Frederick Mark Gedicks,
The Permissible Scope of Legal Limitations on the Freedom of Religion or Belief in the United States,
19 Emory Int'l L. Rev.,
Available at: http://digitalcommons.law.byu.edu/faculty_scholarship/307
religion clauses, free exercise, establishment, religious freedom, limitations law
This article summarizes the law of legal limitations on religious freedom in the UnitedStates, including sources and hierarchies of applicable law, structural limitations on religious freedom, grounds for limiting such freedom, an analytical description oflimitations, and background influences on limitations law, and applies this law to hypothetical situations.
Federal judicial decisions interpreting the Religion Clauses are the principal source oflimitations law in the United States. RLUIPA and RFRA, federal anti-discrimination statutes, and executive orders are other important sources of religious freedom law. State constitutions, statutes, and regulations are important sources law when federal sources are absent or inapplicable. International human rights law plays virtually no role in the construction of limitations law in the United States.
Structural limitations on religious freedom in the United States include a commitment to the separation of church and state, which permits and sometimes requires disadvantageous treatment of religion, and dilution of the church autonomy doctrine, which formerly protected a strong group right of internal church self-government.
Since the Supreme Court's Smith decision, the Free Exercise Clause has protected against intentional government burdens on religious liberty, but not against incidental burdens; government action that purposely targets religious activity for a regulatory burden is constitutionally invalid, whereas government action that burdens religious activity along with similarly situated secular activity in pursuit of a legitimate regulatory goal, is presumptively valid. Although this leaves freedom of religion exposed to government insensitivity or indifference, the equality-shaped contours of constitutional doctrine in the United States buffer religion from such burdens by enabling believers in many circumstances to claim the same protections enjoyed by those committed to secular ideologies and moralities.
Three current trends are likely to undermine development of strong substantive protection for religious freedom in the United States, the persistence of controversies posed by judicial review, the revitalization of judicially enforced federalism norms, and the increase in religious diversity in the United States.
19 Emory Int'l L. Rev. 1187