Here's an insightful commentary by RR Reno, editor of First Things entitled, "Religion and Public Life in America" printed in Imprimis, a publication of Hillsdale College.
He talks about the nature of the attack here.
RELIGIOUS LIBERTY is being redefined in America, or at least many would like it to be. Our secular establishment wants to reduce the autonomy of religious institutions and limit the influence of faith in the public square. The reason is not hard to grasp. In America, “religion” largely means Christianity, and today our secular culture views orthodox Christian churches as troublesome, retrograde, and reactionary forces. They’re seen as anti-science, anti-gay, and anti-women—which is to say anti-progress as the Left defines progress. Not surprisingly, then, the Left believes society will be best served if Christians are limited in their influence on public life. And in the short run this view is likely to succeed. There will be many arguments urging Christians to keep their religion strictly religious rather than “political.” And there won’t just be arguments; there will be laws as well. We’re in the midst of climate change—one that’s getting colder and colder toward religion.What should our response be?
Former Georgetown law professor Chai Feldblum—who is also a current Obama appointee to the Equal Employment Opportunity Commission—has written about the coming conflicts between gay rights and religious liberty. With an admirable frankness she admits, “I’m having a hard time coming up with any case in which religious liberty should win.” Again, the Bob Jones case is in the background, as are other aspects of civil rights law designed to stamp out racial discrimination. For someone like Feldblum, when religious individuals and institutions don’t conform to the new consensus about sexual morality, their freedoms should be limited...
It is precisely the possibilities evoked by Nussbaum and Feldblum that now motivate the Obama administration’s intransigence about allowing places like Notre Dame to be classified as religious employers. In the Bob Jones case, the justices were very careful to stipulate that “churches or other purely religious institutions” remain protected by the First Amendment’s principle of free exercise. By “accommodating” rather than counting Notre Dame and other educational and charitable organizations as religious employers, secular liberalism can target them in the future, as they have done to Catholic adoption agencies that won’t place children with homosexual couples.
A recent book by University of Chicago professor of philosophy and law Brian Leiter outlines what I believe will become the theoretical consensus that does away with religious liberty in spirit if not in letter. “There is no principled reason,” he writes, “for legal or constitutional regimes to single out religion for protection.” Leiter describes religious belief as a uniquely bad combination of moral fervor and mental blindness, serving no public good that justifies special protection. More significantly—and this is Leiter’s main thesis—it is patently unfair to afford religion such protection. Why should a Catholic or a Baptist have a special right while Peter Singer, a committed utilitarian, does not? Evoking the principle of fairness, Leiter argues that everybody’s conscience should be accorded the same legal protections. Thus he proposes to replace religious liberty with a plenary “liberty of conscience.”
Leiter’s argument is libertarian. He wants to get the government out of the business of deciding whose conscience is worth protecting. This mentality seems to expand freedom, but that’s an illusion. In practice it will lead to diminished freedom, as is always the case with any thoroughgoing libertarianism.
Let me give an example. The urban high school my son attended strictly prohibits hats and headgear. It does so in order to keep gang-related symbols and regalia out of the school. However, the school recognizes a special right of religious freedom, and my son, whose mother is Jewish and who was raised as a Jew, was permitted to wear a yarmulke. Leiter’s argument prohibits this special right, but his alternative is unworkable. The gang members could claim that their deep commitments of loyalty to each other create a conscientious duty to wear gang regalia. If everybody’s conscience must be respected, then nobody’s will be, for order and safety must be preserved.
First and most obvious—defend religious liberty in the courts. Although I have depicted deep cultural pressures that work against religious liberty, we live in a society governed by the rule of law. Precedent matters, and good lawyering can make a substantive difference.What most people don't realize is religious freedom is the first freedom listed in the First Amendment. It's placed there for a reason. Religious belief and practice are the most central to the human person. This loss of religious conscience protection then threatens every other freedom.
Second—fight against the emerging legal theories that threaten to undermine religious liberty. This is a battle to be carried out in the law schools and among political theorists. For decades, legal activists on the Left have been subsidized by legal clinics and special programs run in law schools. Defenders of religious liberty need to push back.
Third—fight the cultural battle. Legal theory flexes and bends in accord with the dominant consensus. This Brian Leiter knows, which is why he does not much worry about the current state of constitutional law. He goes directly to the underlying issues, which concern the role of religion in public life.
We must meet the challenge by showing that religion is indeed special. Religious people are the most likely Americans to be involved in civic life, and the most generous in their charitable contributions. This needs to be highlighted again and again. Moreover, we need to draw a contrast with the Nones, who tend to outsource their civic responsibilities and charitable obligations to government in the form of expanded government programs and higher taxes.
There is another, deeper argument that must be made in defense of religion: It is the most secure guarantee of freedom. America’s Founders, some of them Christian and others not, agreed as a matter of principle that the law of God trumps the law of men. This has obvious political implications: The Declaration of Independence appeals to the unalienable rights given by our Creator that cannot be overridden or taken away. In this sense, religion is especially beneficial. As Popes John Paul II and Benedict XVI both emphasized, it gives transcendent substance to the rights of man that limit government. Put somewhat differently, religion gives us a place to stand outside politics, and without it we’re vulnerable to a system in which the state defines everything, which is the essence of tyranny. This is why gay marriage, which is sold as an expansion of freedom, is in fact a profound threat to liberty.
Finally, we must not accept a mentality of dhimmitude. The church, synagogue, and mosque have a tremendous solidity born of a communion of wills fused together in obedience to God. This gives people of faith the ability to fight with white fury for what they perceive to be a divine cause, which is of course a great force for righteousness—but also a dangerous threat to social peace, as early modern Europe knew only too well.