“A dangerous movement, undetected by many, is now challenging and eroding our great tradition of religious freedom,” said Attorney General Jeff Sessions this week, announcing the formation of a Justice Department task force devoted to defending religious liberty.

The movement “must be confronted and defeated.” Sessions added, painting a grim picture in which ministers were afraid to preach the word of God, religious organizations were labeled as hate groups for espousing traditional morality, and — famously — a baker was sanctioned by Colorado for refusing to create a cake for a gay couple’s wedding.

But that baker recently won his case before the Supreme Court (even if the victory was not as sweeping as religious conservatives might have hoped). Indeed, as Vox’s Tara Isabella Burton points out, religious plaintiffs seeking religious exemptions have amassed a solid record in the courts in recent years — notably in Hobby Lobby, in which the owners of the craft store chain were freed from the obligation to cover contraception in their health plan.

So why does the rhetoric of religious liberty remain so potent on the right? I spoke with Nelson Tebbe, a law professor at Cornell Law School and the author of Religious Freedom in an Egalitarian Age, about how this once-sleepy corner of the law became a flashpoint in the culture wars, about Justice Antonin Scalia’s surprising role in awakening the modern debate, and about what might happen if that Colorado baker, Jack Phillips, makes it back to the Supreme Court.

This interview has been lightly edited for clarity.

Christopher Shea

Sessions’s language was pretty strong — suggesting that Christians are second-class citizens in the US. Do you think that kind of language connects with a significant constituency?

Nelson Tebbe

I do think Sessions is speaking to a sector of the population that does feel beleaguered on account of their religious beliefs, as well as [on account of] a constellation of other sorts of cultural and social characteristics and preferences. Sessions is speaking to a real perception of a significant substratum of the American citizenry. And in a sense, our law reinforces the idea that religion has been — and could be again — a salient characteristic on the basis of which groups can be subordinated within the American populace.

What makes Sessions’s comments so interesting, however, is that we don’t normally think of mainstream Christians as the targets of that kind of subordination. In his statement, Sessions also mentions minority religious groups. They are more familiar as needing the solicitude of law and government to protect them from the vagaries of social and economic discrimination. But we don’t normally think of mainstream Christians in that way.

Think about the background facts: The Supreme Court has not decided a religious freedom case in a way that’s adverse to the interest of Christians for the past few terms. I can’t think of a single religious freedom case that they’ve lost. And the other two branches of government are currently controlled by the Republican Party, which has been consistently understanding of religious freedom — including the desires and wishes of mainline Christians.

Christopher Shea

So where is the sense of beleagueredness coming from?

Nelson Tebbe

It’s coming mostly from debates over two questions. The first is reproductive freedom for women; the second is LGBTQ rights.

Thinking about [reproductive freedom] doesn’t really clear up the mystery because there, too, it seems like religious traditionalists in America are mostly winning the fights. But there have been some decisions, especially by the Obama administration, that were protective of reproductive freedom for women in ways that set up conflicts with conservative Christians — in particular the decision by the Obama administration to interpret the Affordable Care Act in a way that requires the provision of cost-free contraceptive coverage for employees.

The second explanation, and I think the more powerful one, has to do with LGBTQ rights. Religious conservatives have lost important LGBTQ rights cases, including, most prominently, Obergefell [which established same-sex marriage as a constitutional right]. So I think that’s where a lot of the tension is coming from.

But that doesn’t clear up the mystery entirely either, because the politics of LBGTQ rights are such that Obergefell probably won’t be reversed even by a court that includes, say, Brett Kavanaugh [who is nominated to replace retiring Justice Anthony Kennedy]. And President Donald Trump hasn’t come out against gay rights, even though he has made some changes that are unhelpful to LGBTQ interests. So I think some mystery still remains as to where exactly the sense of victimization the attorney general expresses comes from.

Christopher Shea

To what extent can a Justice Department task force sway things one way or another? Isn’t this largely a matter of constitutional law, to be settled by the courts?

