Religion Law Commons^™

Speech And Exercise By Private Individuals And Organizations, Kent Greenawalt

Faculty Scholarship

A central issue about redundancy concerns how far the exercise of religion is simply a form of speech that is, and should be, constitutionally protected only to the extent that reaches speech generally. Insofar as a constitutional analysis leaves flexibility, we have questions about wise legislative choices. To consider these issues carefully, we need to have a sense of what counts as relevant speech and the exercise of religion. That is the focus of this article.

It addresses the basic categorization of what counts as “speech” for freedom of speech and what counts as religious exercise when each is engaged …

More Is Less, Philip A. Hamburger

Faculty Scholarship

Is the First Amendment's right of free exercise of religion conditional upon government interests? Many eighteenth-century Americans said it was utterly unconditional. For example, James Madison and numerous contemporaries declared in 1785 that "the right of every man to exercise ['Religion'] ... is in its nature an unalienable right" and "therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society." In contrast, during the past forty years, the United States Supreme Court has repeatedly conditioned the right of free exercise on compelling government interests. The Court not merely qualifies the practice of the …

Religion And The Rehnquist Court, Kent Greenawalt

Faculty Scholarship

This summary Article pays predominant attention to what the Rehnquist Court has altered. It slights a significant range of continuity. That includes the Court's strong rejection of laws that discriminate among religions or that target religious practices and the Court's inhospitable response to religious exercises that are sponsored by public schools. Although "continuity" may be a misleading term for subjects a court has not addressed, the Supreme Court has not touched the law regarding judicial involvement in church property disputes since Rehnquist became Chief Justice, and nothing it has decided presages an obvious shift in that jurisprudence.