Protecting Religious Liberty: The False Messiahs of Free Speech ...

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Journal of Law & Politics 

Winter 2002 

Symposium 

Beyond Separatism: Church and State 

*119 PROTECTING RELIGIOUS LIBERTY: THE FALSE MESSIAHS OF FREE SPEECH DOCTRINE AND 

FORMAL NEUTRALITY 

Alan Brownstein [FNa1] 

Copyright (c) 2003 Journal of Law and Politics, Inc.; Alan Brownstein 

Introduction 

The title of this Symposium, “Beyond Separatism,” may foreshadow important changes in Religion Clause 

doctrine in the years ahead. However, it is always difficult to accurately forecast constitutional developments. 

This is particularly true if we are projecting our constitutional pre-vision beyond the doctrinal preferences of the 

current Court and into the more distant future. 

Part of the problem in predicting changes in Religion Clause doctrine should be self-evident. The constitutional 

case law grounded on a wall of separation between church and state has certainly had its share of problems. 

Some decisions seem particularly difficult to defend. The doctrinal replacement for “Separatism,” 

however, has not been tested, because it has not been formally established yet. If and when a new model is accepted, 

its utility and costs will be evaluated over time. It may be that the value of separating church and state 

will be better understood and appreciated after our society experiments with alternative doctrinal approaches and 

confronts the problems they create. 

As Justice Holmes once intimated, all life is an experiment. “Every year if not every day we have to wager 

our salvation upon some prophecy based upon imperfect knowledge.” [FN1] Constitutional law is no different. 

The core of our legal and political culture has been pragmatism and experimentation, not a commitment to unchangeable 

absolutes and fixed principles. [FN2] Nothing is, or has been, sacred in *120 constitutional law. But 

constitutional law is not always a one-way ratchet either. Sometimes what we learn from an experiment is that 

we were better off under existing doctrine and that a change was for the worse. 

In this essay, I want to critically examine two developments that have become rooted in doctrine over the 

last ten to twenty years. One is the continuing and expanding protection of religious activities under the Free 

Speech Clause of the First Amendment. The other is the growing acceptance of formal neutrality as a framework 

for protecting the free exercise of religion. Both of these developments are part of the evolving replacement 

for Separatism. The first, the subsuming of religion under the rubric of speech, has been accepted largely 

uncritically. The other, manifested by the Court's holding in Employment Division v. Smith, [FN3] received 

overwhelming criticism at first. [FN4] Over time, however, there has been greater acceptance of this approach. 

Critics, while still rejecting Smith, on its face as it were, have started to make the best of it and are trying to 

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.


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build a shield for religious practices and institutions from the bones the Court tossed to religious liberty in deciding 

that case. [FN5] 

I believe both of these developments are problematic. They are false messiahs. Evaluating burdens on religious 

practices as the regulation of speech has some virtues, but the problems with this approach may outweigh 

its benefits. Moreover, many of the purported benefits that result from protecting religion as speech are only advantageous 

when they are evaluated against the anemic free exercise regime established by the Smith decision. 

If we compare a vigorously enforced Free *121 Exercise Clause against the religion as speech model, 

the perceived utility of the latter approach dissipates dramatically. 

As for formal neutrality, I think not only that Smith is wrong, but also that it is beyond redemption. The exceptions 

identified in Smith simply do not work and cannot be justified. Attempts to protect religious liberty 

within the confines of Smith are unlikely to be successful. 

I. Are Religious Activities Speech For First Amendment Purposes? 

Many religious activities have an expressive dimension. Proselytizing is a form of expressive advocacy implicating 

the core function of the Free Speech Clause to protect persuasive speech. [FN6] Prayer is also expressive. 

While some prayer may be most accurately characterized as self-realizing or self-defining expression in that 

it does not serve any informational, persuasive, or instrumental function, [FN7] prayer is also a communicative 

mechanism that expresses and reinforces a shared reality and shared values among the members of a religious 

congregation or community. [FN8] Other forms of religious practice, such as complying with dietary rules or 

grooming standards, wearing required clothing or symbols, observing the Sabbath, and participating in any of a 

range of rituals, are conduct-intensive actions. Their purpose may not be overtly expressive, but there is a communicative 

aspect to them. If nothing else, they affirm to co-religionists and outsiders the religious identity and 

commitment of the person engaging in the religiously-motivated activity. 

For constitutional purposes, there is no doubt that many of these activities can be characterized as 

speech. This does not mean that it is always wise or appropriate to do so. Answering that question, which is 

one of the purposes of this article, requires careful consideration of the consequences of such an analysis. What 

is clear, I think, is *122 that there is enough of an expressive component to many religious activities that conceptualizing 

them as speech does not require any extension or modification of the way we conventionally define 

speech for First Amendment purposes. 

But do we really have a choice here? Don't we have to conceptualize religious activities as speech and review 

laws restricting such activities under free speech doctrine if, in fact, there is a real speech dimension to the 

religious activity? I don't think constitutional law is that objective or that rigid. The demarcation lines separating 

constitutional frameworks are more normative than this argument suggests. Not everything that can reasonably 

be characterized as speech must necessarily be treated as speech for First Amendment purposes. 

Certainly, courts do not require that all activities involving speech must be protected as speech for constitutional 

purposes. Speech is an aspect of many activities. Often the regulation of these activities by the state is 

not subject to Free Speech Clause review. Consider a straightforward example. The practice of medicine involves 

communication between doctor and patient and among medical personnel. Still, we do not review many 

laws regulating the practice of medicine as regulations of speech. This is even the case for medical regulations 

that are directed at medical communications, such as rules requiring informed consent before a medical proced- 



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ure may be performed. The absence of First Amendment review of laws regulating the practice of medicine, 

law, accounting, and other professions involving speech isn't controversial. We decide that the subject of the 

regulation is more appropriately conceptualized as medicine and law rather than speech and proceed accordingly. 

Now assume that a law is passed regulating faith or spiritual healing, the use of prayer to cure physical illness 

as an alternative to modern medical practice. Are laws directed at faith healing regulations of speech or 

regulations of an alternative form of medicine? Spiritual healing is probably more speech intensive than much 

of modern medicine, but our answer will probably not depend on the extent to which speech plays a role in the 

activity being regulated. Thus, we might still decide that faith healing should be reviewed as a form of the practice 

of medicine and not as expressive activity. A variety of factors might help us to reach this conclusion, but it 

is unlikely that the amount of speech involved in the activity would be controlling. [FN9] 

*123 Finally, consider a law regulating worship services. Worship involves a great deal of speech. But prayers 

offered in a church or synagogue are not all that distinguishable as speech from prayers that are offered to 

heal the sick in Christian Science sanitoria. Speech is a major component of both worship and faith healing. 

Moreover, just as speech in the context of faith healing can be construed to be part of an alternative form of 

medical practice, and speech can be understood to be part of, and subsumed under, the practice of law, worship 

can be conceptualized to be part of the practice of an equally distinct and specific mission or pursuit, the practice 

of religion. Speech used in religious practices can be considered religion, not speech, for constitutional purposes 

just like speech used in the practice of medicine or law can be considered medicine or law and not speech 

for constitutional purposes. This is not to say that religion can never be construed to be speech even if we want it 

to be. It is merely to recognize that religion can be legitimately understood to be either speech or religion depending 

on the values and constitutional vision we bring to the task of categorizing it. 

Why should we want to conceptualize religious activity as speech, rather than religion? One obvious answer 

for those of us who care about shielding religious practices from unjustified state interference is that we might 

extend the protection the Constitution provides to religious liberty by doing so. Maybe it is time to move out 

from under the free exercise umbrella that was so effectively shredded by Employment Division v. Smith and 

place ourselves under the sturdier canopy provided by the Free Speech Clause. As I will explain in detail as this 

Article progresses, while free speech doctrine has some limited utility for the protection of religious individuals 

and institutions, on balance, I believe the shift from a rigorously enforced free exercise and establishment clause 

paradigm to a free speech model has significant problems, some of which undermine religious liberty and equality 

in important ways. First, however, it is necessary to explain how the interplay of free speech and Religion 

Clause doctrine has developed over time. Then the consequences of the current emphasis on free speech rather 

than on free exercise doctrine can be evaluated. 

*124 A. The Early History of Religion and Speech 

Certainly, there is some historical pedigree for equating at least certain exercises of religion and 

speech. The overlap of the coverage of the Free Speech Clause and the Free Exercise Clause has been evident to 

courts since the 1930's, at about the time that judicial responsibility for the protection of expression first began 

to be taken seriously. In many of these early cases, when much of free speech doctrine was still indeterminate 

and just beginning to develop, religious speech was often the subject of regulation. Judicial decisions protected 

such expressive activities, but did not identify and pigeonhole the activity in question as either speech or reli- 



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gion. Instead, the Court's opinions suggested that the challenged laws implicated both the Free Speech Clause 

and the Free Exercise Clause of the First Amendment. 

