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Belmont Law Review

Authors

John Fahner

Abstract

Unfortunately, the modern Free Exercise Clause doctrine favors a progressive interpretation concerned more with efficiency and practicality than meaningful protection of conscience. Individual liberty of conscience, once present in the American legal understanding of free exercise, is no longer a concern of the First Amendment. A truly panacean remedy requires an introspective look into the foundations of the Free Exercise Clause and a careful evaluation of the justifications for the jurisprudential departure therefrom. To that end, this note seeks to reinforce the importance and historical understanding of the Free Exercise Clause and highlight the incongruities of the modern doctrine in comparison. Thus, part I undertakes a review of the Free Exercise Clause as understood at the time of the Founding. This review, though not exhaustive, is sufficient to provide the proper lens through which to view the flaws of the modern Free Exercise Clause and the foundations upon which new doctrine must be built. Part II provides a critical analysis of the Supreme Court’s free exercise jurisprudence and its relatively recent evolution into the singular form this note will refer to as the Smith doctrine. However, highlighting the theoretical flaws of doctrine is not enough, nor does it provide an adequate understanding of the current state of free conscience in free exercise law, and, accordingly, this note will focus on illustrating its effects prominently on display in recent state and federal litigation. Therefore, part III discusses the position of today’s free exercise claimant and the stark inability of the Free Exercise Clause to provide meaningful protection. Part IV seeks to provide a workable alternative to the Smith doctrine that respects individual religious autonomy while recognizing practical necessity in our heterogeneous society. Part V addresses the Religious Freedom Restoration Act, a separate but very much related part of the broader free exercise landscape, as well as the Supreme Court’s recent decision in Burwell v. Hobby Lobby, which greatly affected its interpretation. Finally, part VI strives to make a cogent argument for the recognition of corporate free exercise rights under the First Amendment. Overall, the principal goal of this note is to inject life into what is now a stale free exercise debate and advocate for a meaningful reinterpretation of the Free Exercise Clause that respects its historical significance in the First Amendment. This task is essential for the continued protection of free conscience and religious liberty, for “[o]nce established, religious intolerance tends to be self-sustaining...So every generation must nurture and pass on the commitment to religious liberty. Grappling with the difficult and controversial issues of religious liberty is part of that responsibility.”

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