Nelson Tebbe

I do think the Justice Department can be very effective, including on constitutional questions, in part because the attorney general, like justices of the Supreme Court, swears to uphold the Constitution; also because a lot of these questions will never get to the Supreme Court, either because there is no one to challenge them or because they just won’t get litigated for other reasons. So I think this is an example of constitutionalism outside of the courts, and it can be very effective and very important.

Christopher Shea

Can you step back historically for a second? It seems like for a long time, religious liberty was not a very active area of the law. There were small-bore cases involving whether, say, the Amish had to keep their kids in school till they were 16. What caused this to explode into a culture war issue?

Nelson Tebbe

I’ll tell you how that history unfolded, as I see it. Before 1990, the Warren Court [during which Earl Warren served as chief justice] had developed a jurisprudence of religious freedom that was quite protective of religious minorities. The Court applied what’s called strict scrutiny to free exercise infringements.

And that was of a piece with the Warren Court’s “rights revolution” more generally, where individual rights were protected more strongly than they had been. At the same time, the Warren Court continued its strengthened establishment clause jurisprudence that was quite adamant about the separation of church and state.

In 1990, all of that changed, when the Court decided Employment Division v. Smith, about Native American use of peyote. In that case, the Court announced a new rule, which was that normally religious actors would not receive exemptions from general laws. So unless the laws were discriminating against them in some way, they wouldn’t get exemptions.

That was announced as a change in the law and understood that way. It also sparked widespread bipartisan opposition. And so in 1993, Congress did whatever it could to reverse Employment Division v. Smith by enacting the Religious Freedom Restoration Act (RFRA), which passed by overwhelming bipartisan majorities. That reflected an alliance between, on the one hand, religious groups who were protecting their interests and also their beliefs, and civil liberties groups that saw this as protecting certain vulnerable groups, namely religious minorities.

It still took a while, you might notice. It took three years for RFRA to be passed even though it had overwhelming support, and the reason is the first dynamic that I mentioned earlier: reproductive freedom. [In the early 1990s,] there was some thought that the Supreme Court was getting ready to reverse Roe v. Wade. In actual fact, it did not: It reaffirmed the central holding of Roe v. Wade in Planned Parenthood v. Casey, in 1992.

The Roman Catholic Church [was concerned that] if Roe were reversed, the RFRA could be used by women who wanted to obtain abortions; [those women might say] that they deserved a religious freedom exemption from laws that prohibited abortions.

But after Casey came out the way it did, the church no longer had any objection to RFRA. The law sailed through Congress and was signed into law by President Bill Clinton.

Christopher Shea

I take it Democrats didn’t foresee that it would be used as a weapon against contraception or gay rights.

Nelson Tebbe

No, because gay rights was not on the national agenda in the very early 1990s. What happened next was a Hawaii court found a presumptive right to same-sex marriage in a case that was litigated in the early to mid-1990s. And that case put the gay rights agenda on the national scene for the first time.

Suddenly, civil liberties groups thought, “Oh, my goodness. It may be the case that religious landlords could use the Religious Freedom Restoration Act to get exemptions from civil rights laws, if they didn’t want to rent to gay tenants on the same basis as they were renting to heterosexual tenants.” They started to realize that with an ascendant gay rights movement, the RFRA could have retrogressive effects — as indeed started to happen.

So the coalition that supported RFRA disintegrated. … And that sort of set up the contemporary dynamic where there’s tension between, on the one hand, religious freedom for mainstream Christian groups and equality law on the other hand.

Christopher Shea

That Scalia wrote the opinion in Smith, the case about Native American use of peyote, seems ironic. We think of him as a champion of religion in the public sphere, yet the decision he wrote asserted the primacy of general law over the religious exemptions.

Nelson Tebbe

There were two commitments of Scalia that were at war in that case. One was the one you mentioned. Justice Scalia was quite sympathetic to and protective of religious freedom interests.