Cantwell v. Connecticut, [FN10] one of the earliest modern cases giving meaning both to the Free Exercise 

Clause and to the Free Speech Clause, for example, involved a mixture of free exercise and free speech analysis. 

In overturning the conviction of Jehovah's Witnesses engaged in door-to-door religious solicitation, the Court 

explained: “[t]he fundamental law declares the interest of the United States that the free exercise of religion be 

not prohibited and that freedom to communicate information and opinion be not abridged.” [FN11] 

Subsequent cases of the same period, also involving Jehovah's Witnesses, recognized the same intrinsic 

overlap of the Free Speech Clause and the Free Exercise Clause regarding the public expression of religious 

messages. Murdock v. Pennsylvania [FN12] involved the application of an ordinance requiring licenses for solicitors 

to individuals going door to door distributing religious literature. In explaining his decision that this tax 

violated the First Amendment, Justice Douglas described the dual nature of the activity at issue and the constitutional 

provisions that protected it. 

This form of evangelism . . . is more than preaching; it is more than the distribution of religious literature. 

It is a combination of both. Its purpose is as evangelical as the revival meeting. This form of religious 

activity occupies the same high estate under the First Amendment as do *125 worship in the 

churches and preaching from the pulpits. It has the same claim to protection as the more orthodox and 

conventional exercises of religion. It also has the same claim as the others to the guarantees of freedom of 

speech and freedom of the press. [FN13] 

These early religious speech cases, of course, involved conventionally expressive activity that was virtually 

indistinguishable from secular speech. The Court did not intimate that other religious conduct would receive 

free speech protection. Indeed, at this time it was doubtful that many other religious practices would receive any 

serious protection under the Free Exercise Clause. Free exercise rights barely existed under the authority of 

Reynolds v. United States, [FN14] which limited this constitutional guarantee to religious beliefs, not religious 

practices. [FN15] Moreover, the Court in Murdock made it clear that it was not challenging this precedent: 

“[W]e do not intimate or suggest . . . that any conduct can be made a religious rite and by the zeal of the practitioners 

swept into the First Amendment.” [FN16] Reynolds did not extend constitutional protection to the practice 

of polygamy, and “[o]ther claims may well arise which deserve the same fate.” [FN17] 

The Court did suggest in Cantwell and Murdock that religious speech, at least time-honored and traditional 

means of communicating religious messages, would receive free exercise protection. But there is a sense in 

which this conclusion constituted a kind of constitutional slight of hand. The Free Exercise Clause would protect 

religious speech, the Court seemed to imply, only to the extent that such speech was already protected 

against abridgement under the Free Speech Clause. But if that is the case, what work, if any, did the Court's repeated 

references to the Free Exercise Clause perform in this analysis? The real foundation for the Court's holdings 

was freedom of speech. Religious liberty was *126 welcome to come along for the ride, as long as it could 

piggyback on the shoulders of freedom of speech. [FN18] 

Thus, these early cases provide little support for any expansive commitment to protecting religion as 

speech. The particular religious practices at issue were virtually indistinguishable from conventional expressive 

activities. More importantly, there was really no judicial recognition at the time that free exercise rights constituted 

a distinct constitutional interest that merited independent protection. Courts did not need to think about reconciling 

free exercise and free speech protection or to determine when an activity should be appropriately char- 



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acterized as speech or religion, because the Free Exercise Clause provided too little protection to warrant the effort. 

Constitutional law evolved substantially during the next forty years. Free speech doctrine developed into an 

extraordinary and increasingly complex set of rules and standards. Under current case law, characterizing an individual's 

activity as speech and a statute as regulating speech is no trivial constitutional matter. It invokes a 

massive doctrinal framework. 

Free exercise case law developed independently of free speech doctrine under a “separatist” regime. One 

simple rule allegedly controlled the review of all state-created restrictions on, interference with, and obstacles to 

religious practice both at individual and institutional levels. In Sherbert v. Verner [FN19] and Wisconsin v. Yoder, 

[FN20] the Court held that state action substantially burdening the free exercise of religion must be justified 

under strict scrutiny. This strict scrutiny approach, obviously inadequate to the task assigned to it, was often 

honored in the breach. Some burdens on religious practice and interference with religious institutions were successfully 

challenged. [FN21] Many more were rejected. [FN22] Most importantly, the courts have never developed 

a set of sub rules and standards to deal with the complexity *127 of the problems they confronted as has 

been done in the free speech area. [FN23] 

The Establishment Clause, also committed to the separation of church and state, was interpreted to serve 

several functions. To a significant extent, it became the vehicle for policing government conduct to guarantee 

religious equality as well as religious liberty. [FN24] Here, unlike the Free Exercise Clause, the Constitution 

was interpreted to impose prophylactic constraints on government. Because government regulations promoting 

religion and government financial support of religious institutions and practices were perceived as creating substantial 

risks of discrimination against disfavored faiths and interference with religious autonomy, both forms of 

state action were prohibited. [FN25] The doctrinal tests employed to administer this framework were more complex 

than those adopted for free exercise cases. Generally speaking, state programs funding religious institutions 

or activities were reviewed under the Lemon v. Kurtzman [FN26] test, under which subsidy systems that either 

lacked a secular purpose, primarily advanced religion, or entangled the state with religion were struck down. 

[FN27] Overt favoritism toward majoritarian faiths manifested through such practices as state-mandated prayer 

in public schools was declared unconstitutional. [FN28] 

The historical and analytic foundation of Religion Clause doctrine at this time had two related themes: the 

separation of church and state and government neutrality toward religion. The idea of separation had roots dating 

back to Roger Williams. [FN29] The more contemporary historical sources cited to support its constitutional 

legitimacy were the writings and political actions of James Madison and Thomas Jefferson. [FN30] *128 But the 

core idea of separatist doctrine as it was reflected in Supreme Court cases had a pragmatic as well as a historical 

basis. The Free Exercise Clause and the Establishment Clause of the First Amendment were both explicitly directed 

at religion. But while these constitutional phrases shared some common coverage, they also seemed to be 

pointing in opposite directions. The Free Exercise Clause prohibited government interference with religion, and 

the Establishment Clause restricted government promotion of religion. The apparent divergence of these commands 

could be expressed and unified under a single principle, however. If government could neither interfere 

with nor promote religion, how could it be involved with religion at all? Thus, the Religion Clauses mandated 

the separation of church and state. [FN31] 

Whatever the merits or problems with separatist doctrine and the quest for religious neutrality may have 

been, during this period, the Court focused on religion as a distinct constitutional interest that invoked specific 



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constitutional concerns. The dual constitutional commands necessary to achieve the separation of church and 

state were distinct from the unitary mandate employed to protect other important interests, such as freedom of 

speech and the press, because the relationship between church and state was unique. Close connections between 

government and other sources of private power, a partnership between government and the press, for example, 

might be constitutionally problematic for obvious reasons. But the pervasive role of religious belief in the lives 

of citizens, the communal nature of religious affiliation, and the perceived consequences of religious factionalism 

made the diffusion of power between secular and faith-based policies and centers of authority of paramount 

importance. 

Even the idea of neutrality reflected the special status of religion. Government neutrality toward religion 

could not be satisfied by ignoring the existence of religious beliefs and practices and their defining importance 

to individuals and communities. Neutrality under a separatist model required government to take account of religion. 

[FN32] *129 Neutrality implied a holistic attitude toward religion that in the aggregate treated religious 

and secular belief systems as equally worthy of respect, but distinguished between them in particular funding 

and regulatory circumstances, ostensibly favoring secular beliefs in the former context and religious beliefs in 

the latter. 

Finally, neutrality did not mean that the Constitution should be neutral between religion and other constitutionally 

protected interests, such as speech, and treat the former and the latter identically. The Constitution's 

commands regarding religion were active, separate, and discrete. [FN33] Religion was much more than speech. 

It was a mixture of beliefs, expression, self-defining decisions, rules of conduct, social institutions, and communities 

of individuals. As such, it deserved the special constitutional attention it received. 

B. The Inevitable Conflict Between Speech Clause and Religion Clause Doctrine 

1. The 1980's - Case Holdings and Unanswered Questions 

During the 1980's, the divergence between Speech Clause and Religion Clause case law became impossible 

to ignore. The overlap between the subjects of both constitutional frameworks was self-evident. Many religious 

activities were overtly expressive in their purpose and speech intensive in their nature. Moreover, religion was, 

obviously, a subject or viewpoint of expression. In many cases, the practice of religion seemed hard to differentiate 

from speech discussing or espousing religious beliefs. But the constitutional consequences of identifying 

regulated or funded activity as speech or religion were contradictory. The Free Speech Clause required rigorous 

review of content or viewpoint discriminatory regulations of expression. Thus, in most situations, for speech 

purposes, religious and secular expression must receive identical regulatory treatment. The Free Exercise 

Clause, however, provided greater protection for religious practices than *130 secular belief related activities; 

the Establishment Clause restricted government supported religious speech, while it permitted government expression 

of secular messages. 

