The Hobby Lobby Moment.

American religious liberty is in a state of flux and uncertainty. The controversy surrounding Burwell v. Hobby Lobby Stores, Inc. is both a cause and a symptom of this condition. It suggests a state of deep contestation around one of the key markers of the church-state settlement: the accommodation of religion. The problem is social and political, not judicial, although judges are obviously influenced by those larger forces. Courts are rarely at the forefront of significant social change. Judges are constrained by their function: to decide specific cases, based primarily on a finite (if malleable) set of materials such as prior precedents and statutes. Hobby Lobby itself turned not on the vagaries of the Religion Clauses, but on the directions laid down by Congress in the Religious Freedom Restoration Act, or “RFRA.” The Court is routinely criticized for the incoherence of its Religion Clause jurisprudence, and there are strong doctrinal disagreements among judges on these issues. On the whole, however, the judicial treatment of the American church-state settlement is relatively stable. Conditions are much more fraught outside the courts. In public discussion and in the scholarly community, the very notion of religious liberty — its terms and its value — has become a deeply contested subject. In the