Academic journal article Albany Law Review

The Fall of Free Exercise: From 'No Law' to Compelling Interests to Any Law Otherwise Valid

Academic journal article Albany Law Review

The Fall of Free Exercise: From 'No Law' to Compelling Interests to Any Law Otherwise Valid

Article excerpt

The First Amendment explicitly allows "no law ... prohibiting the free exercise" of religion. (1) Currently, however, Supreme Court doctrine permits any law that operates to prohibit the free exercise of religion, unless that law happens to be invalid for some other reason. (2) This enormous gulf and resulting drastic dilution of free exercise protection under federal constitutional case law is the instigation for today's symposium.

The Albany Law Review is among the very oldest (3) and most distinguished law reviews in this country. (4) Among other things, it has a tradition of provocative, enlightening annual symposia, exploring crucial legal-societal issues affecting America and the world. In recent years we have had symposia on torture; on lesbian, gay, bisexual, and transgender families; on violence as a concept in international law; on judicial selection, campaign speech, and activism; on American court reliance on foreign law; and even on human cloning. (5) We are able to sponsor such symposia because of the distinguished participants who visit Albany Law School each year for the event, such as those who are with us today; and also because of the exceptional law review students who work to put these symposia together, such as this year's members and, particularly, our Editor-in-Chief Jerald Sharum and Symposium Editor Peter VanBortel. This year we will be focusing on the current constitutional status of free exercise of religion from a wide range of perspectives. To get things started, let me offer a few introductory remarks to help place our topic in context.

FIRST AMENDMENT FORMULATION

Again, the very language of the First Amendment free exercise protection is rather absolute. It simply and unqualifiedly permits "no law" that prohibits religious exercise. (6) As Hugo Black was fond of saying, '"no law' means no law." (7) But such a strictly literalist approach to the First Amendment generally--and to free exercise specifically--such an unconditional, categorical, absolutist application is hardly realistic, probably impossible, and, indeed, would be reckless to order and civility in a free society. (8)

On the other hand, it is instructive to consider revolutionary-era documents and understandings of religious liberty. Thomas Jefferson's Bill for the Establishment of Religious Freedom in Virginia is, to be sure, among the most seminal. Drafted by Jefferson in 1777 and ultimately passed into law several years hence, owing largely to the efforts of James Madison, (9) it recognized government's justified interference with religious liberty only within the narrowest confines. In Jefferson's words, which were left unchanged in the statute enacted by the Virginia legislature, "it is time enough for the rightful purposes of civil government for its officers to interfere when [religious] principles break out into overt acts against peace and good order." (10) Only "overt acts," and only when they disturbed the "peace and good order," would allow abridgement of the guaranteed freedom of religion.

Thomas Jefferson's formulation was early recognized by the Supreme Court as central to understanding the First Amendment's protection of religious liberty. (11) New York State's constitution, drafted by John Jay and adopted the same year Jefferson authored his religious freedom bill, similarly guaranteed free exercise with only narrow exceptions. (12) "[A]cts of licentiousness" and "practices inconsistent with the peace and safety of this State" were the sole limitations expressed. (13)

Several other state constitutions enacted at the time of the Revolution, among them those of Georgia, (14) Massachusetts, (15) and New Hampshire, (16) as well as the Northwest Ordinance, (17) likewise sharply restricted government's authority over religious exercise. Public disturbances, threats to safety, and other such conduct inconsistent with peaceful society were alone identified as limitations on the immunity of religious practices and duties from government interference. …

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