Doctrinal conflict could arise in a variety of circumstances. Religious speakers might demand special free 

exercise protection against content-neutral laws restricting speech that secular speakers must obey. [FN34] Statutory 

exemptions from content-neutral regulations for religious speakers might be challenged on Speech Clause 

or Establishment Clause grounds and defended on free exercise grounds. [FN35] Restrictions on religious expression 

might be both challenged on free exercise or free speech grounds, and defended, if the speech received 

government support or communicated a message of government endorsement, on Establishment Clause grounds. 



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[FN36] 

Three cases decided in the 1980's provided initial answers to each of these three conflict scenarios. In 1981, 

in Heffron v. International Society for Krishna Consciousness, Inc., [FN37] followers of the Krishna religion 

challenged a Minnesota State Fair regulation limiting the distribution or sale of expressive materials except from 

booths that might be reserved for that purpose. To the plaintiffs, the distribution and sale of religious materials 

constituted a religious ritual, the practice of Sankirtan. Yet, the Court upheld the regulation as a legitimate time, 

place, and manner restriction on speech under the conventional, but relatively deferential, Speech Clause standard 

of review applied to content-neutral laws. [FN38] 

Later that term, in Widmar v. Vincent, [FN39] the Court evaluated a state university regulation prohibiting 

the use of university buildings or grounds “for [purposes of] religious worship or religious teaching.” [FN40] 

Pursuant to this policy, a student group of evangelical Christians was denied access to university facilities for 

meetings that would include “prayer, hymns, Bible commentary, and discussion of religious views and experiences.” 

[FN41] The Court ruled that the university had created a *131 designated public forum when it allowed 

other student groups to use its buildings for expressive activities. Accordingly, the content-discriminatory exclusion 

of the religious group was reviewed under strict scrutiny and struck down. [FN42] Eight years later, in 

Texas Monthly, Inc. v. Bullock, [FN43] the Court evaluated a Texas statute exempting “periodicals . . . 

‘published or distributed by [a religious] faith,”’ “‘consist[ing] wholly of writings promulgating the teaching of 

[the] faith”’ and books consisting wholly of “'writings sacred to a religious faith”' [FN44] from a sales and use 

tax fully applicable to secular writings. This statute was struck down as a violation of the Establishment Clause. 

These decisions form the foundation for today's accepted orthodoxy regarding the relationship between religion 

and speech. They represent the core precedent on which recent religious speech cases rely. Yet there has 

been surprisingly little critical analysis of these opinions to determine if they provide an adequate doctrinal root 

structure for the line of authority that would ultimately develop in this area. 

While the specific holdings of each of these cases may be persuasively defended, the Court's discussion and 

analysis of the relationship between speech and religion was inadequate in all three decisions. Further, the 

Court seemed oblivious to its prior decisions when it decided each subsequent case. No effort was made to 

achieve consistency or coherence. It is important to understand that when recent opinions claim to follow a developed 

line of authority in this area, they ground their arguments on weak, poorly thought out, and disjointed 

precedents. 

In Heffron, the first decision, the Court simply ignored two obvious questions: should plaintiffs' solicitation 

activities in the fairgrounds be characterized as speech rather than religious practice, and, correspondingly, why 

should the state's restrictions be reviewed under the relatively lenient intermediate scrutiny applied to content 

neutral regulations of speech rather than under the strict scrutiny review applied to substantial burdens on religious 

activities under the Free Exercise Clause. [FN45] The Court stated without explanation that, “[n]one *132 

of our cases suggest that the inclusion of peripatetic solicitation as part of a church ritual entitles church members 

to solicitation rights in a public forum superior to those of members of other religious groups [or their secular 

counterparts] that raise money but do not purport to ritualize the process.” [FN46] 

Justice Brennan, writing in dissent, recognized the blatant tension between the majority's analysis and the 

free exercise mandate “that governmental regulations which interfere with the exercise of specific religious beliefs 

or principles should be scrutinized with particular care.” [FN47] In an attempt to mitigate the impact of 



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Heffron on generic free exercise protection, Brennan suggested that the majority opinion should be read as accepting 

the Court's free exercise precedents, but holding that even expressive “‘conduct protected by the Free 

Exercise Clause,’ . . . is entitled to no greater protection than other forms of expression protected by the First 

Amendment that are burdened to the same extent” [FN48] by a law or regulation. 

While Justice Brennan recognized the problem posed in Heffron, his comments provide little assistance in 

resolving it. Expression is an intrinsic part of so many religious rituals and activities that an exception from free 

exercise protection for speech related activities could swallow much of the whole. [FN49] Without further explanation, 

however, all we know from Heffron is that free speech doctrine will displace the special free exercise 

protection religious activities receive in at least some circumstances when religious practice involves speech. 

However, the precise scope and parameters of this constitutional hierarchy is largely unexplained. 

The Court's opinion in Widmar is equally perplexing. The Court holds, correctly, that providing religious 

students the same access to university facilities for religious activities that non-religious students receive for 

secular activities does not violate the Establishment Clause. *133 Thus, the university's primary justification for 

excluding the religious club, the need to comply with Establishment Clause requirements, was grounded on constitutional 

error. 

The more difficult question is whether the restrictions on the excluded religious group should be held to violate 

the Free Exercise Clause or the Free Speech Clause. Discriminatory restrictions on acts of worship that interfere 

with legitimate state interests no more than do secular activities which are freely permitted by the university 

seem to be completely unjustified and unconstitutional violations of free exercise rights. Yet the Court 

never explains why it elects to resolve this case “on the bases of speech and association rights,” while expressing 

no opinion as to “the extent, if any, to which free exercise interests are infringed by the challenged University 

regulation.” [FN50] 

Justice White's dissenting opinion calls the majority to task for subsuming Religion Clause concerns under 

the umbrella of free speech principles prohibiting content discrimination. The explicit focus of the university's 

regulation was a prohibition on the use of university facilities for religious worship. Plaintiffs made it clear that 

they believed that a public university that allowed student groups to use facilities for general meetings and activities 

was required by the Free Speech Clause to also allow those same facilities to be used for “regular church 

services.” [FN51] To White, prohibitions on worship were clearly the domain of the Free Exercise Clause. If the 

regulation of worship and church services was to be characterized as the regulation of speech, “the Religion 

Clauses would be emptied of any independent meaning in circumstances in which religious practices took the 

form of speech.” [FN52] That result would require a fundamental reconsideration of Religion Clause doctrine. 

Unfortunately, Justice White's Widmar critique mistakenly emphasized the Establishment Clause questions 

that would arise if speech intensive religious activity were to be evaluated under the Free Speech Clause rather 

than the Religion Clauses. [FN53] In fact, of course, the *134 more profound consequences of which Justice 

White wrote would be more likely to occur in free exercise cases where religious practices under Sherbert and 

Yoder receive greater protection than related secular activities. Here, the characterization of the activity as religion, 

rather than speech, and the invocation of free exercise, as opposed to free speech requirements, is crucial. 

Only free exercise jurisprudence justifies more protective treatment for religious activities than for secular conduct. 

Free speech doctrine prohibits discrimination between secular and religious subjects and viewpoints. 

Notwithstanding White's erroneous focus on Establishment Clause issues, the majority's response to his con- 



18 J.L. & Pol. 119 

cerns was pitifully inadequate. Justice Powell catalogued the problems with White's approach. What principled 

line can be drawn between worship and conventional forms of expression such as singing, teaching and reading? 

How could courts administer such a dubious distinction? Wouldn't judicial inquiries inevitably require judicial 

entanglement in religious matters? [FN54] These are all fair questions, but they are ultimately unresponsive 

to White's challenge. White did not suggest that distinguishing between religion and speech would be easy. 

In fact, he explicitly recognized the difficulty of such an undertaking. [FN55] What White questioned was 

whether such an undertaking was avoidable - particularly if the Religion Clauses were to retain independent constitutional 

meaning and significance. To that inquiry, Powell offered no answer at all. 

*135 Justice White raised one other issue in his dissent that is relevant to the purposes of this article. White 

argued that the legislature should have a freer hand in formulating “policies that affect religion in divergent 

ways” than the Court's case law suggested. [FN56] Thus, states may accommodate religion to promote religious 

liberty in ways that are not required by the Free Exercise Clause, and states may burden religion in the service of 

Establishment Clause goals in ways that are not constitutionally mandated. Here, White argued, the university's 

attempt to further the separation of church and state by precluding organized religious worship in public facilities 

was a permissible limit on religious activities on public property, although it was not required by the First 

Amendment. [FN57] 

The majority flatly rejected this contention out of hand. The protection provided by the Free Speech Clause 

against content discrimination required the most exacting scrutiny. The state university's interest “in achieving 

greater separation of church and state than is already ensured under the Establishment Clause of the Federal 

Constitution” was not sufficiently compelling to justify its content-discriminatory regulations. [FN58] 

The Court's analysis in Texas Monthly, decided in 1989, may be the most bizarre of the three 1980's decisions, 

particularly in light of the prior two opinions. In Heffron, the Court had concluded on free speech 

grounds that “ritualizing” conventional expressive activities, such as the distribution of religious periodicals and 

the solicitation of donations, did not entitle a religious group to greater rights than those provided to secular 

speakers expressing secular messages. In Widmar, the Court had elected to use free speech doctrine, rather than 

free exercise principles, to invalidate state restrictions on the use of public buildings for worship services. Surely 

then, a law exempting from a generally applicable sales and use tax periodicals published or distributed by a religious 

faith that consisted entirely of writings promulgating the teaching of the faith should also be struck down 

as prohibited content discrimination under the Speech or Press Clause. 

