Free Exercise Claims Research Articles

Unequal Land: Towards Full Recognition of Indigenous People’s Religious Rights

Indigenous people face disparate treatment regarding religious free-exercise claims in the United States court system. Specifically, courts misconstrue native religious practices and hold native religious practitioners to a higher standard of proof than practitioners of mainstream religions in their free-exercise claims. This Article analyzes the history of oppression of indigenous people in the United States and the congressional intent to remedy such oppression through legislation. Further, this Article argues that despite Congress’s efforts to remedy the oppression of indigenous peoples, courts still utilize a problematic analysis of indigenous free-exercise claims. To resolve the inconsistent treatment between native and mainstream religious practitioners, this Article argues that courts should do three things when analyzing an indigenous free-exercise claim: (1) presume indigenous peoples suffer subjective harm from the government action at issue; (2) apply the law through an anti-subordination lens; and (3) broadly construe the Religious Freedom Restoration Act.

Ecoworship and Federal Environmental Law


 
 
 As the growing land stewardship movement has joined with rising evangelical environmentalism, religious worship has intersected with ecological protection to spark the rise of a new variety of ecoworship. Given the U.S. Supreme Court’s recent willingness to expand constitu- tional protections for religious exercise and trim bulwarks against Establishment Clause challenges, religious claimants now have bolstered powers to assert exemptions from governmental mandates based on their free exercise of faith. The growing role of faith-based environmentalism and institutional religions in private environmental protection will likely lead to similar claims for religious exemptions for pro-environmental activism based on faith. Most legal scholarship so far has squarely focused on the general foundational question of how federal and state constitutional laws apply to protect religiously motivated actions both within and outside environmental law.
 This Article takes a different tack. Federal environmental law is over- whelmingly statutory, and state environmental laws rely on a similar base. It is time to re-read these statutes through the newly expanded constitutional lens. This path yields two notable results. First, the increased accommodation for Free Exercise claims and revamped Establishment Clause parameters will inevitably shape the way that courts will interpret environmental statutes that impinge on religious activities. This interpretive tendency has a deep historical provenance in federal and state courts, although it is difficult to extract from the outsized historical shadow of Holy Trinity Church v. United States. Second, an altered interpretation of federal statutory terms through the new religious exercise lens could grant special status to proactive environmental initiatives impelled by religious beliefs, as essentially protected environmental worship. This reinterpreted statutory language could expand standing for certain claimants raising federal statutory claims, force the federal government to reassess the way it selects clean-up remedies or environmental permit limits in certain contexts, redefine the scope of environmental justice policies, and alter the degree of regulatory limitations on environmentally protective uses of land by religious actors.
 
 

Religious Exemptions

Religious Exemptions

Constitutional Law and the Culture Wars: When Religious Liberty and the Law Conflict, Which Should Prevail?

Although the Supreme Court ultimately decided to pass on the hard questions posed by Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), the case offers a prime opportunity to explore a type of clash between religious liberty and the law that has fueled a great deal of public debate in recent years. The religious liberty claim in the case epitomizes what Yale Law Professors Douglas NeJaime and Reva Siegel have called “complicity-based conscience claims” – claims based on “religious objections to being made complicit in the assertedly sinful conduct of others.” To help answer when, if ever, today’s complicity-based conscience claims should take precedence over conflicting law, this Essay closely examines the religious liberty claim raised, but not decided, in Masterpiece Cakeshop. Part I lays the groundwork for that examination with a brief account of the Supreme Court’s approach to the Free Exercise Clause over the years. In particular, after discussing a 1990 Supreme Court decision, Employment Division v. Smith, that interpreted the Clause in a manner that rendered it much less protective of religious liberty than it had been under the Court’s prior interpretation of the Clause, I call attention to several post-1990 developments that have diminished Smith’s practical significance and breathed new life into the Court’s pre-Smith approach. Part II uses Phillips’s free exercise claim in Masterpiece Cakeshop to illustrate the shortcomings of complicity-based conscience claims when analyzed from the perspective of the Court’s approach to claims for free exercise exemptions prior to Smith. I maintain that Phillips’s claim should fail under the Court’s pre-Smith approach, but I add a caveat: The Court appears likely to revisit its decision in Smith in the not too distant future. If it does revisit Smith, and if it decides to overrule it, there is reason to believe that the Court may adopt a more lenient approach to claims for free exercise exemptions than its pre-Smith approach. The Essay concludes in Part III by turning briefly to a question not implicated by the facts of Masterpiece Cakeshop itself but readily presented by a variation on those facts: If a legislature decides to create a religious exemption, is the Free Exercise Clause’s companion provision in the First Amendment – the Establishment Clause – a significant constraint?

