Free Exercise of Religion

Arguing that, based in the natural law theory of the Founders, “the liberty of conscience protected by the Free Exercise Clause was not a license to make one’s own will the standard of justice.”

Reviewing colonial and early statehood protections for free exercise of religion and arguing that “the Free Exercise Clause should be read to protect religious exercise at least as broadly as the state constitutions.”

Reviewing “religious teaching during the founding period of America, state constitutions at the time of ratification, evidence from the first Congress and state ratifying conventions, a few early state court decisions, and various writings from the time of America’s founding” to determine original public meaning of the Free Exercise Clause. Determining that the Clause was understood to provide for “robust protection of religious liberty, with liberty valued over conformity with an objectionable law.”

Arguing that James Madison’s Memorial and Remonstrance “envisioned a comprehensive free exercise right that would encompass religious exemptions to generally applicable laws” and that this meaning was retained in the Free Exercise Clause of the First Amendment.

Arguing that, for the Founders, “religious freedom was primarily an unalienable natural right to practice religion–not a right that depended on whether a law was neutral.”

Reviewing the historical underpinnings of the First Amendment to argue that the ministerial exception is at the heart of the protections of the Free Exercise Clause as originally understood by the Founders.

“[C]ontend[ing] that the drafting of the Free Exercise Clause sheds almost no light on the text’s original meaning,” but that “[t]he records of the First Congress . . . provide strong evidence against the exemption interpretation of the Free Exercise Clause.”

Arguing that “religion” in 1791 meant “at least what we would think of today as a traditional theistic belief in a God with concomitant duties, which imply a future state of rewards and punishments.”

Reviewing the history of freedom of conscience to argue that Religion Clauses are a key part of the Founders’ vision of a limited liberal government.

Arguing, in Part III, that both the text and historical underpinnings of the Religion Clauses of the First Amendment show that these clauses did nothing to add to the powers of the Congress and instead “were meant to foreclose the possibility that Congress’s necessary and proper powers might reach the subject of religion.”

Reviewing the text, historical origins, Founding Era views, incorporation, and jurisprudence in order to offer an overview of the origins and history of the First Amendment’s Religion Clauses.

“[D]istill[ing] from the diverse theological and political traditions and experiences of the eighteenth century the most widely embraced ‘first principles’ of the American constitutional experiment – the ‘essential rights and liberties of religion,’ to use eighteenth century parlance” that form the basis of the religious liberty found in the First Amendment.

“Viewing problems of establishment and free exercise through the lens of equality of religious choice brings into sharpened focus the original meaning of the Religion Clauses, and demonstrates that nonestablishment and free exercise are but two sides of the same coin used to purchase liberty of voluntarism in the area of religion.”

Arguing that the original Free Exercise Clause did not contemplate religious exemptions to generally applicable laws, but the Free Exercise Clause as incorporated by the Fourteenth Amendment did.

Reviewing “(1) text, (2) history, (3) structure and theory, (4) doctrine and precedent, and (5) prudence, social policy and justice” to argue that the Free Exercise Clause has a broad meaning that includes requiring exemptions for religious reasons.

Arguing that there is no historical basis for a constitutional requirement of religious exemption from generally applicable laws.

Reviewing history of free exercise in the colonies before the Constitution and the debates about the Constitution’s Free Exercise Clause to argue that the clause protects religiously motivated conduct from government interference, does not extend to any secular claims of conscience, and requires religious exemptions to most generally applicable laws.