Nineteenth‐Century Free Exercise Jurisprudence and the Challenge of Polygamy: The Relevance of Nineteenth‐Century Cases and Commentaries for Contemporary Debates About Free Exercise Exemptions

Abstract

Does the Free Exercise Clause of the U.S. Constitution require judges to exempt religious objectors from the application of nondiscriminatory and otherwise applicable laws? Over the last twenty years, judges and academics have debated fiercely whether the Clause should be interpreted to provide religiously observant citizens with a right to “free exercise exemptions.” The debate has led indirectly to a new interest in nineteenth-century views on free exercise jurisprudence. In this Article, I will examine the scholarship on nineteenth-century free exercise jurisprudence to date and ask what it adds to our understanding of the Clause and the question of exemptions.

Keywords: Free Exercise Clause, Exemptions, Religious Objectors, Free Exercise Jurisprudence