A First Amendment Right to Burning Bush: Empowering the Free Exercise Clause to Protect Religious use of Psychedelic Drugs

If the right to freely exercise one’s religion only exists within the confines of all other enacted law, then it is hardly a right at all. This article argues that strict scrutiny should be the test for adjudicating free exercise claims, which would then allow for the religious use of psychedelic drugs. First, this article explores developments in Free Exercise Clause jurisprudence during the twentieth century by analyzing how the Supreme Court gradually weakened the free exercise right, particularly in cases relating to Native American religions, and culminating in Employment Division v. Smith. This article lays out reasons for overturning Smith and returning to the pre-Smith strict scrutiny test for free exercise claims. Finally, this article contends that, under strict scrutiny, no court could reasonably find a compelling government interest to justify a prohibition of religious psychedelic drug use. This argument is substantiated with support from modern RFRA cases, as well as prevailing research regarding the positive impact psychedelics have on mental health, which would undermine a state’s purported compelling interest in forbidding its use.

,,,Progressive Religion and Free Exercise Exemptions

Most current-day free exercise claims involve conservative causes, like the baker who refuses to make a wedding cake for a same-sex couple or an employer who refuses to provide employees with insurance coverage that includes contraceptives. These types of “refusal claims” have dominated the free exercise exemption space for many years; the Trump administration has vigorously reinforced this narrative of religious freedom. In response, liberals have sought to restrict exemptions, some even to the point of questioning the value of religious freedom. This article highlights the fact that there is an increasing visibility of progressive religious causes. On political issues with profound moral dimensions, such as immigration and refugees, poverty and homelessness, and care for the environment, many religious liberals have long been, and continue to be, involved in grass roots organizing, education, service, and — with greater frequency — litigation to seek religious exemptions. The visible participation of religious progressives challenges the dueling and entrenched narratives of conservatives and liberals and will likely contribute to an ever-evolving political and juridical compromise among multiple religious freedom narratives. The article categorizes claims into predominantly conservative refusal claims and predominantly liberal “affirmative” claims. Affirmative claimants seek to exercise religion without legal restraint. Affirmative acts are broader and more indeterminate than the acts involved in refusal claims, since refusal claims are generated by what the law requires while affirmative claims are guided by what a religion teaches. Cognizant of these differences, the article uncovers possible doctrinal obstacles and inequities in the way courts might address affirmative claims, particularly in connection with meeting the “substantial burden” requirement under statutes like the federal Religious Freedom Restoration Act and similar laws.

Compelling Interests and Substantial Burdens: The Adjudication of Religious Free Exercise Claims in U.S. State Appellate Courts

Conflicts occasionally arise between individuals’ religious obligations and requirements of the state. In America, these conflicts are often resolved in the courts. A major debate over religious fr...

A Fourth Amendment Framework for the Free Exercise Clause

This article proposes a paradigm for resolving disputes under the free exercise clause that is analogous to the framework used by the court under the fourth amendment when balancing privacy rights against investigatory powers of law enforcement. In its Fourth Amendment jurisprudence, the Court provides varying degrees of protection to privacy – and imposes different evidentiary requirements on law enforcement – depending on the context in which privacy is affected, the intrusiveness of a particular search, and the asserted governmental interests. For example, privacy receives the strongest protections in areas such as the home, thus requiring law enforcement to have probable cause and a warrant before conducting a search (unless an exception to the warrant requirement applies). In quasi-public spaces, such as a motor vehicle or a place of business, individuals have a reduced expectation of privacy that permits searches based on reasonable suspicion of unlawful conduct. In public spaces, such as open fields or sidewalks, citizens have little, if any, expectation of privacy, and law enforcement typically needs no suspicion whatsoever to observe objects that are placed in public view. The Court should adopt a similar framework such that the strength of a free exercise claim could vary depending on where, when, and how it is exercised. Specifically, the validity of a law interfering with religious liberty would depend on whether it:• Affects religious practices or beliefs;• Prohibits or compels conduct;• Directly or indirectly targets religious practices or beliefs;• Applies in the public or private arena; and • Advances valid and secular governmental interests.The tiered framework used in the Fourth Amendment context to balance privacy rights against the needs of law enforcement should be adopted to determine the strength of a free exercise claim in light of countervailing governmental interests. This approach would result in protections for religious liberty that are categorical in some instances and context-specific in others.