The promulgation of ideas and beliefs in a book or written periodical certainly cuts close to the core of the 

“speech” and “press” rights the *136 First Amendment protects. [FN59] Moreover, the distribution of books or 

periodicals containing religious teachings, without more, seemed less clearly, or at least less intrinsically, to involve 

the free exercise of religion than the compulsory rituals at issue in Heffron or the excluded worship services 

in Widmar. The distribution of religious periodicals may serve a variety of goals, including fund raising, 

and the decision to engage in such activities may not respond to a compulsory obligation. It is difficult to conceptualize 

ritual and worship as anything other than the exercise of religion. 

Most important, there are few clearly analogous secular counterparts to religious ritual and worship, notwithstanding 

the speech dimensions of both activities. The publication of ideas in books and periodicals, however, is 

a generic activity engaged in by secular and religious groups alike for the same essential free speech purpose of 

persuading readers of the merits of the beliefs being communicated. Thus, exempting religious publishers and 

publications from tax or regulatory requirements that their secular competitors must pay or obey is a more direct 



18 J.L. & Pol. 119 

form of favoritism and creates a more pronounced distortion of the marketplace of ideas than do accommodations 

of ritual and worship. 

Yet only one justice in Texas Monthly argued that the content-discriminatory tax statute should be struck 

down as a violation of the Speech or Press Clause. [FN60] Five justices held that the preference for religious 

publications violated the Establishment Clause. Three of those justices, Brennan, Marshall, and Stevens, joined a 

plurality opinion that mentioned the Press Clause only in passing, noting that it was unnecessary for the Court to 

reach that issue. [FN61] Two concurring justices, Blackmun and O'Connor, expressed concern over the difficulty 

in harmonizing all the overlapping constitutional provisions that might legitimately be applied to the case. 

[FN62] Yet for these justices, the Establishment Clause problem clearly presented the real issue. The Press 

Clause challenge was much easier to resolve. Thus, they surmised *137 that a broader exemption including both 

secular philosophical materials and religious periodicals and respecting both Free Exercise and Establishment 

Clause values would survive constitutional review. [FN63] Neither justice seemed concerned that such a statute 

would be content discriminatory on its face, nor did they explain why they thought such a law could be justified 

under strict scrutiny review. 

With the benefit of hindsight, Justice Scalia's dissent, joined by Justices Rehnquist and Kennedy, was in 

many ways the most difficult opinion of all to understand, not only because of past decisions, but in light of the 

opinions these justices would write or join in the not too distant future. To the dissenters, content discriminatory 

accommodations for religious expression easily trumped both Establishment Clause and Speech and Press 

Clause mandates. [FN64] The tension between such a position and the analysis and holding in Widmar, of 

course, is palpable. Pursuant to this approach, the Free Speech Clause is a one-way ratchet when religious expression 

is at issue. Discrimination against religious speech is prohibited, but discrimination in favor of religious 

speech is permissible. The inconsistency of such a one-sided argument with the free speech goal of preventing 

government distortion of the marketplace of ideas becomes even more apparent when one considers later decisions, 

joined by all three Texas Monthly dissenters, that characterize religion as a viewpoint rather than a subject 

of expression. [FN65] 

The dissent's justification for such an awkward reading of the First Amendment is grounded in part on the 

need to leave some room for legislative discretion relating to religion between “the Scylla of what the Free Exercise 

Clause demands and the Charybdis of what the Establishment Clause forbids.” [FN66] It is a fair argument 

if only the Religion Clauses are in play. But Justice White raised essentially the same concern in Widmar when 

he argued that the state should be granted some flexibility in promoting Establishment Clause values beyond 

what the Constitution required. The Court responded, emphatically, that legislative amplification of Establishment 

Clause values beyond what the Constitution required could not justify content discriminatory regulations 

of speech. It is difficult to understand why a *138 similar analysis does not apply to religious accommodations 

that are not mandated by free exercise requirements. [FN67] 

B. The 1990's - The Fall of Free Exercise and the Rise of the Speech Paradigm 

In 1990, in Employment Division v. Smith, [FN68] the Supreme Court ruled that the exercise of religion received 

no constitutional protection against neutral laws of general applicability. No matter how seriously such 

laws burdened the exercise of religion they would be upheld under rational basis review. [FN69] Religious individuals 

and institutions were directed to seek relief from laws that interfered with their religious practices from 

the political branches of government. [FN70] If sought after exemptions were denied, religious parties could 



18 J.L. & Pol. 119 

choose between violating the tenets of their faith or violating the law and receiving whatever sanction society 

imposed on such transgressions. 

There were only two exceptions to this formal limit on free exercise protection. Apparently, the majority in 

Smith could not obtain sufficient support to overrule Sherbert and Yoder, so it crafted two artificial limits on its 

rule of formal neutrality. Sherbert was reinterpreted to continue to require strict scrutiny protection whenever 

state decisions involved “a mechanism for individualized exemptions” similar to the hardship exemptions that 

were granted by the state unemployment compensation commission in Sherbert. [FN71] The Court found, 

“where the state has in place a system of individualized exemptions, it may not refuse to extend that system to 

cases of ‘religious hardship’ without compelling reason.” [FN72] Yoder was now to be *139 understood as a 

“hybrid” rights case. When a neutral law of general applicability burdening religiously motivated conduct invokes 

“not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional 

protections, such as freedom of speech and of the press . . . or the right of parents . . . to direct the education of 

their children,” strict scrutiny would be applied to such a “hybrid situation.” [FN73] 

Three years after Smith, the Court modestly expanded free exercise protection in Church of Lukumi Babalu 

Aye, Inc. v. Hialeah. [FN74] At issue in the case were ordinances that prohibited the killing or sacrificing animals 

as part of any type of ritual, although they were both facially neutral and generally applicable, there was no 

doubt that they had been enacted for the express purpose of suppressing the Santeria faith, a minority religion in 

the community that slaughtered animals as part of its religious ceremonies. [FN75] Moreover, when the challenged 

laws were examined in the context of other regulations relating to the killing and welfare of animals, it 

was abundantly clear that Hialeah's ordinances constituted a “religious gerrymander” that only prohibited conduct 

when it was engaged in for religious purposes. [FN76] Recognizing that a law could discriminate against 

religion in practice as well as on its face, the Court applied strict scrutiny and struck down the offending ordinances. 

Some language in Lukumi can be read liberally to provide serious protection to religious practices that are 

burdened by under-inclusive laws, even when the laws do not discriminate against or target religion. [FN77] On 

balance, however, given the clear intent of the Court not to depart from the core limits on free exercise doctrine 

imposed by Smith, the holding of the case seems far more limited. As Fred Gedicks has summarized the situation, 

after Smith and Lukumi, “a religiously neutral law does not fail the test of general applicability merely by 

being modestly or even substantially underinclusive; rather, the law must be so dramatically underinclusive that 

religious conduct is virtually the only conduct to which the law applies.” [FN78] Under-inclusive laws that predominately 

apply to religious practices but restrict enough secular *140 conduct to avoid condemnation for targeting 

or discriminating against religion will continue to be upheld under rational basis review. 

During the same decade, following the precedent set by Widmar, the Court aggressively utilized the Free 

Speech Clause, rather than the Free Exercise Clause, to protect religious activities from discrimination and exclusion. 

Indeed, the first case in this line of authority, Lamb's Chapel v. Center Moriches Union Free School 

District, [FN79] seemed to be a straight forward replay of Widmar on more appropriate facts. A school district 

permitted outside groups to use its facilities after hours for social, civic, recreational, and political uses, but forbade 

the use of school buildings for religious purposes. A local church brought suit after it was denied permission 

to show a film series on school property that discussed family and child rearing issues from a religious perspective. 

In response, the Court held that the exclusion of the religious film series violated the Free Speech 

Clause. [FN80] It is hard to dispute the Court's conclusion that the ban on the use of buildings for religious purposes 

was unconstitutional. While little in the way of explanation was offered as to why the case should be re- 



18 J.L. & Pol. 119 

solved on free speech rather than on free exercise grounds, it is easy to infer that the precedent of Widmar was 

too on point to ignore and adequately resolved the case. Moreover, here, unlike in Widmar, the religious activities 

in question, the showing of a film with a religious perspective, seems much more like a conventional form of 

speech than the exercise or practice of religion. 

