The Free Exercise of Religion: An American Perspective

Abstract:     
How should a constitutional democracy treat the religious beliefs and practices of its members? In January 2005, I gave a public lecture on this topic in Germany as part of a year-long lecture series on religious tolerance ("Ein Neuer Kampf Der Religionen? Staat, Recht und Religiose Toleranz") hosted by the Freie Universitat Berlin. The lecture was subsequently published in a European volume of comparative law edited by Matthias Mahlmann and Hubert Rottleuthner. In my contribution to this volume, the only chapter written by an American, I first sketch the history and main contours of American free exercise jurisprudence. I then consider how that jurisprudence might apply to one controversy that has generated considerable debate in Europe: laws which regulate or ban the wearing of Islamic headscarves or other conspicuously religious attire by students in public schools. In brief, I argue that while U.S. constitutional protections of religious liberty are comparatively weak, at least by certain European standards, the probable effect of American doctrines of free expression, neutrality, and anti-discrimination would be to render laws such as the French headscarf ban constitutionally suspect.

Keywords: religion, religious liberty, free exercise, accommodation, Reynolds, Cantwell, Sherbert, Yoder, Smith, Lukumi, Islamic, Muslim, headscarf, laicite, RFRA, hybrid, free expression, neutrality, anti-discrimination

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