Baptizing OOBrien: Towards Intermediate Protection of Religiously Motivated Expressive Conduct

Since its groundbreaking decision in Employment Division v. Smith, the Supreme Court has maintained needlessly inconsistent standards of review for generally applicable laws that indirectly burden First Amendment–protected conduct. When a generally applicable law indirectly suppresses symbolic speech or expressive conduct, courts apply the O’Brien test, a carefully structured form of intermediate review. However, when an identical law suppresses religious conduct, under Smith, only rational basis review obtains. By applying intermediate scrutiny to laws that indirectly burden expressive conduct but a rational basis standard to laws that burden expressed belief, the Court has done exactly what it claims to be avoiding: it has subordinated religious belief to political and philosophical opinion.This Note traces the doctrinal roots of this assymetry, concluding that expressive conduct is often functionally indistinguishable from expressed belief. Acts of worship and the observance of sacrament, like expressive conduct, are the physical manifestation of deeply held, constitutionally protected beliefs. This Note then moves to two practical solutions. In the short term, creative advocates should plead free exercise and free speech claims in the alternative in an effort to obtain the heightened protection of free speech law. One example of this approach is Fifth Avenue Presbyterian Church v. City of New York, where the church argued (successfully) that allowing homeless persons to sleep on their steps was a “highly particularized, easily understood, religious and political message.” As a long-term solution, intermediate scrutiny should be the controlling standard of review, regardless of whether the font of expression is political opinion or religious conviction. An intermediate approach coheres with the original public meaning of the First Amendment and eliminates the need for the categorical exemptions that have developed under current case law.

Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny

The Supreme Court declared 30 years ago in Turner v. Safley that prisoners are not without constitutional rights: Any restriction on those rights must be justified by a reasonable relationship between the restriction at issue and a legitimate penological objective. In practice, however, the decision has given prisoners virtually no protection. Exercising their discretion under Turner, correctional officials have saddled prisoners’ expressive rights with a host of arbitrary restrictions — including prohibiting President Obama’s book as a national security threat; using hobby knives to excise Bible passages from letters; forbidding all non-religious publications; banning Ulysses, John Updike, Maimonides, case law, and cat pictures. At the same time, the courts have had no difficulty administering the Religious Land Use and Institutionalized Persons Act (RLUIPA), which gives prisons far less deference by extending strict scrutiny to free exercise claims by prisoners. Experience with the Turner standard demonstrates that it licenses capricious invasions of constitutional rights, and RLUIPA demonstrates that a heightened standard of review can protect prisoners’ expressive freedoms without compromising prison security. It is time for the Court to revisit Turner.

Untangling the Dynamics of Judicial Decision Making and Inmates’ Free Exercise Claims

The federal courts have played a central role in establishing important rights for inmates, including the Free Exercise of religion. However, there is little empirical research on the nexus between court decision making, inmates’ Free Exercise claims, and correctional policies/practices. This research is an attempt to understand this decision-making dynamic by using a sample of 330 federal cases from 2000 to 2007 to examine legal and nonlegal factors that are suspected to affect Free Exercise claims. Importantly, security concerns and legal precedents are among the strongest predictors of whether courts will find in favor of inmates who make Free Exercise claims.

Protecting Free Exercise of Religion under the Indian and the United States Constitutions: the Doctrine of Essential Practices and the Centrality Test