What was surprising, however, was the Court's decision to condemn the school district's regulation as 

“viewpoint” discrimination, rather than content discrimination. [FN81] This conclusion allowed the Court to 

avoid the troublesome issue of categorizing the school district's property as either a designated public forum or a 

non-public forum. Viewpoint-discriminatory regulations receive strict scrutiny in either forum. Content discriminatory 

regulations, on the other hand, receive rigorous review in a designated public forum, but they are upheld 

under a deferential reasonableness standard in a non-public forum. 

The recognized utility of a finding of viewpoint discrimination in resolving a case, however, does little to 

justify the substantive accuracy of the Court's conclusion. Religion, obviously, can be either a subject *141 or a 

viewpoint. Given the increasing difficulty of differentiating between content- (or subject matter) discriminatory 

laws and viewpoint-discriminatory laws, [FN82] some explanation of why religion should be construed to be a 

viewpoint in this case would have been more than useful. 

Two years later, in Rosenberger v. Rector & Visitors of the University of Virginia, [FN83] the Court held 

that a public university's refusal to subsidize a religious periodical published by a recognized student organization 

with funds collected from student fees violated the Free Speech Clause. Since the university provided subsidies 

to a wide variety of student groups and periodicals, the Court concluded that this denial of access (to resources 

as opposed to facilities) for religious activities constituted prohibited viewpoint discrimination. [FN84] 

Rosenberger raises several important issues that are beyond the scope of this article. For present purposes, 

however, it is relatively easy to understand why the Speech Clause, rather than the Religion Clauses, was 

deemed a more appropriate vehicle for adjudicating the case. First, as was true in Lamb's Chapel, the activity in 

question, the publication of a periodical discussing a range of topical subjects, is a conventional form of speech 

and might not be easily characterized as the exercise of religion. Second, the University of Virginia denied support 

not only for religious activities, but also for philanthropic activities, political activities, social entertainment, 

and “activities that would jeopardize the University's tax-exempt status.” [FN85] While the Court did not 

consider this range of unfounded activities to be relevant to its determination that the refusal to fund religious 

activities was viewpoint discriminatory, certainly the number of excluded activities might undermine the contention 

that religion was in some sense targeted for unfavorable treatment. [FN86] 

*142 The final case, Good News Club v. Milford Central School, [FN87] is the most problematic. Here, 

once again, a New York school district permitted outside groups to use school facilities for social, civic, and recreational 

meetings, but denied similar access to a religious organization, the Good News Club. Once again, the 

Court held that the District's exclusionary decision constituted viewpoint discrimination and violated accepted 

free speech doctrine. [FN88] The difference between Good News Club and the more recent prior cases, 

however, was the nature of the Club's activities and the reason that it was denied access to public property. As 

Justice Souter persuasively demonstrates in his dissenting opinion, the Club's activities included many of the traditional 

elements of religious worship. Club sessions typically included organized prayer, singing religious 

songs, lessons from the Bible, and repeated calls for unsaved audience members to accept Christ as their Savior 

and to publicly acknowledge their willingness to do so. [FN89] 



18 J.L. & Pol. 119 

The majority never disputes the accuracy of Souter's description of Club activities. Instead, it contends that 

Club activities are more than “mere worship” because they are not “divorced from any teaching of moral values.” 

[FN90] To the majority, “the substance of the Club's activities . . . are materially indistinguishable from 

the activities in Lamb's Chapel and Rosenberger.” [FN91] Accordingly, the denial of access to such activities 

constitutes prohibited viewpoint discrimination and must be reviewed under strict scrutiny. 

The majority's analysis is more than problematic. Obviously, worship services in many, if not most, religions 

are not divorced from the teaching of moral values. That reality hardly suggests that they are not appropriately 

characterized as worship services. [FN92] The majority seems to *143 be saying that as long as religious 

services contain moral teachings, they are appropriately understood as speech expressing a viewpoint for 

constitutional purposes. A church service is no different than a film series discussing family values or a publication 

of a periodical discussing a broad range of issues from a religious perspective. Not surprisingly, Souter concludes 

that if the majority's position is taken seriously, “any public school opened for civic meetings must be 

opened for use as a church, synagogue, or mosque.” [FN93] 

But if church services are speech for constitutional purposes, the scope of the Free Exercise Clause is seriously 

diminished. The exclusion of religious services from public property targets religion directly. Even under 

Smith, there should be little difficulty in subjecting Milford's exclusionary policy to strict scrutiny review. Yet 

again, the Court chooses to subsume core religious practices under the Free Speech Clause and ignores the applicability 

of the Religion Clauses. 

Thus, when we scrutinize the case law during this decade, most of the protection provided religious activity 

occurred under the auspices of the Free Speech Clause, not the Free Exercise Clause. What accounts for this 

emphasis on one constitutional framework over another? Given the public evisceration of the Free Exercise 

Clause in Smith, one might be tempted to explain the Court's results by arguing that free speech displaced free 

exercise as the constitutional shield for religious activity *144 because the post-Smith Free Exercise Clause 

provided too porous a covering to be of any use. But that is clearly not the case. In Lamb's Chapel and Good 

News Club, the state overtly discriminated against religious expressive activities. Even after Smith, free exercise 

protection was arguably available in each case. [FN94] 

One suspects that the preference for a free speech model can be explained not so much by its suitability for 

resolving free exercise issues, but rather by the utility of this approach for undermining Establishment Clause 

constraints on state promotion and support for religion. Free speech doctrine undercuts Establishment Clause 

holdings in two key respects. First, speech doctrine is grounded on a non-discrimination principle that precludes, 

or at least requires a compelling justification for, treating one message differently from another because 

of its communicative impact. If religion is characterized as a viewpoint of speech, and the Free Speech Clause 

informs or controls Establishment Clause analysis, government must provide private religious institutions and 

groups access to the same support it provides to secular organizations. [FN95] Characterizing religion as religion 

and subsuming the review of its regulation under the Free Exercise Clause provides no comparable basis 

for avoiding Establishment Clause constraints on the state's subsidizing of religion. Indeed, if anything, the vigorous 

enforcement of the Free Exercise Clause as an independent basis for protecting religious practices from 

state interference helps to justify rigorous Establishment Clause limits on the state promotion of religion. Affirming 

distinct protection for religion under the Free Exercise Clause legitimates equally distinct limitations on 

religion under the Establishment Clause. [FN96] 

*145 The decision in Rosenberger to apply free speech, non-discrimination requirements to access to finan- 



18 J.L. & Pol. 119 

cial subsidies in the same way that these requirements were traditionally applied to access to public property 

clearly magnified the extent to which free speech cases involving religion clashed with Establishment Clause restrictions 

on state aid to religious institutions. Notwithstanding explicit limits on the scope of the Court's holding 

in the majority opinion, [FN97] and Justice O'Connor's emphasis on the narrowness of the decision in her concurrence, 

[FN98] Rosenberger has been cited by Justices, commentators, and litigants for the proposition that 

government must (or at least is permitted to) treat religious and non-religious institutions as equally eligible for 

state support. [FN99] 

Second, free speech doctrine is conventionally understood as accepting a more limited understanding of state 

action than Establishment Clause cases recognize. When government opens public property for private expressive 

uses, it is generally recognized that the speech activities permitted in such fora are private acts entirely independent 

of the state for constitutional purposes. More precisely, the messages communicated are not attributed 

to the state, even if there is a substantial consensus of private viewpoints in an area. State action has been applied 

more broadly in Equal Protection and Establishment Clause cases, however. Here the state has been held 

responsible for private conduct on public property that communicates a message of racial disparagement or religious 

favoritism or endorsement. [FN100] Thus, if religious activity is characterized as speech rather than religion, 

there will be an increased tendency to view such activities as exclusively private in nature and beyond the 

scope of constitutional mandates. [FN101] 

*146 II. The Risks and Benefits of Conceptualizing Religious Practice as Speech 

Persuasive criticisms may be directed at the use of free speech doctrine to undermine Establishment Clause 

constraints on state subsidies for religious institutions and activities. [FN102] The focus of this paper, however, 

is on the other side of the Religion Clause equation. What are the doctrinal consequences for free exercise purposes 

of an increased identification of religion with speech and the substitution of vigorously enforced free 

speech doctrine for an independent free exercise jurisprudence? As the proceeding analysis suggests, there are 

important virtues and drawbacks to such a constitutional framework that ought to be carefully evaluated before 

the Court proceeds any further in this direction. 

