Free Exercise and the Redistribution of Liberty

Abstract

For more than fifty years, constitutional liberty doctrine has denied that people are entitled to the resources they need to exercise their liberty. This rule reflects a market-based theory of liberty, which assumes that access to the free market is sufficient to secure individual freedom. Recent free exercise doctrine has unsettled this longstanding vision of constitutional liberty. In recent years, the Supreme Court has increasingly found that religious litigants are entitled to state funding to support their religious exercise. This doctrinal shift, however, has been selective. Free exercise cases continue to invoke market logic to measure—and thereby obscure—the costs that religious liberty imposes on others. The result is a deep doctrinal asymmetry: free exercise law provides benefits to religious liberty beyond the market, but measures the costs of religious liberty within the market. Often, it does so within a single opinion.

Free exercise doctrine’s selective market logic is a powerful tool of redistribution. By constitutionalizing access to state resources for religious liberty—but not other forms of liberty—free exercise cases reallocate public benefits toward religious liberty and away from nonreligious liberty claims. In practice, this redistributes resources toward conservative religious actors and away from marginalized groups like women, LGBTQ+ people, and people of color. Because there is no principled reason why nonreligious liberty should not also require resources, free exercise doctrine ultimately redistributes liberty itself. This Article identifies this unjustified redistribution of liberty and proposes a more equitable, transparent, and democratic approach to distributing resources and liberty.

Keywords: constitutional law, religion, free exercise, liberty, LGBTQ+, gender, equality, Fourteenth Amendment, First Amendment, Law and Political Economy