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So in South Carolina yesterday a man who, well, might be Muslim, asks Newt Gingrich whether he could support a Muslim-American for president, given that we recently had a woman in Hillary Clinton and a Jewish-American in Joe Lieberman running for president. And without missing a beat, Newt responds:

I think it would depend entirely on whether they would commit in public to give up sharia. I am totally opposed to sharia law being accepted by any court in the United States. In fact, I favor a federal law that preempts it, and says sharia law will not be used in any court in the United States. And this is a very fundamental question...

We have a friend in Arizona who serves in the U.S. Navy, who's a medical doctor, who's Muslim, but who's a totally modern person trying to find ways to bring Islam into modernity...

It depends entirely on the person. If they are a modern person integrated into the modern world and prepared to recognize all religions that's one thing. On the other hand, if they are the Saudis who demand that we respect them while they refuse to allow either a Jew or Christian to worship in Saudi Arabia, that's something different...

But within that framework, a truly modern person who happened to worship Allah would not be a threat. On the other hand, a person who belonged to any kind of belief in sharia, any kind of effort to impose that on the rest of us, would be a mortal threat.

Now let's try substituting "halakha" for "sharia." Halakha is the large body of Jewish law by which rabbinical authorities have for a couple of millennia sought to regulate the religious and civic behavior of the Jewish people. Some of it is more authoritative, some less, and new rulings get issued by different rabbinic powers that be. If he wants to find Saudi-like examples of it, Gingrich should check out Israel's haredim, who are hard at work these days trying to undermine the equal status of women, to say nothing of issuing fatwas against Jews working with and selling real estate to non-Jews. Not very modern.

On the other hand, there's the aforementioned Joe Lieberman, a more or  less modern individual who observes the Sabbath, keeps kosher, and generally, as Newt would say, belongs to some kind of belief in halakha. I don't know whether Newt would ever have supported Lieberman's presidential aspirations, but I'm inclined to think that he wouldn't consider them a mortal threat to the republic.

Support for presidential candidates aside, Gingrich's sharia preemption law would not only be unconstitutional (as a federal judge in Oklahoma recently made abundantly clear), it represents precisely the kind of war on religion that he (along with Rick Santorum and Rick Perry) have been heatedly charging the Obama Administration with conducting. What is the ministerial exception to employment law but judicial recognition of a particular faith's right to use its own rules to determine who's in charge?

If the Free Exercise clause means anything, it means the right of Americans not to be a modern person integrated into the modern world, whatever that means. Gingrich's personal religious test for presidential office is about as un-American as it gets.

What's the big deal with Hosanna-Tabor, yesterday's unanimous Supreme Court decision supporting a religious school's right to fire a teacher with ministerial responsibilities regardless of her health disability? Although the Court had never recognized a "ministerial exception" to federal anti-discrimination law before, lower federal courts have habitually done so. Most people would agree that religious bodies have a right to hire and fire ministers without government interference. In this case, the Court found that the teacher in question did indeed have sufficient religious responsibilities to qualify as a minister. Yet the NYT's Adam Liptak judges Hosanna-Tabor "the most significant religious liberty decision in two decades."

The big deal is that two decades ago, the Court substantially undermined the constitutional right to free exercise in Employment Division v. Smith (1990), a 6-3 decision written by Antonin Scalia that held that two Native American drug counselors could not go to federal court to claim a religious right to sacramentally ingest peyote as part of their membership in the Native American Church. Here's the language of Smith's key holding:

Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons. See, e. g., Reynolds v. United States, 98 U.S. 145, 166 -167. The only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that [494 U.S. 872, 873]   Clause in conjunction with other constitutional protections. See, e. g., Cantwell v. Connecticut, 310 U.S. 296, 304 -307; Wisconsin v. Yoder, 406 U.S. 205 . Pp. 876-882.

Note the reference to Reynolds. That was the famous case that in 1878 turned down the Mormon claim to have a free exercise right to polygamy with the dictum: "Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices." What Smith did was prevent a religious organization from going to federal court and saying, "Look, we know that there's a neutral, generally applicable law that bars us from doing something we consider important to our faith, but we think we should be excused by the First Amendment from having to comply with it." At least that is what Smith seemed to do until yesterday. Here's what Chief Justice Jon Roberts, writing for the Court, had to say about that:

It is true that the ADA's [Americans With Disabilities Act's] prohibition on retaliation, like Oregon's prohibition on peyote use, is a valid and neutral law of general applicability. But a church's selection of its ministers is unlike an individual's ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government's regulation of"physical acts" from its "lend[ing] its power to one or the other side in controversies over religious authority or dogma"). The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit.