Abstract Free Exercise of Religion is a protected constitutional right under the democratic constitutions of both the biggest democracy in the world ie India and the most powerful democracy in the world ie United States of America. Despite textual similarities in the free-exercise clauses of Constitutions of both of these democracies, there is a big difference in the standards of review whereby free exercise claims are judicially reviewed by their re­spective Supreme Courts. Whereas the US Supreme Court does not give much weight to the sincerity of the religious belief and employs the ‘religion-neutral’ test, the Supreme Court of India gives due weight to the sincerity of the religious belief and employs a ‘reli­gion-central’ test known in Indian free-exercise jurisprudence as the Doctrine of Essential Practices. However, a closer examination of judicial opinions on the point discloses that sincerity of religious belief is not entirely unimportant in US free-exercise jurisprudence but still is not given the kind of importance that it is given in India - a nation that is and has historically been religiously diverse. This paper closely examines the free-exercise jurisprudence as developed by the respec­tive Supreme Courts and argues that in view of the changing religious diversity in the United States perhaps time has come to re-examine the reluctance of the American courts to give its due weightage to the sincerity of religious belief while judicially reviewing free-exercise claims. Relying on several judicial opinions of the US Supreme Court and its sub­ordinate courts in the US and by demonstrating their factual and doctrinal equivalents in the Supreme Court of India, this paper argues that free-exercise clauses of both the US and Indian Constitutions protect not just the right to believe in whichever religion an indi­vidual chooses but also acts in pursuit of religion. The belief-act distinction - an idea at the core of much of US free-exercise jurisprudence is not what is truly protected by the free-exercise clause. What is protected indeed are the acts done in pursuance of religious belief. A line has to be drawn between the acts that are sincerely done in pursuance of religion and those that are not. This line has to be drawn by the Courts on a case to case basis. And that is where US free-exercise jurisprudence would be well assisted in examining Indian free-exercise jurisprudence on the point.

For-Profit Corporations, Free Exercise, and the HHS Mandate

Under the Patient Protection and Affordable Care Act, most employers must provide their employees with health insurance that covers all FDA approved contraceptive methods and sterilization procedures (the “HHS mandate”). Across the country, individuals, religious schools, and corporations have sued to enjoin the mandate, arguing, among other things, that it violates the free exercise clause of the First Amendment and the Religious Freedom Restoration Act (“RFRA”). Federal district courts have reached conflicting decisions in the 15 cases decided to date, leaving the Third, Fourth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits to sort out the complex relationship between the free exercise clause and laws, such as the HHS mandate, that are alleged to be neutral and generally applicable. But these cases are made even more difficult because of a specific claim that is raised in each case — that corporations can exercise religion under the First Amendment and RFRA. As several district courts have noted, “whether secular corporations can exercise religion is an open question.” This paper analyzes this novel and unresolved issue, arguing that, just as corporations can engage in free speech under Citizens United, for-profit corporations can exercise religion under the free exercise clause and RFRA. Although the Supreme Court has not addressed this specific issue, I argue that it has established rules for determining whether corporations can invoke particular constitutional rights and that, under these rules, corporations can invoke the protection of the free exercise clause. Several district courts have reached the opposite conclusion, while several others have avoided the issue altogether. Relying primarily on a single footnote in First Nat’l Bank of Boston v. Bellotti, the courts denying free exercise protection to for-profit corporations maintain that the free exercise of religion is a “purely personal” right that is limited to individuals and religious non-profit organizations. This paper contends, however, that a more detailed review of Bellotti, Citizens United, and the Court’s other decisions regarding the constitutional rights of corporations reveals that free exercise, like the freedom of speech, is not a “purely personal” right. Consequently, corporations — whether for-profit or non-profit — can claim its protection. Moreover, in the wake of Bellotti and Citizens United, neither the “profit motive” of a for-profit corporation nor the “religious nature” of religious organizations (e.g., churches) justifies limiting the free exercise clause only to individuals and non-profit religious organizations. Although many (perhaps most) corporations may choose not to engage in religious activities, there is no constitutional basis for precluding a priori all for-profit businesses from raising free exercise claims.

Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts

In our continuing empirical study of religious liberty decisions in the federal courts, American Muslims were at a distinct and substantial disadvantage in raising free exercise or accommodation claims between 1996 and 2005. Holding other variables constant, the likelihood of success for non-Muslim claimants in religious free exercise claims was 38 percent, while the probability of success for Muslim claimants fell to 22 percent (with the disparity being even higher among court of appeals judges). In sum, Muslim claimants had only about half the chance to receive accommodation that was enjoyed by claimants from other religious communities.Drawing on insights from legal studies, political science, and social and cognitive psychology, we discuss alternative explanations for this result, including (1) a cultural antipathy to Muslims as a minority religion outside the modern American religious triumvirate of Protestants, Catholics, and Jews; (2) growing secularism in certain sectors of society along with opposition to groups holding traditional religious values; (3) the possibility that claims made by Muslims are weaker and deserve to be rejected on the merits; and (4) the perception that followers of Islam pose a security danger to the United States, especially in an era of terrorist anxiety. As a new threat to religious liberty, the persistent uneasiness of many Americans about Muslims appears to have filtered into the attitudes of such well-educated and independent elites as federal judges.

