Justifying Free Exercise Rights

Abstract

Looking at religion clause doctrine, particularly free exercise doctrine, from the perspective of the entire panoply of constitutional rights, it is hard not to be struck by what seem to be perplexing irregularities. An overview of doctrinal development in other areas, free speech and equal protection, for example, reveals fairly dramatic changes over time, a contemporary fo­cus on a limited, but shifting, set of controversial issues, and what appears to be a settled core of accepted principles. Free exercise doctrine looks very different.

Here, there have been changes in one sense. During the last half cen­tury, there have been two sharp doctrinal discontinuities. But the net effect of both-the commitment to a relatively invigorated religion clause juris prudence exemplified by cases such as Sherbert v. Verner and Wisconsin v. Yoder in the 1960s and '70s and the repudiation of that commitment in Employment Division v. Smith in 1990-leaves us largely in the same place we were before the first discontinuity occurred. Religious beliefs and speech are rigorously protected although not to any greater extent than any other subject or viewpoint of expression. Religious practice is largely un­protected except in the extraordinary circumstance when it is singled out for discriminatory treatment. While free speech and equal protection doctrines have progressed in new directions, free exercise caselaw has traveled in a circle.