Maybe ingesting peyote is an outward physical act distinguishable from being employed or not employed as the result of "an internal church decision that affects the faith and mission of the church itself." But anyone who knows anything about Mormon theology knows that the LSD Church's embrace of polygamy--"plural marriage"--was an internal church decision that affected its faith and mission profoundly. And it was Reynold's distinction between belief and practice that was used to rationalize the decision in Smith. One might add that being employed according to religious criteria seems more akin to being married according to religious criteria than it does to partaking of a controlled substance or engaging in some other outward physical act.

The bottom line is that, having been forced by the Justice Department to confront Smith directly, the conservatives on the Court significantly walked the Scalia doctrine back, without reversing Smith and annoying that famously irascible justice (who signed on to Hosanna-Tabor without so much as a concurring word). The Court's liberal wing, which for two decades has opposed Smith and its progeny, was happy to go along with this restoration of religious freedom. Roberts' dismissal of the contention that Smith foreclosed recognition of a ministerial exception no doubt had the liberals smiling up their sleeves.

Religious identity doesn't make much of a difference when it comes to voting in New Hampshire, as demonstrated by a new poll conducted by JZ Analytics for the Washington Times. It shows the two Catholic candidates, Rick Santorum and Newt Gingrich, actually doing worse with Catholics than they do with Protestants. And Mitt Romney does just about as well with GOP primary voters who identify themselves as born again--evangelicals, mostly, one presumes--as he does with everybody else.

As Andrew Walsh and I argue in One Nation, Divisible: How Religion Religious Differences Shape American Politics (just out in paper, with new material on the Obama presidency), New Englanders embraced a principle of church-politics separation in the mid-20th century in order to put the grim Yankee-Irish Catholic conflicts of the previous century behind them. John F. Kennedy brought that principle to national politics when he won the presidency in 1960. And it's why New England pols like Michael Dukakis, John Kerry, and Howard Dean tend to handle religion so badly on the national stump.

That's not to say that religion doesn't matter at all in New England, but you have to look carefully. In the JZ Analytics poll, Santorum, at 10.8 percent overall, does do a good bit better with the born-agains (19.7 percent) and those who attend worship services once a week or more (21 percent). That's an opportunity for him, but a small one. There aren't a lot of born-agains in New Hampshire, and these days (according to our 2008 ARIS survey), northern New England is the least religiously affiliated region of the country.

Primary Update (Rev.): And so it goes. In the actual primary, Romney won pluralities of Catholics (42 45 percent), Protestants (32 35 percent), and, yes, even evangelicals (27 30 percent). Among the last of these, to be sure, he beat out Santorum by just one point a modest seven points. But he got 37 40 percent of non-evangelicals as opposed to Santorum's mere 7 6 percent. And only 22 percent of NH GOP primary voters identified as evangelical. Meanwhile, in a state where libertarians include a healthy proportion of red-blooded Ayn Rand atheists, Ron Paul amassed almost half the Nones to Romney's 19 21 percent. But unfortunately for Dr. Paul, only 12 percent of the voters fell into that no-religion category.

I've received the following request for a correction from Eric Rassbach, the national litigation director for the Becket Fund, regarding yesterday's post on HHS' contraceptive mandate.

I wanted to point out an error in your post regarding the HHS mandate litigation and request a correction: the Supreme Court would not have to "reverse" itself with respect to RFRA were it to rule in favor of our clients. Although in Boerne v. Flores RFRA was declared unconstitutional as applied to the states, it still remains in force with respect to the federal government. For example, almost 6 years ago the Supreme Court upheld a RFRA claim against the federal government in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (we filed a brief in support of UDV in the appeal). The same is true of Smith--it also provides for strict scrutiny if, for example a law contains categorical or individualized exceptions; the HHS mandates contain both. (See, e.g., Fraternal Order of Police v. City of Newark. (Becket Fund argued for itself, the ACLU and ADL)).

You are probably not surprised that I also disagree with other parts of your post, but this was an error I thought I ought to bring to your attention

As a non-lawyer, I'm always happy to be corrected by those who know better, and in this case I admit I could have been more precise. Rassbach is right to point out that the Supreme Court wouldn't have to reverse itself with respect to RFRA were it to rule in favor of Belmont Abbey College. RFRA remains a valid federal statute that the Court has used to rule on cases such as Gonzales. But where the Court would not have to reverse itself on RFRA, it would with respect to Employment Division v. Smith, if it agreed to the suit's claim that the HHS mandate violated the school's religious freedom "as secured by the First Amendment." With respect to Fraternal Order, that gets deep into the jurisprudential weeds, and includes disagreements from other federal appeals courts. Let the lawyers sort that out.

