1. The First Amendment to the United States Constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. …” U.S. Const, amend. I.
2. 319 U.S. 141 (1943).
3. 326 U.S. 501 (1946).
4. For historical evidence that the framers adopted the religion clauses primarily to protect members of nontraditional religious denominations, seeMcConnell, Michael W., The Origins and Historical Understanding of Free Exercise of Religion, 103Harv. L. Rev. 1409, 1437 (1990) (many of the proponents of the Free Exercise Clause “were members of the most fervent and evangelical denominations in the nation”); Steinberg, David E., Gardening at Night: Religion and Choice, 74Notre Dame L. Rev. 987, 1021–1023 (1999) (describing the religion clauses as a reaction to state persecution of religious dissenters).
SeeSteinberg, David E., Religious Exemptions as Affirmative Action, 40Emory L.J. 77, 114–117 (1991) (arguing that the protection of minority religious groups is a central purpose of the religion clauses).
5.Tushnet, Mark, Of Church and State and the Supreme Court: Kurland Revisited, 1989 S. Ct. Rev. 373, 381, 382. Professor Tushnet's concerns about insensitivity to unfamiliar religious traditions may be a bit overstated. Small sects occasionally have won major free exercise victories. See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533-547 (1993) (striking down a Hialeah, Florida ordinance, which barred ritual animal sacrifices performed by members of the small Santeria religion).
Nonetheless, ample evidence supports Professor Tushnet's basic observation that courts often will discount unfamiliar religious traditions. See e.g. Steinberg, Religious Exemptions supra n. 4, at 111 & n. 205 (summarizing court acquiescence in the nineteenth-century persecution of Mormon Church members).
6. For a powerful advocacy of this approach, see generallyMarshall, William P., Solving the Free Exercise Dilemma: Free Exercise as Expression, 67Minn. L. Rev. 545, 546 (1983) (suggesting that courts should review free exercise claims “according to a free expression analysis, and not an independent free exercise analysis”).
7.SeeMarshall, William P., In Defense of Smith and Free Exercise Revisionism, 58U. Chi. L. Rev. 308, 319 (1991) (“Granting exemptions only to religious claimants promotes its own form of inequality; a constitutional preference for religious over non-religious belief systems.”); West, Ellis, The Case Against a Right to Religion-Based Exemptions, 4Notre Dame J.L. Ethics & Pub. Policy 591, 600 (1990) (asserting that court-mandated religious exemptions provide “special or favored treatment” to some believers “because of their religion”).
8.See e.g. City of Boerne v. Flores, 521 U.S. 507, 534-535 (1997) (a generally applicable law typically will not violate the First Amendment, even if the law conflicts with an important religious tenet); Empl. Div. v. Smith, 494 U.S. 872, 882-890 (1990) (Oregon could punish Native American believers for possessing peyote, even though the believers used peyote in religious rituals).
9.Sweet, William Warren, Religion in Colonial America131–132 (Scribner1942).
10.Cobb, Sanford H., The Rise of Religious Liberty in America112 (Johnson Reprint Corp.1970) (originally published 1902).
11.SeeMadison, James, Memorial and Remonstrance Against Religious Assessments, in The Writings of James Madison183 (Hunt, Gaillard ed., 1901).
12. Resolution of July 18, 1775, in 2 Journals of the Continental Congress 1774-1789, at 187, 189 (Worthington C. Ford ed., 1905).
13.SeeSteinberg, David E., Rejecting the Case Against the Free Exercise Exemption: A Critical Assessment, 75B.U. L. Rev. 241, 261 (1995) (“limiting the substantive protection of the Free Exercise Clause to religious expression seems arbitrary”).
14.Empl. Div. v. Smith, 494 U.S. 872, 882-890 (1990) (the Free Exercise Clause does not require that Oregon must exempt Native American believers from a state criminal law, which prohibited the possession of peyote).
15.See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533-547 (1993) (invalidating a municipal ordinance, which sought to prohibit ritual animal sacrifices).
† Associate Professor, Thomas Jefferson School of Law, San Diego, California. B.A., Northwestern University, 1982; J.D., Stanford Law School, 1986.
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