Religious Freedom and the Nondiscrimination Norm

The ongoing “law and religion” story in American constitutional law, political thought, and public debate includes several related but distinguishable plotlines. There is, for example, the elaboration of the idea – from James Madison’s famous “Memorial and Remonstrance against Religious Assessments” in 1785 to contemporary school voucher cases and controversies ¹ – that our understanding of religious liberty and the First Amendment’s no establishment rule allow but limit financial support and other forms of cooperation between governments and religious organizations. In addition, episodes involving exemptions for Quakers from military service requirements, prosecutions (and persecutions) of Latter-Day Saints for polygamy, ² and the peyote rituals of the Native American Church ³ have been highlights (for better or worse) in tales of religious believers’ efforts to secure accommodations and exceptions from generally applicable laws. School prayer policies, ⁴ holiday displays, ⁵ and Ten Commandments monuments ⁶ have figured prominently in the continuing effort to work out the role of religious expression, symbols, and arguments in the culture and the public square.