My principal concern was to dispute the claim by various evangelical and Orthodox Jewish leaders that "the Federal government is obligated by the First Amendment to accommodate the religious convictions of faith-based organizations of all kinds, Catholic and non-Catholic." Nor does Rassbach contend I'm wrong. Under current Supreme Court jurisprudence, the federal government is not obligated to accommodate the religious convictions of faith-based organizations.

Be all this as it may, the fact is that, thanks to Smith and its progeny, we now have two different constitutional standards for protecting religious freedom in the U.S.--a high, strict scrutiny standard for the feds and a low, no-contesting-a-neutral-law standard for the states. I think this is a rotten state of affairs and I strongly suspect Becket's lawyers would agree that Smith et al. ought to be deep-sixed. While it does not serve their clients' cases to instruct the courts to that effect, it would be a good thing if they would make it clear to fellow conservatives--yo, Newt! Yo, USCCB!--that the biggest contemporary threat to religious freedom has come not from the ACLU and the Obama Administration but from Justice Scalia and his friends on the Court.

Opposition to Health and Human Services' rules on coverage of contraception under the Affordable Care Act is no longer just a Catholic thing. Last week, a collection of the evangelical elite plus the heads of the leading Orthodox Jewish groups wrote a letter to President Obama protesting the mandate as a violation of their institutions' free exercise rights: "We believe that the Federal government is obligated by the First Amendment to accommodate the religious convictions of faith-based organizations of all kinds, Catholic and non-Catholic."

But there actually appears to be no such obligation in this case, thanks to Antonin Scalia's majority decision in Smith v. Employment Division (1990). Smith says that free exercise claims cannot be made against "a neutral law of general applicability," and the HHS mandate looks altogether neutral and generally applicable. That is, it requires all providers of health insurance to cover contraceptive services, even as it permits HHS to make discretionary exceptions for religious institutions. The opponents think the exceptions are too narrow, though they do not agree on how much broader they ought to be. Meanwhile, the mandate has its fervent supporters. Welcome to the culture wars, Obamacare!

Last month, meanwhile, as part of the push-back, Belmont Abbey College, a small Catholic institution near Charlotte, filed suit against the government claiming that the contraception mandate violates its religious liberty. The complaint, which has now been joined by Colorado Christian University, a Denver-based evangelical institution, is the work of the Becket Fund, the prominent conservative legal outfit; and an interesting document it is. Along with making a weak argument that the HHS mandate is neither neutral nor generally applicable, the complaint contends that it violates the 1993 Religious Freedom Restoration Act. That act, which sought to overturn the Smith standard, was declared unconstitutional by the Supreme Court in 1997.

By invoking "strict scrutiny"--the prior standard of review that requires the finding of a "compelling state interest" in order to disallow a a free exercise claim--the complaint directly invites the Court to reverse itself either on RFRA or on Smith itself. And it would be a good thing if it did. I say this not because I think the contraception mandate should be declared unconstitutional. Rather, it's because the alternative to Court review is to make a consequential church-state issue the plaything of the politics of the moment.

Whatever one thinks of strict scrutiny in free exercise cases, it provides a principled basis by which our society can balance a religious liberty claim against the interest of society at large. Consider whether an institution run by Jehovah's Witnesses should be permitted not to cover blood transfusions in its health care plan. It would be better for the Supreme Court to turn thumbs down by enunciating a compelling state interest in protecting life--as distinct from permitting religious institutions to opt out of providing contraceptive coverage--than to allow the decision to be made simply because, in an election year, there are lots more Catholics and evangelicals than there are Jehovah's Witnesses.

Increasingly, religious actors are making free exercise claims against neutral and generally applicable laws that, under Smith, they have no basis for making in courts of law. By tossing such claims into the political arena, the Supreme Court has effectively established the principle that the religious liberties of the many are more important than the religious liberties of the few. That's a disgrace. It's time for Smith to go.

Anyone who doubts that Newt Gingrich is a bomb-thrower should head right over to "Bringing the Courts Back Under the Constitution," a position paper that is part of the Newtonian revolution also known as the 21st Century Contract with America. The New York Times was not exaggerating when it editorialized a few days ago that what Gingrich has in mind would make the Supreme Court into "a puppet of the political branches."