But on the other hand, Scalia was not a fan of the Warren Court’s rights revolution. He had a jurisprudential difficulty with it, namely that he thought it gave judges too much power to strike down or create exemptions to general laws. That jurisprudential concern won out in Employee Division v. Smith. He just thought the test the Warren Court put in place gave courts too much power to act against democratic majorities.

At the time, that was seen as a conservative kind of position … but the political polarities have shifted over time. So now many progressives support Employment Division v. Smith and oppose exemptions for religious traditionalists.

I’m not one of those. Even though I consider myself an egalitarian, I think there’s a place in our law for religious exemptions from general statutes. So I support RFRA, but I don’t think it should be used as a sword to undermine civil rights protections for other vulnerable groups, rather than as a shield.

Christopher Shea

The Court has kind of punted in the last couple of cases. They didn’t squarely decide Masterpiece Cakeshop. They found some discriminatory language in Colorado officials’ discussions of the case, but they didn’t say whether the baker had the right to outright deny service to gay customers. If they had come down one way or another, would that help to cool this debate, or just inflame it?

Nelson Tebbe

The accepted liberal reaction to Masterpiece Cakeshop is that the decision was narrow and incorrect. I actually think the decision was quite broad in articulating principles of law that should guide the court in future cases, and that those principles were correct. There’s a lot to embrace in Masterpiece Cakeshop. But there is something to the idea that the Supreme Court was trying to get out of a case that was very tricky.

I think what happened was this: It only takes four votes to grant certiorari to hear a case. And we can say with some confidence who voted to hear that decision, right? It was the conservative justices who disagreed with the outcome in the court below.

That put Justice Kennedy in an awkward position. He had to decide the outcome of a case that he probably didn’t want to hear in the first place, because it pitted, on the one hand, his commitment to LGBTQ rights against, on the other hand, his solicitude for religious freedom and freedom of speech. So Kennedy was looking for a way out, and he found it in these stray comments by members of the Colorado Civil Rights Commission. That allowed him to resolve the case without setting a lot of precedent.

Christopher Shea

What broad principles are identifiable in Masterpiece?

Nelson Tebbe

First, the Court reaffirmed the idea that religious actors do not get exemptions from general civil rights statutes. At the very beginning of the opinion, Kennedy says this quite clearly — and this was a proposition that was signed on to not only by the seven justices who joined the majority opinion but also by the two dissenters: In an ordinary public accommodations case, a religious actor does not receive an exemption from a civil rights statute.

That’s the first thing. The second is that on these questions conservatives had been arguing that “dignitary harm” — the degrading of equal citizenship status of gays and lesbians — was not enough to defeat a religious freedom exemption.

They looked at Masterpiece Cakeshop and they said, “Hey, the couple in this case, [Charlie] Craig and [David] Mullins, were able to get a cake down the road with no difficulty after they were refused by Jack Phillips. So there were no economic harms to them, and unless there is tangible economic harm, the government doesn’t have a strong enough interest in protecting gay couples to defeat a religious freedom claim.”

The Court, I think, clearly rejected that position and said dignitary harm is enough to defeat a religious freedom claim. The Court had never said that before.

The third proposition is also quite helpful: Very slim evidence of discriminatory intent can be enough to hold government action unconstitutional. In previous cases, including cases involving race discrimination, stray remarks that were discriminatory by government officials were not enough to condemn government actions as being discriminatory or as violations of the equal protection clause. But in this case, the Court said that these two remarks by members of the Colorado Civil Rights Commission were enough to defeat the government action. That’s a principle that we should embrace.

Christopher Shea

If you combine Smith, the Religious Freedom Restoration Act, and Hobby Lobby, does that add up to a workable framework for religious liberty? Or is it the system broken?

Nelson Tebbe

In general, and in practice, I think the jurisprudence is pretty good. Despite what the Court said in Employment Division v. Smith, there is in most jurisdictions in the United States a right of religious people to get exemptions from general laws. And that can be very important in situations where a Muslim prisoner wants to a grow a half-inch beard despite prison grooming regulations, for example. So we need laws like that to protect religious minorities.

