There’s no denying that the Supreme Court’s contemporary First Amendment jurisprudence is friendly to religious Americans. In the past two terms, the Court has affirmed the right of believers to speak according to their conscience, apply certain public funding toward the education of their children, and be free from employment discrimination based on Sabbath observance. These victories are real, and they are worth celebrating. But the threats to religious liberty remain alive and well, and supposing that a few legal wins represent anything close to the vanquishing of these threats ignores the reality on the ground.

Over at the New York Times, David French seems to advance such a claim, arguing that many Christians are unsatisfied because they no longer seek religious liberty but public religious authority: 

At the exact time when religious liberty is enjoying a historic winning streak at the Supreme Court, a cohort of Christians has increasingly decided that liberty isn’t enough. To restore the culture and protect our children, it’s necessary to exercise power to shape our national environment.

Now, I am not Christian, but it seems to me that this is backwards. It is precisely the Left’s proclivity toward public coercion that spurs activity among Christians, and conservatives more broadly, to preserve their own institutional power. Yes, the Supreme Court occasionally steps in to protect religious Americans such as Jack Phillips from external threats, but a decade spent embroiled in endless litigation hardly qualifies as total triumph. It was not the courts that played the primary role in Phillips’s victory (in Masterpiece Cakeshop v. Colorado) or Lorie Smith’s recent win (in 303 Creative v. Elenis), but their own willingness to slave through the yearslong maze of the litigation process. For most Americans, though, this is not a viable option. There are obligations to fulfill, bills to pay, and families to feed. The very process, then, is the punishment. Legal success comes only after legal defeat.

More broadly, it’s a mistake to suppose that the threats to religious liberty are relegated to the legal docket. If politics is downstream from culture, then so is the law. A robust First Amendment jurisprudence does no more to overcome the forces of anti-religious bigotry than Brown v. Board of Education did to overcome the forces of racism.

And so it falls to religious Americans not simply to fight the legal battles as they are thrust upon us, but to resist the cultural forces that make these lawsuits possible. As Yuval Levin notes, we should “do more than occasionally resort to legal appeals to protect our own freedom of action. We also must advance a compelling vision of society rooted in mediating institutions and a government that exists to sustain them.” The empowering of these mediating institutions is hardly a sinister quest for public power, but rather a defense of the robust notion of religious liberty the Founders intended.