Religion and the Secular State

The first amendment came into effect more than two hundred years ago. Changing emphases at different periods of time means that the flow of cases varies and the justices have different assumptions not only from each other but also from their predecessors. For a time, few cases were brought under either religion clause, making Reynolds (1878), a free exercise claim and Everson (1947), an establishment claim, stand out. Everson, however, ushered in a rich profusion of cases which has only recently exhausted itself with Zelman (2002) (the establishment clause does not prevent parents from using school vouchers at a religious school), and Locke v. Davey (2004) (the state constitution may deny religious claimants equal protection in apply ing for school funds). While the free exercise clause thus does not apply to the states, the establishment clause does! Nevertheless, it, along with the free exercise, offers many protections for religious denomina tions and governments, and not least to individuals making claims of conscience. Today we are in a secular age. Thus in 1990, Justice Scalia effectively de-constitutionalized claims under the free exercise clause of the first amendment in Smith. Recently, in his concurrence in Pleasant Grove, Justice Scalia urges the same treatment for claims under the establishment clause. De facto de-constitutionalization of both clauses perhaps can be read to suggest that religion is less rele vant to American society today. At first members of minority religions lose their protected status under the first amendment. As proportion ally fewer people are aligned with mainstream religions, more and more people will stand alone and unprotected by the first amendment.

Inclusion, Accommodation, and Recognition: Accounting for Differences Based on Religion and Sexual Orientation

This Article analyzes the rights claims and theoretical frameworks deployed by Christian Right and gay rights cause lawyers in the context of gay-inclusive school programming to show how two movements with conflicting normative positions are using similar representational and rhetorical strategies. Lawyers from both movements cast constituents as vulnerable minorities in a pluralistic society, yet they do so to harness the homogenizing power of curriculum and thereby entrench a particular normative view. Exploring how both sets of lawyers construct distinct and often incompatible models of pluralism as they attempt to influence schools’ state-sponsored messages, this Article exposes the strengths as well as the limitations of both movements’ strategies. Christian Right lawyers’ free speech strategy - articulating religious freedom claims through the secular language of free speech doctrine - operates within an inclusion model of pluralism. This model stresses public participation and engagement with difference. After making significant advances over the past several years, lawyers have begun to employ the inclusion model with some success in the school programming domain, despite significant doctrinal and remedial limitations. At the same time, Christian Right lawyers assert parental rights and free exercise claims in curricular challenges. Such claims rely on an accommodation model of pluralism that permits selective withdrawal based on religious beliefs and thereby resists active engagement with difference. This strategy struggles in the face of a well-accepted view of civic education that values exposure to diversity - a view bound up with the success of the Christian Right’s inclusion model of pluralism. Gay rights lawyers respond to Christian Right claims by drawing on a left multicultural model of pluralism. This model constitutes lesbians and gay men as identity holders (rather than sex actors), and in doing so succeeds in justifying the inclusion of sexual orientation in programming that prioritizes diversity. The left multicultural claim stalls, however, when it demands the state’s affirmative cultivation of respect by asserting students’ rights to gay-inclusive instruction. In the end, both the Christian Right and gay rights movements make important advances yet face significant tensions as they craft doctrinal claims that operate within competing models of pluralism.

Polygamists Out of the Closet: Statutory Prohibitions Against Polygamy are Unconstitutional Under the Free Exercise Clause as Currently Interpreted

The Romer v. Evans colloquy between Justices Kennedy and Scalia over the applicability of the nineteenth century polygamy cases to the more current debate over gay rights and same-sex marriages was of more than academic interest to the estimated 25,000 to 50,000 Fundamentalist Mormon practitioners of polygamy, as well as the nearly 1,000 Christian polygamists, and Islamic and African practitioners of polygamy. The degree to which divergent religious practices will be accommodated is of increasing importance in a nation where the variety of religions is changing and expanding from the once overwhelmingly Protestant Christian colonial era. Part I of this Article first discusses at the Romer v. Evans colloquy. Part II briefly explores the history of the mainstream Mormon Church including its adoption and later repudiation of polygamy. Part II also examines non-Mormon polygamy. Part III considers the scriptural basis for polygamy. Part IV analyzes four nineteenth century cases that still apparently stand as anti-polygamy precedent. Part V explores modern Free Exercise Clause jurisprudence and legislation. Part VI argues that the Free Exercise Clause protects religiously motivated polygamy for two separate but interrelated reasons. First, because marriage is a fundamental right, the situation presents a hybrid claim of interference with a fundamental right as well as a Free Exercise claim. Second, under Church of the Lukumi Babalu Aye v. City of Hialeah, the prohibitions are not of general applicability but rather are aimed at a specific religious practice because they are born of antipathy to the underlying religion.