I would prefer if the constitutional rule were changed to reflect that ability of religious minorities to get exemptions from general laws. So I would rewrite Employment Division v. Smith … but in practice, the doctrine is fairly workable. … But the key is how the Court interprets and applies those rules. And I think many of the recent decisions were deeply misguided, including Hobby Lobby.

In that case and others, the Court did not take adequate account of the effect of religious exemptions on third parties. In Hobby Lobby, the religious actor got an exemption from a general law, but that exemption imposed costs on others — in this case, women employees or the women dependents of men employees of a major corporation. And I think the doctrine should be changed to better reflect the interests of third parties in these kinds of situations.      

So there are some changes that I would make if I were on the Court, or that I would vote for. But I don’t think the real problem is doctrinal. I think the real problem is political and interpretive.

In other cases, like Holt v. Hobbs, when the Muslim wanted to grow a half-inch beard, there is no harm to third parties.

Christopher Shea

If Masterpiece Cakeshop, or a similar case, makes it back up to the Court, do you think it will establish the principle that you cannot refuse service to gay couples because of the resulting “dignitary” harm?

Nelson Tebbe

I sure hope so. It would be hard for a court that wants to gainsay that purpose to get around that language in Masterpiece Cakeshop. However, look, I’m a realist. I understand that Justice Kavanaugh, if he becomes Justice Kavanaugh, will take a position on these questions that’s more conservative than Kennedy’s.

I don’t think there’s any doubt that it was Kennedy who insisted — he wrote the opinion — on this language about dignitary harm. I think he genuinely hopes that principle survives a changed Court. 

Elaine Showalter has been reading Philip Roth, who died this week at age 85, since his first collection of fiction, Goodbye, Columbus, appeared in 1959. She was in her first year at Bryn Mawr. A longtime professor of English at Princeton, now retired, Showalter considers Roth “a transformative artist” who belongs in the pantheon alongside Henry James, James Joyce, and Joseph Conrad.

Showalter is a feminist critic, and Roth has long been criticized for his portrayals (or non-portrayals) of women, which makes her in some ways a surprising champion of his work. But even though there are pages in his books she skips out of distaste, she says, “I don’t think that puts Roth beyond the pale in any sense at all. There are passages of great tenderness and understanding for women throughout the whole range of his novels.”

“He was a very, very moral, as well as extraordinarily erudite writer,” she says. Showalter continues to teach courses on Roth through a bookstore in Washington, DC, and the Osher Lifelong Learning Institute.

We discussed the literary “explosion” that was Portnoy’s Complaint (with its portrayal of a young Jewish man’s lusts and longings), the “nearly perfect” novel The Ghost Writer, and why feminists shouldn’t turn their backs on Roth. The conversation has been edited for clarity and concision.

Christopher Shea

What were your first thoughts upon hearing of Roth’s death? What did you feel?

Elaine Showalter

It wasn’t shock — he was 85 and in poor health, of course — but it’s a moment for grief. Such a great writer and such a writer of historical importance —an American and Jewish transformative artist. It seemed to me the end of a writer’s life that was complete. The work was complete, the life was complete. There was something about the perfection of that that brings its own satisfaction and joy, in a way. it is just so sad that we now have to write about him in the past tense.

Christopher Shea

When did you start reading Roth?

Elaine Showalter

I have been reading Roth my entire life. I started reading when Goodbye, Columbus came out in 1959. I was a freshman in college. And I read every book as it came out, pretty much.

Christopher Shea

Can you give us a sense of what it was like when Portnoy’s Complaint arrived on the scene? It was a shocking literary event.

Elaine Showalter

It was an explosion. I have to say a couple of things. It’s a book that I love, and I teach it frequently. But it has always meant more to men than to women. It is very much a book for men, and there’s never really been an equivalent written by a woman, except maybe Fear of Flying [by Erica Jong]. But of course, it is just a stunning book. It’s so gutsy and obscene and wild and outrageous in every respect.

