Blog post, “The Incredible Shrinking Free Exercise Clause“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America

Ledewitz, Bruce

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Duquesne University: Digital Commons

Duquesne University Duquesne Scholarship Collection Hallowed Secularism The Collective Works of Bruce Ledewitz, Adrian Van Kaam C.S.Sp. Endowed Chair in Scholarly Excellence and Professor of Law 1-3-2011 January 3, 2011: The Incredible Shrinking Free Exercise Clause Bruce Ledewitz Duquesne University, ledewitz@duq.edu Follow this and additional works at: https://dsc.duq.edu/ledewitz-hallowedsecularism  Part of the Constitutional Law Commons, and the Law and Philosophy Commons Repository Citation Ledewitz, B. (2011). January 3, 2011: The Incredible Shrinking Free Exercise Clause. Retrieved from https://dsc.duq.edu/ledewitz-hallowedsecularism/492 This Article is brought to you for free and open access by the The Collective Works of Bruce Ledewitz, Adrian Van Kaam C.S.Sp. Endowed Chair in Scholarly Excellence and Professor of Law at Duquesne Scholarship Collection. It has been accepted for inclusion in Hallowed Secularism by an authorized administrator of Duquesne Scholarship Collection. For more information, please contact beharyr@duq.edu. Title: The Incredible Shrinking Free Exercise ClauseDate: 2011-01-03T16:14:00.002-05:00 1/3/2011—We don’t know who will win the case aboutanti-homosexual protests at military funerals that was arguedon October 6. The Supreme Court will probably rule sometimethis Spring. But we already know the loser—-the Free ExerciseClause of the First Amendment.The case, Snyder v. Phelps,pits the right of protest by Westboro Baptist Church againstfamily privacy rights. The family sued the Church and won$7.9 million in compensatory and punitive damages, which waslater reversed by the Fourth Circuit Court of Appeals on theground of freedom of speech. (The protesters stayed on publicproperty the entire time of the protest).While probably mostlaw professors, myself included, believe that the Court mustrule for the Church, there is precedent for upholding privacyrights even against protests on public property if a familyhome is targeted. The problem is it is difficult to see how aruling based on privacy could possibly be limited.Nevertheless, the free speech aspect of the case is not themost important thing in terms of the Constitution. Theimportant question is how this became a free speech issue atall. During oral argument, counsel for the Church, who isalso the daughter of the pastor, made it clear that theseprotests are held to promote a religious message. Theprotesters are giving a warning of God’s wrath for the sin ofhomosexuality and they feel they are religiously bound todeliver that message.Thus the case seems tailored made for aclaim under the Free Exercise of Religion Clause of the FirstAmendment. And the Church did in fact raise that defense, butthat claim not only added nothing to the free speech claim,the religious claim was probably pretty weak.The problem isthat the Supreme Court held in 1990, in Employment Divisionv. Smith, that religious belief is never a defense to theviolation of generally applicable law, that is, law that isnot aimed at religion. Thus, for example, during Prohibition,religious believers requiring wine for religious ceremonies,such as communion, would have no constitutional right to anexception from the general ban on alcohol.The odd thing is,many constitutional rights, for example free speech, can beasserted against generally applicable laws. So, a law thatbanned all gatherings of more than 20 people, whether for aparty or for a demonstration, could be challenged as aviolation of the right of free speech and assembly, but notas a violation of the right to religious worship. Or, as inan actual case, parents might have a right as parents to keeptheir children from required education past a certain age,but there would not be a specifically religious right to dothat.So there is a hierarchy of rights in which,surprisingly, religion is a minor right. There is nothing inthe Constitution to justify this second class status. Nor isit clear why the Court treats religious claims as soinsubstantial.

January 3, 2011: The Incredible Shrinking Free Exercise Clause

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January 3, 2011: The Incredible Shrinking Free Exercise Clause

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