Prophylactic Free Exercise: The First Amendment and Religion in a Post-Kennedy World

Abstract

The article examines the Supreme Court’s drift, in free exercise jurisprudence, from the protection of affirmative, active, kinetic religiosity (things like expressing belief, praying, gathering for worship services, and participating in rituals and sacraments and rites) to the protection of beliefs that conflict with the strictures of generally applicable and seemingly even-handed laws — even laws that simply require state neutrality as to religion. The article calls this the drift from dynamic free exercise to prophylactic free exercise, and this drift is likely to accelerate as Justice Kennedy is replaced by a more socially conservative jurist. Under this emerging view (in a historical sense, reemerging), if I am a believer, then I am not just free to do what I please in my religious life, but also free from the application of many laws that might cause me angst because of my religious beliefs. The article also explores the premium the Court places on religious belief as a constitutionally protected interest, particularly when measured against non-belief. The new Supreme Court majority will likely hold that because the First Amendment protects beliefs and the expression of beliefs, it has no application to the absence of beliefs or their expression — in other words, to mere attitudes or disbelief. The article suggests that, in a new paradigm where belief is of a higher constitutional rank than non-belief, those who now characterize themselves as non-believers might wish to cast themselves as believers instead — not “believers” in the sense of adhering to rigid dogmas, but in the sense of having ideas and opinions about religion, spiritual matters, and how the world works. It would be harder for the Court to ignore arguments that are framed to set up a contest between or among competing beliefs about religion, all of which would implicate the First Amendment. The article therefore proposes a new vocabulary for non-adherents in the free-exercise cases to come: a vocabulary that does not passively deny the truth of perceived falsehoods, but rather aggressively expresses those beliefs about religion that may be held even by secularists.

Keywords: constitutional law, prophylactic free exercise, dynamic free exercise, free exerise, kavanaugh, kennedy, first amendment