Religion is exhibit A in Gingrich's case for enabling Congress and the president to ignore and overturn federal court decisions constitutional and otherwise. Much of what bothers Newt's civil religious soul is Establishment Clause jurisprudence forbidding prayer in public schools and official acknowledgements of America's Creator god. But the remarkable thing is that with all the huffing and puffing about the Supreme Court's war on religion, Gingrich does not so much as mention the single greatest blow to religious liberty it ever struck--Employment Division v. Smith.

In that 6-3 decision, the majority opinion Court laid down a brand-new principle of religious jurisprudence: that a claim that the government has violated one's free exercise of religion cannot be advanced against any neutral law of general applicability. Thus, to take a current example, there is now no free exercise right for ministers to be exempt from federal law banning discrimination in hiring.

So profoundly did Smith threaten freedom of religion that the largest coalition of religious bodies in American history--left, right, and center--joined together to lobby successfully for passage of the Religious Freedom Restoration Act (RFRA), which Bill Clinton enthusiastically signed into law in 1993. RFRA instructed the Court to evaluate free exercise claims according to "strict scrutiny," its highest standard for weighing the government's interest against a constitutional right or principle. In 1997, the Court overturned that effort to dictate its rules in Boerne v. Flores.

Now this history is well known to Gingrich. As minority whip in the House of Representatives, he was responsible for rounding up Republican votes for RFRA, and he was speaker of the house when Boerne came down. Indeed, among the remedies he proposes for disciplining the federal courts is passage of legislation establishing rules for the them to follow. Why does His Self-Importance omit this important chapter in the history of congressional efforts to influence constitutional jurisprudence--one where he himself played a significant role?

It's obvious enough. The author of Smith was none other than conservative American idol Antonin Scalia, lauded in "Bringing the Courts" as "among the most vocal opponents of judicial supremacy in their opinions." Right. So Gingrich points to the need for presidential and congressional action should the Court, this term, overturn or restrict the "ministerial exception" in Hosanna-Tabor v. EEOC. But God forbid that he blame the real perpetrator, when the heroes of religious liberty in Smith were those paragons of liberal judicial supremacy, Justices Blackmun, Brennan, and Marshall.

Four years ago, a bipartisan group of prominent Catholic laity led by former Ambassador-to-the- Vatican Thomas Melady put out a statement calling for greater civility in American politics and got slammed for their effort by Catholic riiht-wingers who considered this an assault on the pro-life movement. And inasmuch as the statement opposed bishops' denying Communion to pro-choice politicians, you can understand why the right-wingers thought so.

Now, Melady and Co. have released a new statement attacking the anti-Mormon remarks of Southern Baptist pastor Robert Jeffress and expressing their "determination to assure that not only civility be maintained in the public discourse but that all inclinations to raise the issue of personal religious affiliation be avoided."

As Catholics, we have felt the sting of bias in previous national elections. We share the concern of many of our citizens of all religious faiths that allowing the question of a candidate's religion to be subject to public ridicule is a grave regression from what we have accomplished in our forward movement as Americans since the establishment of our Republic.

Thus far, there's been no pushback from the right. Indeed, the statement has received virtually no notice at all since being reported by Michael Sean Winters in his NCR blog. It's pretty clear that conservative Catholics barely have anti-Catholicism from the right on their radar screens. Note how quickly Bill Donohue shut up about Jeffress after receiving assurances from Rick Perry that he didn't share Jeffress' point of view.

This strikes me as altogether too blithe. Evangelicals may not, these days, harbor the same kind of animus against Catholics that they once did. But don't think for a moment that anti-Catholicism won't be working its way through the evangelical underground should either Newt Gingrich or Rick Santorum come to the fore as the Un-Romney in the GOP presidential sweepstakes. To paraphrase Pastor Niemoeller, "First they came for the Mormons. But I wasn't a Mormon..."

I don't know about you, but I'm pretty relieved that the House of Representatives passed a resolution yesterday declaring that the National Motto is the national motto. So In God We Trust is In God We Trust, and God's in his heaven, and all's right with the world. More or less.

OK, so there are some snickerers out there--Dana Milbank, I'm talking about you-- who think that maybe the Republicans who control the House should be focusing their attention on legislation to create jobs instead of whomping up a lot of whereases to demonstrate that God is really important for liberty, morality, equality, and all that other good stuff. But I say that, unlike government, God is a Job Creator. You might even call him, The Great Entrepreneur.

I mean, but for "our Creator" (as our Declaration puts it), we wouldn't have been able to avail ourselves of the opportunity to eat bread by the sweat of our brow. Plus think of all the jobs that have been created by divine acts like the freak snowstorm that has plunged my state into darkness. There's a good month of work out there for thousands of chain saws and electrical utility repair trucks to do until the lights are back. Personally, I'm praying for for one of those trucks to show up on my block, but so far there's been nary a sighting in all of West Hartford. Ah, the evidence of things unseen.