As noted, however, these virtues and drawbacks must be understood in relative terms. Much of the value in 

characterizing religion as speech is predicated on a comparison with post-Smith free exercise jurisprudence. If, 

as Part II of this article attempts to demonstrate, the deficiencies in Smith cannot be effectively remedied, and 

the decision must be overruled, a very different comparative analysis would apply. The justifications for protecting 

religion as speech whenever there is a sufficient speech dimension diminish substantially if the Free Exercise 

Clause is vigorously enforced against neutral laws of general applicability. [FN103] 

*147 A. Virtues and Advantages 

1. Content and Viewpoint Discriminatory Regulation of Religious Speech 

At first glance, speech cases such as Widmar, Lamb's Chapel, and Good News Club appear to offer little 

solace from the draconian limits on free exercise protection imposed by Smith. They all are predicated on discrimination 

against religion, and even Smith requires the rigorous review of laws singling out and disproportionately 

burdening religious activities. Thus, both free speech and free exercise doctrine ought to require strict 



18 J.L. & Pol. 119 

scrutiny review of laws that treat religious expression differently and less favorably than other subjects or viewpoints 

of speech. This is surely a reasonable expectation, but in at least one notorious area, that of land use regulation, 

it is clearly not an accurate description of current law. 

Land use ordinances explicitly regulating and restricting houses of worship, for example, rarely receive rigorous 

judicial scrutiny under free exercise review. [FN104] In part, this judicial reluctance is grounded on the 

courts' perception that construction of a house of worship is neither a mandatory obligation nor a central tenet of 

the congregation's faith. [FN105] In theory, free speech doctrine provides more serious *148 protection from 

land use regulations to houses of worship that courts cannot easily ignore. Unlike the exercise of religion, 

speech is protected without regard to the speakers' motives or commitment to the message being expressed. 

Ideas that are discretionary expression and tangential to an individual's core beliefs are still fully protected 

speech. 

Indeed, given the close association between a house of worship and religious expression, explicit restrictions 

on churches, synagogues, mosques, and temples arguably constitute content-discriminatory regulations of religious 

expression. [FN106] A house of worship, after all, is not the site of generic expression. It is the site of religious 

expression in all of its diverse manifestations. Ordinances setting out distinct standards for evaluating development 

proposals for houses of worship or specifying the locations where houses of worship are permitted in 

a community classify on the basis of the content of speech. If we take the Court's analysis in Widmar and Good 

News Club seriously, such ordinances are viewpoint-discriminatory. Either way, they should receive strict scrutiny 

review. 

In the land use area, at least, as Robert Tuttle has demonstrated in a recent article, [FN107] courts do not employ 

strict scrutiny. In some cases, they simply ignore the free speech implications of the zoning of religious institutions 

with almost no explanation. [FN108] In others, they dispense with claims of content discrimination by 

employing a “secondary effects” exception to the traditional doctrine requiring rigorous review of contentdiscriminatory 

laws. [FN109] Under this analysis, *149 content-discriminatory regulations adopted to prevent 

the consequences of religious assembly in a location (such as increased traffic and congestion) rather than to restrict 

access to a religious message, receive the intermediate standard of review that is applied to content-neutral 

regulations. 

For the purposes of this article, however, I am more concerned about what courts should do than what they 

actually do. If we are going to substitute free speech for free exercise doctrine, at least we can insist that free 

speech principles must be enforced with all the vigor courts can muster. Judicial decisions that simply ignore 

the free speech implications of land use regulations are largely indefensible. The secondary effects argument 

has more merit, and some commentators have accepted this rationalization for applying a more lenient standard 

of review to the zoning of churches. [FN110] On balance, however, there are persuasive reasons for rejecting the 

application of this analysis to land use restrictions imposed on religious institutions. 

The Supreme Court, outside of the “adult speech” context, has rarely employed the secondary effects doctrine. 

[FN111] There are good reasons for this reticence. The line between primary and secondary effects is too 

amorphous and manipulable a boundary to police the distinction between content-discriminatory and contentneutral 

laws. Indeed, this weakness in the doctrine is illustrated by the attempt to apply a secondary effects analysis 

to the zoning of houses of worship. The land use externalities associated with churches--congestion, noise, 

and the displacement of other valuable activities--are not attenuated consequences of speech, like the increased 

level of crime and prostitution associated with areas where adult businesses are located. Instead, they are ex- 



18 J.L. & Pol. 119 

tremely common consequences of expressive activity of all kinds. If government is concerned about the number 

of participants engaging in expressive activity and the ensuing noise and *150 congestion, it should regulate on 

the basis of these neutral criteria. Alternatively, government can attempt to justify a regulation distinguishing 

between poetry readings and political rallies, for example, on the basis of the externalities associated with both 

activities, but it must do so under strict scrutiny review. Allowing the state to avoid rigorous review when it 

formally distinguishes between political rallies, poetry readings, religious services, union meetings, and the like 

on the basis of predictions about routine, but “secondary” consequences of expressive activity is an entirely different 

matter, however. Strict scrutiny of content-discriminatory regulations would be far too easily circumvented 

by reference to purported secondary effects if courts need only accept limited evidence of disparate externalities 

resulting from different subjects of expression as the basis for applying a much more lenient standard of review. 

[FN112] 

Moreover, as we have seen in several free speech decisions, religion may be characterized as a viewpoint as 

well as a subject of speech. No case suggests that secondary effects doctrine may be used to reduce the standard 

of review applied to viewpoint-discriminatory regulations. City officials may have every reason to believe that 

the headquarters of the Democrats in a particular community may produce more noise and congestion than the 

headquarters of the Republicans, but no one would suggest that the city may explicitly impose more rigorous restrictions 

on one party's headquarters than on the others and avoid strict scrutiny review under the rubric of secondary 

effects. If we take the Court's repeated conclusion that religion is a viewpoint of expression seriously, 

zoning ordinances that regulate churches should receive strict scrutiny review. 

2. Protection Against Neutral Laws of General Applicability 

Of course, free speech doctrine extends beyond discriminatory regulations and covers content-neutral regulations 

as well, albeit under a less demanding standard of review. [FN113] Thus, content-neutral speech regulations 

restricting religious activities should receive some level of review. Moreover, some free speech rules and 

standards apply to laws that are not directed at, or limited to, expression alone and restrict both *151 speech and 

unexpressive conduct. To use the vernacular of Smith, the Free Speech Clause sometimes applies to neutral and 

generally applicable laws that regulate not only speech. If religious activities are characterized as speech and 

protected under these approaches, the range of laws burdening religious practices and institutions receiving 

some form of constitutional review would extend beyond the narrow parameters set out in Smith, at least to 

some extent. [FN114] 

a. Content Neutral Laws Restricting Speech 

While the degree of rigor applied to content-neutral speech regulations is a modest form of intermediatelevel 

scrutiny, there is no doubt that this standard has considerably more bite to it than the virtually total deference 

of rational basis review to which all free exercise claims against neutral laws of general applicability are 

relegated after Smith. [FN115] Early free speech cases, such as Cantwell, demonstrate the effectiveness of free 

speech doctrine in protecting religious expression in this regard. [FN116] Moreover, there is an important process 

dimension to the review of content-neutral speech regulations. The state may have considerable flexibility 

in deciding what standards it will employ in regulating the time, place, and manner of speech, but these standards 

must include clear guidelines and criteria. Under free speech principles, it is unconstitutional to vest standardless 

discretion in officials who are delegated the power to determine when, where, and how speech may occur. 

The risk of bias inherent in such unguided decisionmaking and the difficulty of reviewing standardless decisions 

after the fact mandate this result. [FN117] This procedural requirement can *152 be of considerable util- 



18 J.L. & Pol. 119 

ity for the protection of religion in a land use context. [FN118] 

In addition, the advantage of using free speech doctrine rather than free exercise doctrine to challenge burdensome 

laws extends beyond the rigor of judicial review. It also applies to the scope of the right. An intrinsic 

limit of free exercise doctrine has been the rigid focus of courts on whether the subject of the regulation can be 

correctly identified as the exercise of religion for constitutional purposes. Regulating practices that are associated 

with religion, locations where religious exercise will occur, and supporting activities that facilitate the exercise 

of religion is not characterized as burdening protected activity. [FN119] 

Free speech doctrine is very different. Not just speech is protected. Laws with “a close enough nexus to expression,” 

that are directed at “conduct commonly associated with expression,” [FN120] or “conduct that is normally 

engaged in for the purpose of communicating an idea” [FN121] fall within the scope of review. Clearly 

the location where speech occurs and the means by which speech is communicated are covered. Thus, if a law is 

directed at the conventional means and locations of engaging in religious expressive activities, it should be reviewed 

under the standard routinely applied to content neutral regulations of speech. [FN122] 

*153 This reasonable expectation is not always reflected by the case law, however. Once again, cases involving 

land use regulations demonstrate a myopic reluctance on the part of courts to recognize the free speech 

implications of the zoning of religious land uses. [FN123] But land use is not the only area of regulation where 

free speech doctrine should provide greater protection against content-neutral speech regulations than the Free 

Exercise Clause provides. Under free speech doctrine, regulations limiting the time, place, and manner of proselytizing, 

worship, religious education, wearing religious symbols or insignia, displaying religious symbols or 

insignia on real or personal property, soliciting for donations, publishing books and magazines, radio and television 

broadcasts, and advertising for religious services or products should receive a more rigorous form of scrutiny 

than the rational basis standard required by Smith. [FN124] 

*154 b. Speech-Neutral Laws Restricting Speech 

The previous section focused on content-neutral regulations of speech, but many laws that burden speech do 

not directly regulate conventional, expressive activities alone. They govern a range of both expressive and nonexpressive 

activities. Further, sometimes conduct that we would not conventionally identify as expressive is engaged 

in to communicate a message. Smith, of course, provides no protection to religious practice in any of 

these contexts. Thus, to the extent that free speech doctrine applies in these circumstances, the protection it 

provides to religious activities that may be characterized as speech extends substantially beyond the coverage of 

the Free Exercise Clause after Smith. 

