Emory Law Journal


The U.S. Constitution protects myriad, often intertwined, individual rights. Sometimes, protected fundamental rights collide, yet the Constitution lacks a methodology to resolve such clashes. Indeed, an internal tension exists even within the rights included in the First Amendment, as whenever the government acts to protect Free Exercise it advances religion. Rather than adopt a methodology that respects and considers all constitutional rights at issue in instances when constitutional rights are in collision, the Court has embraced Free Exercise Exceptionalism (“FEE”), a doctrine pursuant to which the Court elevates Free Exercise above all rights, including the prohibition expressed in the Establishment Clause. This FEE is evident in recent rulings.

In the 2020 Espinoza v. Montana Department of Revenue case, the Court ruled that the no-aid provision of tuition assistance programs for parents who enroll children in religious schools discriminated based on religious status rather than religious use. The Court, using a strict scrutiny standard, changed the question from whether a state may choose to fund religious activity to whether it must. A forceful dissent decried the majority opinion for holding, for the first time, that the Constitution requires the government to provide funds directly to a church. Two years later, Carson expanded Espinoza’s holding by mandating the funding of religious activities and institutions where such funding is available to nonsectarian institutions. Another forceful dissent emphasized that prohibiting a state from excluding religious schools from participating in a state tuition program made available to secular schools effects a violation of the Free Exercise Clause of the First Amendment and the breakdown of the separation of church and state. As evidenced in Carson, the consequence is hugely problematic in that the now-state-funded religious institutions, rather than be bound by general nondiscrimination laws, will be free to openly discriminate against students, staff, teachers, and parents alike.

This Article proposes a new paradigm to resolve tensions and conflicts in constitutional rights that takes account of and seeks to preserve all constitutional values. Awakening the law is a multilayered process that seeks to find justice in complex legal conflicts; it is an ongoing process that requires buy-in from all affected constituencies. The resolution of constitutional tensions requires consideration of all interests involved in a constitutional conflict. The embrace of the proposed awakened paradigm, informed by established human rights norms and the First Amendment’s own history, allows for the recognition, exposure, deliberation, and resolution of the injustices effected by FEE.