When we give religious exemptions, why do we do it? Is it because we think people will back down otherwise or because we think they won’t? What exactly are religious exemptions trying to avoid? The harm to conscience that submission would bring? Or the defiance and resistance that refusal would entail?
The easy answer is both. And it is the truthful answer as well. We give religious exemptions both to avoid the prospect of martyrdom and to avoid the prospect of broken consciences. Religious exemptions protect human dignity and freedom; they also avert open contestation between church and state. Both things are good, and there is no need to choose between them.
Yet even so, the above questions still linger. And how you think about them can end up coloring your approach to all kinds of things: which claims should succeed and which should fail, how doctrine ought to be constructed, and what religious liberty is all about.
This symposium essay ponders these questions, drawing from the length of the American experience. Its basic premise is that martyrdom matters—that religious liberty has and will be shaped by the willingness of people to suffer for their faith. Along the way, it tries to offer some more specific and provocative thoughts.
Lund, Christopher, "Martyrdom and Religious Freedom" (2018). Connecticut Law Review. 394.