3. Applying Neutral and Generally Applicable Laws to Conventional Expressive Activity 

a. Facial Challenges to Laws Extending Beyond Conventional Expressive Activity 

Unlike current free exercise jurisprudence, free speech doctrine is not limited in its application to laws that 

directly and exclusively regulate speech. A general law that encompasses both expressive and non-expressive 

activity may in some circumstances be challenged on its face as violating the Free Speech Clause of the First 

Amendment. 

Consider the anti-noise ordinance at issue in Grayned v. City of Rockford, [FN125] which prohibited “the 



18 J.L. & Pol. 119 

making of any noise or diversion which disturbs or tends to disturb the peace or good order” on land adjacent to 

a school. [FN126] Obviously, this law would seem to apply to noises without regard to whether they are made 

for expressive purposes. Firecrackers, leaf blowers, and jackhammers may violate the ordinance to the same extent 

as political rallies or loudspeakers promoting the sale of commercial products. Yet, the general applicability 

of the law did not preclude the Court from evaluating it on free speech grounds because of its potential effect on 

expressive activities. The law could only be upheld as constitutional if it was narrowly tailored to further a sufficiently 

important state interest. [FN127] 

*155 Although the anti-noise ordinance was upheld in Grayned, there is no doubt that it received serious and 

careful review. A very different analysis would apply under post-Smith free exercise doctrine. If a loud religious 

practice were prohibited by a similar ordinance, the noise ordinance would be characterized as a neutral law of 

general applicability and sustained under rational basis review. [FN128] 

Other cases more clearly demonstrate that overbreadth doctrine constitutes a separate, unique, and important 

distinction between free speech and free exercise doctrine with regard to the application of these constitutional 

clauses to generally applicable laws. In Coates v. Cincinnati, [FN129] for example, the Court struck down as 

vague and overbroad a local ordinance prohibiting “three or more persons to assemble . . . on any of the sidewalks 

. . . and there conduct themselves in a manner annoying to persons passing by.” [FN130] It takes little effort 

to imagine a range of non-expressive activities covered by the language of this ordinance that do not receive 

free speech protection in any manner or form. Indeed, the record before the Court did not even describe the conduct 

of the defendants who sought judicial review of their convictions under the ordinance. [FN131] Yet, the 

general applicability of the ordinance to non-expressive and unprotected activity was not enough to allow it to 

withstand an overbreadth challenge. Because the ordinance might be unjustifiably applied to expressive activity 

in a significant number of instances, the law was invalidated on its face. 

The juxtaposition of the overbreadth doctrine under the Free Speech Clause and the current free exercise 

doctrine is jarring in its dissonance. The Court made it clear in Lukumi that a law that does not discriminate 

against religion on its face may still receive strict scrutiny *156 review, but only if the regulation constitutes a 

religious gerrymander which has the effect of singling out a religious practice for unfavorable treatment. Thus, 

when the city ordinance prohibiting the ritual slaughter of animals in Hialeah was considered along with other 

laws and exemptions relating to the killing of animals, it became clear that only the killing of animals for religious 

reasons - indeed, only the ceremonies of a particular disfavored faith, the Santaria religion - was subject to 

sanction. [FN132] 

It is not at all evident that the Court's holding in Lukumi extends beyond this limited foundation. Thus, for 

example, assume that a secular fraternity in Hialeah engaged in the ritual killing of animals during its pledge 

week activities, and that the challenged ordinance was equally directed at, and burdensome to, that fraternity as 

well as Santaria religious rituals. On these facts, it is doubtful that the ordinance would violate the Free Exercise 

Clause under strict scrutiny review. This hypothetical law applies both to secular and religious activities 

and could not be characterized as discriminatory on its face or in effect. 

Free speech doctrine and overbreadth analysis are far more advantageous to the constitutional 

claimant. Confronted with a law that arguably prohibits both unprotected conduct and protected expressive 

activities, a plaintiff need not demonstrate discrimination against speech or expressive gerrymandering. It is 

enough that the law's potential applications may restrict a significant amount of protected expression for the 

court to conclude that it is substantially overbroad in its scope. By definition, overbroad laws are laws of gener- 



18 J.L. & Pol. 119 

al applicability that apply to more than protected speech. Yet, far from precluding judicial review of such statutes, 

overbreadth doctrine exists to insure that the fact that a law is not exclusively directed at speech and may 

legitimately be applied to some non-expressive conduct neither immunizes it from constitutional review, nor 

delays challenges to its validity. The distinction between free exercise and free speech doctrine here could not 

be more stark. [FN133] 

*157 b. As Applied Challenges to Laws Extending Beyond Conventional Expressive Activity 

Free Speech Clause doctrine permits not only facial challenges to neutral laws of general applicability that 

are not directed exclusively at expression. It also allows “as applied” challenges to broad laws that are used to 

penalize or prohibit protected speech. A breach of the peace statute, such as the one applied to civil rights 

demonstrators in Cox v. Louisiana, [FN134] is a classic example. The Louisiana statute provided that 

[w]hoever with intent to provoke a breach of the peace, or under circumstances such that a breach of 

the peace may be occasioned thereby . . . crowds or congregates with others . . . in or upon a public street 

or public highway . . . and who fails or refuses to disperse or move on . . . shall be guilty of disturbing the 

peace. [FN135] 

Clearly, crowds engaged in non-expressive behavior fall within the parameters of this statute, and individuals 

may be arrested and prosecuted for failing to obey its requirements. The law is not directed solely at speech 

or at conduct engaged in for expressive purposes, but the expansive scope of the law does not prevent individuals 

engaging in protected, expressive activities from invoking the Free Speech Clause to challenge their conviction 

under this statute. In Cox, the Court held that “Louisiana may not constitutionally punish appellant under 

this statute for engaging in the type of conduct which this record reveals.” [FN136] While some of the speech 

expressed at the demonstration was inflammatory, these comments “did not deprive the demonstration of its protected 

character under the Constitution as free speech and assembly.” [FN137] 

Under existing law, a free exercise claim challenging the application of a disturbing the peace statute to religiously 

motivated activities would be treated far less generously. The neutral and generally applicable nature of 

the law would preclude any invocation of free exercise rights *158 as a shield against the state's conduct. Only if 

the statute at issue were directed against religious disturbances of the peace would free exercise protection apply. 

[FN138] 

The Court's recent decision in Boy Scouts of America v. Dale [FN139] provides an additional example of an 

as-applied challenge to a law alleged to infringe on an organization's rights of expressive association. The New 

Jersey civil rights statute at issue provided that “[a]ll persons shall have the opportunity to obtain employment, 

and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation 

. . . without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional 

or sexual orientation, family status or sex.” [FN140] The statute defined a “place of public accommodation” 

to include taverns, hotels, motels, trailer camps, manufacturers, wholesalers, stores, restaurants, bowling 

alleys, hospitals, and a host of other entities and facilities. Obviously, the statute was a neutral law of general 

applicability vis-à-vis speech and could not reasonably be construed to be targeting expression. Notwithstanding 

the generality of the statute, the Court confidently inquired into “whether applying New Jersey's public accommodations 

law in this way [forcing the Boy Scouts to accept a gay man as scoutmaster] violates the Boy Scouts' 

First Amendment right of expressive association.” [FN141] In concluding that this application of the state's law 

did violate the Scouts' freedom of expressive association, the Court never even considered whether the general- 



18 J.L. & Pol. 119 

ity of the law limited free speech review of its application. [FN142] 

Again, it is hard to imagine courts employing a comparable analysis if a free exercise claim were raised to 

protect a religious organization or institution from the reach of public accommodations statutes. Since such laws 

are neither aimed at religious organizations nor limited to *159 religiously motivated discrimination, the rule of 

Smith would control to deny constitutional review. [FN143] Applying neutral and general laws in a way that interferes 

with religious groups and institutions has no free exercise significance today unless the administration 

of the law deliberately discriminates against religious organizations or religiously motivated decisions. [FN144] 

4. Applying Neutral and Generally Applicable Laws to Conventionally Non-Expressive Activity 

Certain activities, such as prayer and forms of worship, may be conventionally recognized as the practice of 

religion in the same sense that activities such as writing and leafleting may be conventionally recognized as 

means of expression. Other activities, including eating (or not eating), drinking, acts of charity, child rearing, 

and teaching, are not intrinsically religious in nature, but they may be engaged in for religious reasons. 

Similarly, there are many forms of normally non-expressive conduct that may be performed for communicative 

purposes--to send a message. For example, a person may wear a ribbon on her clothing as a noncommunicative 

decoration or as a sign of solidarity or protest. 

