Notre Dame Law Review

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Perry Dane*

This symposium was convened to explore the rights of businesses and employees to invoke freedom of religion or freedom of expression to resist certain forms of state regulation.  The most immediate occasions for that discussion, at least for my purposes, are cases such as 303 Creative LLC v. Elenis, in which the Supreme Court upheld the right of a website designer to refuse to design a wedding website for a same-sex couple.[1]  These sorts of cases, which pit the religious or expressive rights of conscientious believers against the equality rights of others, have proliferated in recent years.

I have three main, intertwined, goals in this Essay.  One is to zoom out and offer some thoughts about the general architecture of freedom of religion—specifically the question of religion-based exemptions—and freedom of speech, and their relation to each other.  Another is to explore how that architecture has been warped, partly by the imperatives of litigation, but also by the effects of our current state of national polarization.  A third is to say something about the mutual responsibility that should—even in a polarized age—set the terms for honest, good faith, mutual, normative encounter.

Along the way, I also want to stake out a position about legal scholarship.  This Essay suggests that some of the legal challenges that businesses might raise against certain forms of government regulation are in principle impossible to adjudicate, though judges in our system of law will need to hand a verdict to one side or the other.  That might not seem like a helpful contribution.  But legal scholars are not put on earth just to solve legal disputes or unravel doctrinal puzzles.  Part of their job is to identify contradiction and even intractability.[2]

Moreover, if we take the relationship between religion and state to involve a genuinely mutual encounter, in which each side makes normative claims but also has potential normative responsibilities, then scholars in the field might want to speak at times in something approaching a theological or at least sociological register.  That is not something that judges can or should do.  It is also intellectually risky and fraught for anyone looking at a religious tradition from the outside.  But, in this Essay at least, I find it necessary, humbly and tentatively, to challenge believers to help make their own sense of the structural difficulties that I will be trying to describe.

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© 2024 Perry Dane.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.

*Professor of Law, Rutgers Law School.

This paper incorporates sections of some of my unpublished talks, including Perry Dane, Weaponization, Polarization, and the Structure of Religious Exemptions (June 30, 2023) (unpublished manuscript), https://ssrn.com/abstract=4475855 [https://perma.cc​/AU9H-GZQB]; and Perry Dane, The Anomalous Free Speech Clause (Aug. 19, 2022) (unpublished manuscript), https://ssrn.com/abstract=4189016 [https://perma.cc/C9YX​-H8JW].

I am grateful to Richard W. Garnett for his helpful comments on an earlier draft of this paper.

[1]143 S. Ct. 2298, 2321–22 (2023).  This paper does not try to grapple with the other pieces of the symposium’s charge, to make sense of the government employee cases such as Kennedy v. Bremerton School District, 142 S. Ct. 2407 (2022), that sit at the confluence of freedom of speech, freedom of religion, and Establishment Clause concerns.

[2]I made a similar point in Perry Dane, Christmas (Jan. 15, 2015) (unpublished manuscript), https://ssrn.com/abstract=947613 [https://perma.cc/V84Z-XWUM].