Law Commons^™

The Second Adoption Of The Free Exercise Clause: Religious Exemptions Under The Fourteenth Amendment, Kurt T. Lash

Law Faculty Publications

This Article explores the proposition that the Free Exercise Clause was adopted a second time through its incorporation into the Privileges or Immunities Clause of the Fourteenth Amendment and that the scope of the new Free Exercise Clause was intended to include protections un-anticipated at the Founding. Contrary to Jeffersonian notions of separate spheres, the nation by the time of Reconstruction had experienced decades of clashes resulting from the overlapping concerns of religion and government. In particular, the suppression of slave religion called into question the government's power to interfere, even indirectly, with legitimate religious exercise. Accordingly, the Privileges or …