The Principle and Politics of Liberty of Conscience

Abstract

Many on the left agree with conservatives that the current free exercise rule insufficiently protects religious minorities. The challenge is to articulate an approach that protects liberty of conscience without endangering the political equality that is essential for any democracy. This Comment argues for a conception that presumptively protects liberty of conscience while erecting democratic guardrails. This interpretation of free exercise is warranted and might even attract crosscutting support on the Roberts Court. Yet the Comment also offers reasons to be concerned that the approach could be deployed in the service of a problematic political program. Given that practical reality, lawyers and academics face a difficult choice among several strategies, all of which have serious drawbacks.

Keywords: free exercise, liberty of conscience, establishment clause, religious liberty, Fulton v. City of Philadelphia, coronavirus, COVID-19, Roberts Court