Is The Free Exercise Clause Different?

Abstract

Abstract In the previous chapter I referred to “ the religion clauses” as if they constituted a unitary provision. This undifferentiated treatment may seem to overlook a critical distinction. It is conceivable, after all, that the establishment clause was a purely jurisdictional measure but that the free exercise clause was more than that. Arguing in this vein, some scholars have acknowledged the difficulty of extending the establishment clause to the states through “ incorporation” into the Fourteenth Amendment, but have argued that the free exercise clause does contain independent substantive content that can support constitutional restrictions applicable to the national and state governments. The position urged by scholars like Amar necessarily assumes a significant difference in the content and purposes of the establishment and free exercise clauses. In the modern context, that assumption seems natural enough. Judges and scholars have devoted considerable analysis, after all, to explaining how the establishment clause differs from the free exercise clause. This analysis has often depicted the clauses as not merely independent in content but as opposed in their basic purposes: The establishment clause has been understood as prohibiting ( at least in some circumstances) governmental support for or accommodation of religion, while the free exercise clause has been understood as requiring ( at least in some circumstances) governmental accommodation of religion. Extensive analysis has been dedicated to resolving, or at least reducing, this perceived conflict between the clauses.