The sort of question one ponders from time to time. Most recently, for me, in a discussion with a colleague earlier today.

The issues of how religious liberty should be understood as part of the overall public good and how it should be protected in law are with us now and probably will remain with us forever. What may bakers refuse to bake? In what ways may religious gatherings be restricted for reasons of public health? May a public-school football coach lead his players in an optional prayer on the sideline after a game? May teachers lead public-school students in prayer as an official or standard part of the school day? Must confessors report abuse to the police? And on and on.

My answers in those debates would be: “Whatever they want,” “It depends,” “Yes,” “No,” and “Yes.” But instead of elaborating them, I’d like to decline to answer my headline question — in a way that I hope illuminates some of the underlying matters of principle.

Employment Division v. Smith, you recall, concerned some employees of the State of Oregon who had been fired and denied unemployment benefits for using peyote as part of their religious practice. They maintained that this was unconstitutional under the First Amendment. Scalia disagreed. Writing for the majority, he sided with the state, holding that so long as a prohibition was “neutral” and “generally applicable” — i.e., as long as it did not specifically target religious conduct but applied to any who performed the prohibited act for any reason — it was constitutionally kosher. None of the heightened levels of “scrutiny” that are found elsewhere in rights jurisprudence — such as that the government must have a compelling interest in the prohibition or use the least restrictive means to secure that interest — are to apply.

In A Letter concerning Toleration, Locke gave an analysis of lawmaking and religious liberty that might seem — and I assume often is taken — to support Scalia. His example (animal sacrifice) does not quite comport with contemporary views, including my own, about animal cruelty, but let’s consider it on its own terms and see what it implies:

If some congregations should have a mind to sacrifice infants, or (as the primitive Christians were falsely accused) lustfully pollute themselves in promiscuous uncleanness, or practise any other such heinous enormities, is the magistrate obliged to tolerate them, because they are committed in a religious assembly? I answer: No. These things are not lawful in the ordinary course of life, nor in any private house; and therefore neither are they so in the worship of God, or in any religious meeting. But, indeed, if any people congregated upon account of religion should be desirous to sacrifice a calf, I deny that that ought to be prohibited by a law. Meliboeus, whose calf it is, may lawfully kill his calf at home, and burn any part of it that he thinks fit. For no injury is thereby done to any one, no prejudice to another man’s goods. And for the same reason he may kill his calf also in a religious meeting. Whether the doing so be well-pleasing to God or no, it is their part to consider that do it. The part of the magistrate is only to take care that the commonwealth receive no prejudice, and that there be no injury done to any man, either in life or estate. And thus what may be spent on a feast may be spent on a sacrifice. But if peradventure such were the state of things that the interest of the commonwealth required all slaughter of beasts should be forborne for some while, in order to the increasing of the stock of cattle that had been destroyed by some extraordinary murrain, who sees not that the magistrate, in such a case, may forbid all his subjects to kill any calves for any use whatsoever? Only it is to be observed that, in this case, the law is not made about a religious, but a political matter; nor is the sacrifice, but the slaughter of calves, thereby prohibited.

What is decisive, on this view, is whether the state has restricted animal sacrifice as religious practice or merely as a type of conduct that bears on the public good. Kill your calf if you want to, for purposes religious or otherwise — but not if we’re short on cattle and we need a law to increase the supply of them. Sounds like Scalia.

But not so fast. We must remember that “levels of scrutiny” are a novelty of American jurisprudence and that the idea of them would not have occurred to Locke. No level of scrutiny, even the most stringent, implies that the government must always yield to a certain sort of rights claim. And we might also dilute the dichotomy between “religious practice” and “public good” by noting that religious liberty serves the public good for nonreligious reasons, e.g. by instilling morals or preventing sectarian strife. (Locke, as I read him, favored religious liberty for both religious and nonreligious reasons. Nowhere will you find him more vehement than in his denunciations of religious persecution as cruelly destructive to individuals and society. He also believed in an afterlife and a judgment and made this belief a part of his philosophy in various ways — e.g., presenting it as a powerful motivation for moral conduct. But he held that securing the eternal well-being of souls lay without the competence of the state, so that the prescription or proscription of religious practices on theological grounds was an abuse of the law’s authority.)

What I think Locke’s example does imply is that, if heightened scrutiny is to be applied to burdens on religion, the justification for this is practical rather than being some logico-deductive moral or political truth. I.e., it is never intrinsically wrong to prohibit a practice that happens to be religious for some, provided that the prohibition is enacted for nonreligious reasons of demonstrable public concern. If we could be perfectly sure that all our laws had been enacted for the sake of the public good, then Employment Decision v. Smith would be just fine. Nonetheless, it might be that people will fail to consider such cases objectively, that prejudice against religion will influence decision-making, that this will cause all kinds of civil strife that we would be better off without — and so we might choose to be especially careful when we notice that our prohibitions of general conduct start to impinge on people’s religious practice, and we might think it wise to formalize this extra care as a heightened level of scrutiny applied to burdens on religion.

This is, by the way, an interesting example of how a general principle can fail to clearly answer a specific political question (since the question might invoke uncertainties about intent, consequences, possible error, and so on) without ceasing to be useful as a guiding light (since the basic distinction between prohibiting something as religious practice and prohibiting it as general conduct will remain the standard that we should attempt, as well as we can, to approximate in our world of uncertainty).