Author ORCID Identifier

0000-0001-8929-0267

Document Type

Article

Publication Date

2024

Keywords

Religious freedom, Supreme Court, First Amendment, Establishment Clause, Free Exercise Clause, Religious symbols, Neutrality, Schools

Abstract

While loud criticisms of religion continue to clatter in the media and the law reviews, the U.S. Supreme Court has led a great awakening of American religious freedom. In more than two dozen cases since 2011, the Court has used both the First Amendment and federal statutes to strengthen the rights of religious organizations to make their own internal decisions about employment and employee benefits. The Court has held that some forms of government aid to religion and religious education are not only permissible under the Establishment Clause, but also required under the Free Exercise and Free Speech Clauses. The Court has used the Free Exercise Clause to enjoin several public regulations and policies that discriminated against religion, that penalized parties for taking religious stands, or that coerced parties to act contrary to their conscience. The Court has strengthened both the First Amendment and statutory claims of religious individuals and groups to gain exemptions from general laws that substantially burdened their conscience. The Court has used religious freedom statutes to give new protections to Muslim prisoners and insisted that death row inmates have access to their chaplains to the very end. The Court has even allowed the collection of money damages from government officials who violated individuals’ statutory protections of religious freedom.

These two dozen recent cases signal a marked return to America’s founding axiom that religious freedom is the first freedom of our constitutional order, not a second class right. The eighteenth-century founders’ vision was that religion is more than simply another form of expression and association; it deserves separate and special constitutional treatment. The founders thus placed the guarantee of freedom of religion before the freedoms of speech, press, and assembly in the First Amendment. That gave both religious individuals and groups special protections for their faith claims. All peaceable exercises of religion, whether individual or corporate, private or public, traditional or new, popular or reviled, properly deserve the protection of the First Amendment. The current Supreme Court has seized on this traditional teaching with new alacrity.

First Page

44

Publication Title

Journal of Christian Legal Thought

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