As Roth said many times himself, obscenity was not a new thing in 1969. Lenny Bruce had been around. The sexual revolution had happened, or was happening. So it was not that Portnoy was such a shock to the community that read it. But certainly if you were a reader of a certain generation that was very close to his, or had lived through the whole period of repression that he is talking about in that novel —if you’d come from a Jewish background or any kind of a religious background — it was a liberating and outrageous and illicit and funny and hilarious book. And it still is. It has not lost any of its capacity to shock and enlighten and surprise and create indignation. And it’s a very moving book as well.

Christopher Shea

The success and scandal of Portnoy ended up shaping the way Roth wrote. He began to write about the experience of being a famous writer who had written a controversial book. Did you follow him down that path of self-referential fiction — and did you think that was a productive path?

Elaine Showalter

I did. But that [trend in Roth’s writing] wasn’t exactly a result of Portnoy. Portnoy was his fourth novel. It came out in 1969. He was at that point 39 years old, and it was written at the end of a decade that was very turbulent for history and culture. And it was a very turbulent and difficult one for him. I won’t go into all the details of his personal life, but it was a really, really difficult time.

Christopher Shea

Give us some of the details.

Elaine Showalter

The first thing that happened was he had a really terrible marriage. It was a marriage you would not wish on your worst enemy. … They spit up after two years. He was in litigation over the divorce. He was being held up for alimony, and he had a long writing block and he went into psychoanalysis. So Portnoy at the end of the ’60s was a liberating book for him as well as for his readers. He had broken through a lot of restraints. He had found a particular voice through the concept of talking to a psychoanalyst — that was the liberating thing. [The novel is written in the voice of Alexander Portnoy, who is speaking to his therapist.]

In the books that follow, he begins to build on that. But the book that really sets the course for his mature work is The Ghost Writer, which came out 10 years later, in 1979.

In my view, and in the view of many readers, it is his greatest novel, aesthetically his most perfect novel. It marked the end of one whole long phase of his career and launches him on the great long arc of the middle of his career. That’s when he adopts his alter ego Nathan Zuckerman. When he made that discovery, that really launched him as a mature artist.

Christopher Shea

What discovery? Of the Zuckerman alter ego?

Elaine Showalter

Zuckerman. He was looking for a voice. He had the tremendous idea of finding a persona, of creating a character who was him but wasn’t him, you know. He had Portnoy for a while — he had some other doubles and alter egos — but when he came up with the concept of Nathan Zuckerman, that became the medium through which he expressed himself in many of the novels of the middle of his career.

[Zuckerman] shared many of his experiences, and shared his family history, and shared his background, and had all of the memories and history that he had, but was a fictional creation. He was a persona through which Roth could project all of the kind of wild and serious and eloquent elements of his imagination — and his moral imagination. He was a very, very moral as well as extraordinarily erudite writer.

Christopher Shea

To go back to The Ghost Writer: What makes it so perfect?

Elaine Showalter

It’s an extraordinary novel. If there are any readers who are wondering where to start, that might be a good place. It’s irresistible. It’s a novel about a young man — it came out in 1979 but is set back in the 1950s — who is breaking away from his Jewish family, who are concerned that he is betraying his faith, that he is showing Jews in a bad light, that his writing is breaking faith with his community, and so on. He is struggling against that because he has a vocation to be a writer and he attaches himself to an older writer, a spiritual father —although he’s attached lovingly to his real father, just as Roth was.

I don’t want to give the spoiler, but it is wonderful. It’s short, it’s full of surprises, it has some of his most beautiful writing, some of his funniest writing, some of his most outrageous writing. Roth also is declaring his vocation as an artist, and he is committing himself to a very austere life of dedication to art.

