George Mason University Civil Rights Law Journal
The individual has the autonomy of choice respecting matters of sex, gender, and procreation. The findings of science as established by the knowledge class, together with the policy preferences of that class in this domain, should be imposed on everyone. These propositions reflect two central creeds of what this Article calls the "new establishment." They, or statements like them, are the basis for policies across the nation touching many walks of life, from business to education, media, advertising, science, healthcare and medicine, and more.
Whether these propositions constitute a "religious" establishment turns out to be an irrelevant distraction. To be sure, some have argued that the new establishment is religious in nature, but the hypertrophy of the concept of religion in American law has made the legal category "religion" so malleable as to render it useless as an analytical tool. And, at any rate, "religious" belief responds to the world in which it is situated. When that world tells dissenting citizens that their beliefs are irrational, antiscientific, and benighted—and that their objections to new establishment creeds are discreditable because they are "religious”—dissenters may be forgiven for taking the world at its word. If these dissenting views are religious, it is the new establishment that has made them so and, in consequence, entangled itself in religious controversy.
Free exercise exemption has long been thought of as a way to resist the new establishment. Yet, the dynamics of resistance are ambiguous. Individual exemption, unless connected to a larger strategy, can validate and strengthen the new establishment. Piecemeal carve-outs to the new establishment sometimes can reinforce and sanction its dominance and entrench the supplicant position of the exempted. Many advocates of religious exemption do not object to this state of affairs. They insist that they have no interest in disrupting the new establishment. They are committed to it, too.
Yet, partisans of the new establishment are not wrong to sense possible danger from expanding rights of free exercise. These rights, if synthesized and organized, could become broader pockets and subcommunities of disestablishment. There is a continuum between free exercise, disestablishment, and establishment. Dissenting positions on American life involving family, education, religion, sex and gender, and other controversial subjects might be stitched together from the somewhat disaggregated set of free exercise exemption micro-victories to constitute challenges to the new establishment. To do that, however, would demand concerted action involving some mechanism other than exemption. It is not plain that advocates of religious exemption are interested in that project, but the project may be coming whether they like it or not. Unlike the new establishmentarians, some prominent free exercise advocates have not adequately appreciated—or do not wish to see—that the real fight is not about an individual exemption here or there, but about the future shape of the American establishment.