So thanks again, Majority Leader Cantor. At least for another year, the closest we're going to get to a Republican jobs bill is trusting to the Lord. As your grandmother might have said, "From your mouth to God's ear!"

Obviously smarting from the slings and arrows of outraged pundits, Rev. Robert Jeffress took to WaPo's op-ed page yesterday to defend himself. And his defense is worth a careful look, because rarely (I'm tempted to say never) has a leader of the religious right argued so directly and publicly that Americans should use religious identity as a basis for voting.

For starters, there can be no doubt that Jeffress really means it.

First, discussion of a candidate's faith is permissible. Over the past several days, talk show hosts have lectured me about Article VI of the Constitution, which prohibits religious tests for public office, as if considering a candidate's faith is somehow unconstitutional, un-American or even illegal. How ludicrous. This is a not-so-subtle attempt to eliminate through intimidation religion as a suitable criterion by which to choose a candidate. The Constitution is referring to religious litmus tests imposed by government, not by individuals.

Interestingly, John Jay, the first chief justice of the Supreme Court and co-author of the Federalist Papers, thought a candidate's religious beliefs should be a primary consideration in voting. Jay wrote, "It is the duty, as well as the privilege and interest of our Christian nation, to select and prefer Christians for their rulers." According to Jay, preferring a Christian candidate is neither bigoted nor unconstitutional.

True enough, Article VI does no more than ban religious tests for office by the government--such as prohibiting Catholics from serving in the national legislature, as English law did at the time. The important question, however, has to do with why Jeffress thinks Christians should exercise a preferential option for Christians in the voting booth, even as he recognizes that just any Christian won't do.

While I prefer a competent Christian over a competent non-Christian, religion is not the only consideration in choosing a candidate. Frankly, Christians have not always made good presidents. We must also consider whether a candidate is competent to lead and govern according to biblical principles.

Put another way, a competent non-Christian should be preferred to an incompetent Christian. But a competent Christian should be preferred to a competent non-Christian because he (or she) will "lead and govern according to biblical principles."

These days, we tend to agree that there's nothing wrong with politicians being motivated by their religious values; it's become a cliche of American public life that one's faith should not be left at home. But that's a far cry from being expected to govern according to biblical principles (however understood). Elected officials in the United States swear to uphold the Constitution, not the Bible.

There's been a lot of debate this season about Dominionism and the extent to which this multiform theology of biblical governance (most usefully sorted out by the AP's Rachel Zoll) has penetrated the broad evangelical mainstream. I'd say that Jeffress' public call to vote Christian is an indication that it has penetrated pretty far.

Update: William Saletan's parsing of the Jeffress story on Slate makes much the same point. His emphasis is on the need to hold Perry's feet to the fire.

A new organization claiming to represent 2,000 evangelical chaplains in the U.S. military calls itself the Military Chaplain Alliance for Religious Liberty. What threat to religious liberty does it discern? That would be Pentagon's recent memo declaring that military chaplains can participate in private marriage ceremonies for same-sex couples in jurisdictions that recognize SSM.

To be sure, the memo explicitly says that a chaplain cannot be required to participate in such ceremonies "if doing so would be in variance with his or her religious or personal beliefs." But the leader of the group, retired Army chaplain Ron Crews, claims that pressure will be put on chaplains to perform same-sex marriages on pain of not being considered "a team player." Just imagine the scene in Congress when the first chaplain complains of being pressured to perform a same-sex marriage.

If any religious liberty issue was at stake for the military chaplaincy in the wake of the end of DADT, it was that a chaplain whose personal and religious beliefs include the right of same-sex couples to marry would be prevented from participating in a private ceremony. The Pentagon memo made clear that the chaplain would be able to follow the dictates of his or her conscience.

In other contexts--most recently regarding the New York State clerk who doesn't want to issue same-sex marriage contracts--conservative Christians enthusiastically support "conscience clauses" giving public employees the right to refuse to perform official duties. But when the shoe is on the other foot, official duties trump consciences.

Thus, Rep. Todd Akin, (R-Mo.), who belongs to the evangelical Presbyterian Church in America, asserts, "The use of federal property or federal employees to perform gay marriage ceremonies is a clear contravention of the law." Not only is it not a contravention of the law, but for a member of Congress who claims to have "consistently opposed infringement" of religious liberty, it's hypocritical to insist that it is.