Christopher Shea

I recently watched on YouTube an old discussion between the critic Clive James and the novelist Martin Amis about Roth. They shared the view that Roth had kind of been a little stingy with the humor after Portnoy. Did he lose comedic force? Did he trade humor for something more powerful?

Elaine Showalter

There are elements of humor through all the books — pretty much throughout, until the last stretch of books that he called Nemeses, the last shorter books, which are really all about death. There’s nothing to laugh about there. And he is dealing with death for a long part of the end of his career. So there definitely is a loss of humor. But he was getting older. He was 49 when The Ghost Writer was published, pretty far along already.

The Ghost Writer is not precisely a midpoint [in his career], but close. It definitely marked a change in the way he was going to write. But not entirely. Because some of the books that come after the Zuckerman novels — up to Sabbath’s Theater — they are funny, they are very obscene, they are very raucous and rowdy. So I think there’s a lot of that, but there’s not the kind of simpler humor of Portnoy.

Christopher Shea

Many people think that the books Roth called his American trilogy — American Pastoral, I Married a Communist, and The Human Stain — were his greatest accomplishment. The Ghost Writer aside, do you agree?

Elaine Showalter

In part. I love The Human Stain. I think that really is one of his finest books — a remarkable book, a very compassionate book. I am not such a fan of American Pastoral, which I know many people think is his greatest book. That’s because in both, Zuckerman is a kind of narrator, but in American Pastoral, he is an observer. He is outside the story. And in The Human Stain, he becomes a character and he becomes involved in the story.

The richer novels to me are the ones where he allows the narrative self to be changed by the story he is telling. I say “he” deliberately, because these are almost entirely male narrative structure — a man telling a story about another man.

Christopher Shea

So here’s the obvious question. Did you find all of the maleness, all the focus on male sexuality, limiting, or maybe suffocating — or is that a caricature of what Roth is all about?

Elaine Showalter

I wouldn’t call it a caricature. No, not at all. For many of the people who took my Roth classes, this is a strong point of view. There are certainly passages in some of the novels — not so much about sexuality but about the women who are the objects of sexuality — which I find offensive and find hard to teach. I think that Roth is certainly a writer of male experience primarily, but I don’t think that that should stop people from reading the books.

I am a feminist critic by conviction. That has been my whole career, and I have loved Roth since the beginning. He is just a great artist, and he is also a very compassionate writer. So despite the fact that there are these passages that I skip over when I’m reading, I don’t think that puts Roth beyond the pale in any sense at all. And there are passages of great tenderness and understanding for women throughout the whole range of his novels. James Joyce wasn’t perfect either.

Christopher Shea

Roth said he did not want to be thought of as a Jewish-American writer, but he returned to Jewish themes throughout his work.

Elaine Showalter

You could say he was protesting too much. I think he expressed to perfection the experience of the generation of American Jews who were assimilating rapidly. I belong to that generation. I came at the tag end of it, really.

In 1964 or ’65, Fiddler on the Roof was produced on Broadway. And Fiddler on the Roof is really a musical about intermarriage. Coincidentally or not, that was the moment when American Jews began to intermarry in great numbers, and the feeling of a very separate identity of American Jews was totally transformed. I think Roth describes that pre-Fiddler moment of separateness, and is very moving and engaging about it. I think not only people who grew up as Jews and remember that time, but any immigrant population or minority population or religious population that grew up within a separate community and then broke out of it and saw it change, I think will identify with that.

Christopher Shea

Updike, Roth, Bellow — that’s the trio that was always spoken of. Is that still an accurate view of the best American novelists of the second half of the 20th century?

Elaine Showalter

Well, maybe. But I think it’s a bit parochial. Even when that was being said, it was putting him in a fairly narrow context. I would compare him on a grander historical scale. I mean, I’m really seeing him in the lineage of Joyce, of some of the great writers of Eastern Europe whom he championed. I see him in a more global context. I also think he went beyond them both.

Christopher Shea

He was better?

Elaine Showalter

Yes, yes.