When Religious Practices become Legal Obligations: Extending the Foreign Compulsion Defense

Can a man excuse his practices to the contrary [of the law] because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become alaw unto himself.In 1990, the Supreme Court faced the Free Exercise claim of Alfred Smith and Galen Black, both of whom were denied unemployment compensation because they had been fired for misconduct. Smith and Black, however, argued that such a denial violated their First Amendment rights because the alleged misconduct—smoking peyote—was part of a Native American Church ceremony. Overturning the Oregon Supreme Court, the Court struck down theSherbertbalancing test, arguing that an individual cannot excuse himself from a law merely because it “contradicts” his “religious convictions.” To do so, the Court continued,would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.Such a conclusion would “contradict[] both constitutional tradition and common sense.”This article explores whether United States law, in actuality, does not allow individuals to become “laws unto themselves.” While legal scholars in exploring this question have typically focused on the Supreme Court's decision inBoy Scouts of America v. Dale, this article will focus on a more obscure and rarely discussed area of United States law: the foreign compulsion defense. I will argue that it is the foreign compulsion defense which demonstrates that the law does allow individuals to raise themselves above facially neutral and generally applicable laws when they are faced with an irreconcilable legal conflict between foreign and domestic law.

Academic Accommodations for Religious Beliefs: Avoiding Religious Discrimination

INTRODUCTION: THE FREE EXERCISE CLAUSE The First Amendment to the Constitution of the United States forbids Congress from making any law that establishes a religion or prohibits the free exercise thereof.1 At a minimum, the First Amendment guarantees that the government may not establish a state religion or a religious faith or coerce anyone to support or participate in religious activities.2 The guarantee to be free from religious participation is commonly known as the “free exercise clause.” The free exercise clause, like all federal constitutional provisions, is binding only on the actions of federal, state, or local government. All public institutions must comply with the free exercise clause, but in general, private or nongovernmental educational institutions are not held to the strictures of the First Amendment. However, state laws may require private institutions to abide by free exercise principles. Ordinarily, in order to establish a free exercise claim, the claimant must demonstrate that the government has, by rule or policy, placed a significant burden on a practice that is sufficiently related to the claimant’s sincerely held religious beliefs.3 A significant burden is one that is “substantial” or “undue.”5 A burden that is truly prohibitive or punitive is especially suspect and likely to trigger the free exercise clause. In addition, the belief must be “sufficiently related” to the claimant’s religion. Some courts have interpreted the term “sufficiently related” to mean central to or mandated by the religion rather than simply motivated by the religion.6 Finally, only beliefs rooted in religion are protected by the free exercise clause.7 Religious beliefs need not be acceptable, logical, consistent, or comprehensible to others Jennifer Watson, JD, is senior legal staff associate at the University of Colorado Health Sciences Center, Denver, Colorado. Christina Robohm, MS, PA-C, is the director of admissions at University of Colorado Health Sciences Center, Denver, Colorado.

The Equal Protection of Free Exercise: Two Approaches and their History

Contrary to critics of the Supreme Court's current equal protection approach to religious liberty, this Article contends that, from the very first federal free exercise cases, the Equal Protection and Free Exercise Clauses have been mutually imbricated. The seeds of an equal protection analysis of free exercise were, indeed, planted even before the Fourteenth Amendment within the constitutional jurisprudence of the several states. Nor, this Article argues, should equal protection approaches be uniformly disparaged. Rather, the drawbacks that commentators have observed result largely from the Supreme Court's application of an inadequate version of equal protection that ignores the lessons that the Fourteenth Amendment taught about the nature of group classification and instead, by emphasizing the individual in isolation, downplays her free exercise claims. Considering this tendency within the context of current theories of group rights and antidiscrimination law, the Article concludes that we should resuscitate the now neglected, alternative strand of an equal protection approach to free exercise.