In the coming weeks, with Amy Coney Barrett now nominated to the Supreme Court, we are sure to hear a lot about “religious freedom.” Much of what we hear and read will link religious freedom to the conservative politics of the Republican Party. But the principle of religious freedom is by no means the sole domain of “conservative politics,” nor is it owned and operated by Republicans alone.
It is a non-partisan principle, a two-edged sword, so to speak, that cuts against and scrambles the nice, neat categories of the hyper-partisan politics of our day. This becomes clear if we look at its recent emergence onto the political scene and then at the full range of its potential applications.
The principle of religious freedom was set forth, of course, when the framers enshrined it in the First Amendment of the Constitution. There it stands as the so-called First Freedom, taking the lead among a litany of freedoms (speech, the press, assembly, and petition). It is expressed in the words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
This brief formulation has vexed lawyers, judges, and legal scholars ever since, as they try to balance its two clauses, the establishment clause and the free exercise clause. But two centuries of legal argument took on a special urgency rather recently, when the Supreme Court handed down its notorious, much disputed Employment Division, Department of Human Resources of Oregon, v. Smith (1990).
"Religious Freedom: A Non-Partisan Principle for Hyper-Partisan Times."
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— McGrath Institute (@McGrathND) October 6, 2020