–352, 78 Stat. 241 (1964) (codified as 42 U.S.C.
§ 2000a-b).

38. 494 U.S. 872, 878–79 (1990).

39. As this article was going to print, the Supreme Court did just that, in Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111 (decided June 4,
2018).

40. Non-Discrimination Laws: State by State Information, ACLU, https://www.aclu.org/

other/non-discrimination-laws-state-state-information (last visited May 4, 2017).

41. Ephesians 2:10 (“For we are God’s masterpiece. He has created us anew in Christ
Jesus, so we can do the good things he planned for us long ago” [NLT]).

42. See, e.g., Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274, 282–83
(Alaska 1994); see also Smith v. FEHC, 11 Cal. 4th 1143, 1210 n.7 (1996); cf. Gay
Rights Coalition of Georgetown University Law Center v. Georgetown University,
536 A.2d 1, 31–39 (D.C. 1987).

43. See Elane Photography, LLC v. Willock, 309 P.3d 53, 76 (N.M. 2013).

44. Martin R. Castro, U.S. Comm’n on Civil Rights, Peaceful Coexistence: Reconciling
Nondiscrimination Principles with Civil Liberties 29 (2016).

45
 John C. Eastman

45. E.g., Mark Tushnet, Accommodation of Religion Thirty Years On, 38 Harv. Women’s
L.J. 1, 23–31 (2015); Brian Leiter, Why Tolerate Religion, 26 (2013).

46. U.S. Const. amend. I; cf. Decl. of Independence, ¶ 2 (stating that all people are
“endowed by their Creator” with “certain unalienable Rights”).

47. Michael Stokes Paulsen, Priority of God: A Theory of Religious Liberty, 39 Pepp. L.
Rev. 1159, 1203–04 (2013).

48. St. Paul’s Letter to the Romans was a cornerstone of the natural law: “Indeed, when
Gentiles, who do not have the law, do by nature things required by the law, they
are a law for themselves, even though they do not have the law. They show that the
requirements of the law are written on their hearts, their consciences also bearing
witness, and their thoughts sometimes accusing them and at other times even defend-
ing them” (Romans 2:14–15 NIV, emphasis added); Robert J. Spitzer, Christianity,
Natural Rights, and the Law 4 (2014) (unpublished manuscript) (on file with author).

49. Robert P. George, Conscience and Its Enemies 112–13 (2013).

50. John Henry Newman, Letter to the Duke of Norfolk 250 (1875).

51. James Madison, Letter from James Madison to Thomas Richie (Sept. 15, 1821),
in vol. 3 James Madison, Letters and Other Writings of James Madison: Fourth
President of the United States (1865).

52. John Witte Jr., Religion and the American Constitutional Experiment: Essential
Rights and Liberties, 17–18 (2000).

53. Thomas J. Curry, The First Freedoms: Church and State in America to the Passage
of the First Amendment 78 (1986).

54. Witte, supra note 51, at 18n37.

55. Id. at 20.

56. Curry, supra note 52, at 78.

57. Steven D. Smith, Getting Over Equality 175 (2001).

58. Douglas Laycock, Text, Intent, and the Religion Clauses, in 4 Notre Dame J. L.,
Ethics, and Pub. Pol’y 683 (1990), reprinted in Religious Liberty: Overviews &
History 579, 588 (2010).

59. J. Madison, Memorial and Remonstrance Against Religious Assessments (1785),

11, reprinted in The Founding Fathers and the Debate Over Religion in America,
Matthew L. Harris & Thomas S. Kidd, 68 (2012).

60. Laycock, supra note 57, at 589.

61. Madison, supra note 58, at 63.

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62. Id.

63. Id.

64. Id.

65. Michael W. McConnell, The Origins and Historical Understanding of Free Exercise
of Religion, 103 Harv. L. Rev. 1409, 1453 (1990).

66. City of Boerne v. Flores, 521 U.S. 507, 561 (1997) (O’Connor, J., dissenting).

67. William Penn, The Great Case of Liberty of Conscience (1670), in Cornerstones
of Religious Freedom in America, 31, 57 (Joseph Blau, ed. 1950).

68. 1 Annals of Cong. at 451–52 (J. Gales, ed. 1834) (June 8, 1789).

69. 1 Annals of Cong. at 749 (Aug. 17, 1789).

70. 1 Annals of Cong. at 779 (Aug. 17, 1789).

71. 1 Annals of Cong. at 779–80 (Aug. 17, 1789).

72. 1 Annals of Cong. at 796 (Aug. 20, 1789).

73. 1 Annals of Cong. at 948 (Sept. 23, 1789).

74. 1 Annals of Cong. at 779 (Aug. 17, 1789).

75. See, e.g., Witte, supra note 51, at 74 (contending that the founders likely chose
the broadest language [“free exercise”] as the “source, summary, and synonym” to
describe all the principles of religious freedom, including the liberty of conscience,
and to contemplate legal accommodations following the widespread concern for
conscience rights in the debates).

76. McConnell, supra note 64, at 1501.

77. See generally John K. Wilson, Religion Under the State Constitutions, 32 J. Church
& St. 753 (1990) (summarizing the developments in early state constitutions).

78. Del. (1776), Declaration of Rights, § 2.

79. E.g., N.Y. Const. (1777), art. XXXVIII.

80. Laycock, supra note 57, at 612.

81. Const. of N.J. (1776), art. XVIII.

82. Pa. (1776), Declaration of Rights, art. VIII.

83. See also Anthony T. Caso, Compelling the Conscience: The First Amendment &
Government Mandates 26–27 (2014) (unpublished manuscript) (on file with author)
(discussing George Washington’s commitment to the liberty of conscience by not

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compelling the Quakers to fight); Wilson, supra note 76, at 763 (noting further pro-
visions in the federal and state constitutions respecting the “affirmation” exception
for Quakers refusing to take oaths as accommodation for their religious objection).

84. 794 F.3d 1064, 1071 (9th Cir. 2015).

85. Stormans, Inc. v. Wiesman, 136 S. Ct. 2433, 2433 (2016) (Alito, J., dissenting).

86. Wash. Admin. Code § 246–869–010(1) (2009).

87. U.S. Const. Amend. I.

88. 508 U.S. 520 (1993).

89. Stormans, Inc. v. Selecky, 854 F. Supp. 2d 925 (W.D. Wash. 2012).

90. Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1078 (9th Cir. 2015).

91. Supreme Court Declines to Hear a Case About Religious Pharmacy Turning Women
Away, American Civil Liberties Union (June 28, 2016), https://www.aclu.org/news/
supreme-court-declines-hear-case-about-religious-pharmacy-turning-women-away.

92. Erwin Chemerinksy & Michele Goodwin, Religion Is Not a Basis for Harming
Others, Geo. L. J. 1,111, 1135 (2016).

93. Eastman, supra note 17, at 326 (emphasis added).

94. See Robert K. Vischer, Conscience in Context: Pharmacist Rights and the Eroding
Moral Marketplace, 17 Stan. L. & Pol’y Rev. 83, 96 (2006).

95. Stormans, 854 F. Supp. 2d at 991.

96. This may be especially true for Catholics, whose view of the world is inextricably
connected to the sanctity of life from conception to natural death, and the marriage
between one man and one woman. See generally Alvaré, supra note 20, at 29–36.

97. Vischer, supra note 93, at 119.

98. Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition

of Religious Equality 174 (2008).

99. Pope Benedict XVI, Spe Salvi [Saved in Hope], ¶ 22 (2007).

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