"Fairer Still the Woodlands": Mapping the Free Exercise Forest: Review of Kent Greenawalt, Religion and the Constitution

Abstract

This Article is an appreciative review of a new masterwork on religious freedom by leading constitutional scholar, Kent Greenawalt. The book crisply summarizes the full range of founding principles of religious liberty in America – liberty of conscience, freedom of exercise, religious diversity and equality, separation of church and state, and disestablishment of religion – and calls for their proper balancing still today. It then lucidly analyzes the main American cases, statutes, and regulations that bear on the free exercise of religion. Greenawalt calls on courts to accommodate maximum expressions of religious conviction that are consistent with commitment to fairness and public welfare. He rebukes the Supreme Court’s reductionist reading of the Free Exercise Clause in Employment Division v. Smith (1990) to a guarantee of laws that are neutral and generally applicable. This new standard, still in place, fails to accommodate the need for religious accommodations and exemptions when general laws conflict with core claims of conscience and central commandments of the faith. While such accommodations of religion are now partly available through new federal and state statutes and free speech doctrines, Greenawalt urges a return to a more rigorous standard of free exercise review.

Keywords: Kent Greenawalt; First Amendment; Religious Freedom; Free Exercise of Religion; Religious Accommodation; Exemptions; Employment Division v. Smith; Religious Freedom Restoration Act (RFRA)