It is clear after Smith that the regulation of conduct that is not conventionally recognized to be religious in 

nature will receive rational basis review, unless the law regulates the conduct only when it is engaged in for religious 

purposes. A law prohibiting wearing hats can be used to punish Jews wearing Yarmulkes, as long as persons 

wearing hats for secular reasons are equally subject to sanction. [FN145] It is less than clear, however, that 

free speech doctrine tracks this analysis. The *160 regulation of normally non-expressive conduct may receive 

some form of review when it is applied to conduct that is engaged in to send a message, even when the regulation 

is not intended to have a speech-suppressing effect. 

The Court has set out a four-prong standard of review, the O'Brien test, to evaluate the constitutionality of 

laws regulating conventionally non-expressive conduct, such as sleeping in a park, when that conduct is engaged 

in for expressive purposes. The test considers whether the challenged regulation lies within the power of government, 

furthers a substantial governmental interest, burdens speech no more than is necessary to further that 

interest, and is not related to the suppression of expression. [FN146] There is agreement under O'Brien that regulations 

of symbolic or conduct-intensive expression will receive strict scrutiny when they are designed to silence 

a particular message. [FN147] What is uncertain is the rigor of this standard of review when it is applied 

to laws that lack a speech-suppressive purpose. 

The Supreme Court has stated on several occasions that this standard of review is essentially equivalent to 

the evaluation of content-neutral regulations of the time, place, and manner of speech. [FN148] Several thoughtful 

commentators accept the Court's assertions at face value and argue that free speech doctrine is distinguishable 

from free exercise doctrine in this regard. Neutral and generally applicable laws receive rational basis review 

under the Free Exercise Clause when they are applied to conduct that is not intrinsically religious in nature, 

but which may, in fact, be religiously motivated. Neutral and generally applicable laws receive a form of intermediate 

level scrutiny under the Free Speech Clause when they are applied to conduct that is not intrinsically 

expressive in nature, but which may, in fact, be engaged in to express a message. [FN149] 

Other commentators, and I include myself in this group, suggest that the Court's claims about the rigor of the 

review provided to general regulations of conduct that incidentally burden expression are substantially in- 



18 J.L. & Pol. 119 

flated. When the cases applying the O'Brien test are examined carefully, it is evident that the courts are employing 

a very *161 deferential standard of review. [FN150] From this perspective, there is little, if any, difference 

between free speech and free exercise doctrine in this regard, and characterizing religious activity as speech will 

not increase the level of constitutional protection such practices will receive. 

There is no need to revisit these arguments again in this article. It is sufficient to conclude that if the 

O'Brien test is taken seriously, free speech doctrine will be more advantageous than free exercise doctrine in 

challenging neutral laws of general applicability that incidentally burden expressive religious practices. But the 

predicate to that conclusion remains to be established. 

5. Compelled Affirmation of Belief 

There is historical precedent for recognizing that Free Speech Clause protection against compelled affirmations 

of belief will be stronger and more effective than any shield the Free Exercise Clause provides against state 

mandates requiring religious individuals or institutions to engage in conduct that directly or incidentally communicates 

a message inconsistent with their beliefs. In Minersville School District v. Gobitis, [FN151] the Court 

rejected a free exercise challenge by Jehovah's Witnesses to compulsory saluting of the American flag. Three 

years later, in West Virginia State Board of Education v. Barnette, [FN152] the Court held that school districts 

requiring students to salute the flag violated the Free Speech Clause of the First Amendment. 

Since the Court's decision in Barnette, the scope of the Constitution's protection against compelled affirmations 

of speech has expanded dramatically. Individuals and corporations are not only protected against having to 

affirm or communicate the state's message, but they are also protected against being compelled to communicate 

any private message with which they disagree. [FN153] Nor do claimants actually have to be forced to affirm or 

even to say anything. It is enough that they are required to permit state or private messages to be communicated 

in a *162 way that associates the compulsory message with the claimant. [FN154] Similarly, compulsory exactions 

that are used to finance the expression of others are unconstitutional. [FN155] The message being communicated 

need not be political or ideological. It can be trivial or commercial in nature. All that is essential is that 

the compelled party disagrees with its content. [FN156] 

Indeed, under recent case law, it is not even necessary that the state's compulsion directly relate to expressive 

conduct. In Boy Scouts of America v. Dale, [FN157] the Court upheld the right of the Scouts to expel Dale, 

a gay Scoutmaster, in an opinion that effectively merged freedom of association and compelled affirmation of 

belief arguments. Notwithstanding the fact that Dale had never discussed his or anyone else's homosexuality 

with his troop and the lack of any evidence that he intended to broach this subject with the boys in his charge, 

the Court found that Dale's silent presence communicated an unacceptable message. “Dale's presence in the Boy 

Scouts,” the majority explained, “would, at the very least, force the organization to send a message, both to the 

youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.” 

[FN158] 

Last, but not least, the compelled affirmation of belief doctrine not only protects people from having to say 

things with which they disagree, but also protects them from being forced to express their own views when they 

would prefer to remain silent. Thus, one of the unconstitutional consequences of persons being forced to 

“associate” with speech they oppose is that they will feel pressured to respond to such messages. This “forced 

response is antithetical to the free discussion that the First Amendment seeks to foster.” [FN159] 

The utility of this doctrine for religious institutions may be illustrated by a recent California Court of Ap- 



18 J.L. & Pol. 119 

peals decision, Catholic Charities of Sacramento v. Superior Court, [FN160] which is currently on appeal before 

the California Supreme Court. At issue is a state statute requiring *163 employers who offer health benefits to 

their employees that include prescription drug benefits to also include prescription contraceptive drugs in the 

coverage provided. While there is a conscience clause in the statute, it is so narrow and restricted in scope that 

Catholic institutions, like Catholic charities, are not exempt from the statute's mandate. Since “[t]he Catholic 

Church explicitly teaches that artificial contraception is morally unacceptable and, if knowingly and freely engaged 

in, sinful,” [FN161] the burden of the law on Catholic organizations' religious commitments is obvious. 

Yet a direct challenge on free exercise grounds after Smith has significant difficulties. The state law (leaving 

aside the conscience clause for the moment) is neutral on its face and generally applicable. It applies to both religious 

and non-religious employers. Smith leaves little opportunity for a free exercise challenge to such a law. 

[FN162] 

A free speech challenge alleging compelled affirmation of belief may stand on stronger ground. Catholic organizations 

are forced to subsidize insurance coverage for practices the Church condemns as sinful. While insurance 

coverage is not directly communicative, it is hard to escape the associational connection between church 

doctrine and employment policies. If a civil rights law prohibiting discrimination “forces” the Scouts to communicate 

a message “accept[ing] homosexual conduct as a legitimate form of behavior” by allowing a gay man 

to serve as a Scoutmaster, [FN163] requiring Catholic Charities to subsidize insurance coverage for acts it condemns 

as sinful similarly “forces” the religious organization to communicate the message that the use of contraceptives 

is a legitimate method of birth control. Certainly, the law imposes considerable pressure on religious associations 

to respond to the insurance mandate and explain why they are subsidizing practices that are inconsistent 

with their faith. 

The reach of such a compelled affirmation of belief argument may seem unreasonably broad. It suggests 

that government can never impose mandates on groups that are inconsistent with the group's ideology. Yet it is 

difficult to deny that the Dale opinion opens the door *164 to arguments of this kind. [FN164] Moreover, when 

organizations exist in significant part for the purpose of communicating particular messages, such as the mission 

of religious organizations to convey to the community their religious beliefs by word and example, statutory 

mandates inconsistent with core religious beliefs seem to compel speech either by implication or in response to 

legal requirements. 

B. Drawbacks and Problems 

1. The Consequences of Religion as Viewpoint 

a. The Loss of Religion Specific Accommodations 

The dismantling of free exercise protection by the Smith decision shifted the responsibility for protecting religious 

liberty from the courts to the political branches of government. Religious individuals and institutions 

were forced to seek and rely on political accommodations and statutory exemptions to escape government burdens 

on the practice of their faiths since the constitutional courts were no longer available to provide redress. 

[FN165] While several acute problems result from this shift in responsibility (and I will return to these concerns 

later in this article), conceptualizing religion as speech, and as a viewpoint of speech at that, creates a particularly 

difficult issue for legislative accommodations and exemptions of religious practice. 



18 J.L. & Pol. 119 

Put simply, a great many accommodations and exemptions apply only to religious individuals and institutions. 

No comparable relief from regulatory burdens is provided those whose secular beliefs and belief-motivated 

conduct are subject to regulatory burdens or to secular organizations that are analogous, in many of their 

functions and purposes, to religious institutions. [FN166] If religion constitutes a viewpoint for Free Speech 

Clause purposes, accommodations and exemptions for *165 religious individuals and institutions, but not their 

secular counterparts, should constitute viewpoint discrimination that must be justified under strict scrutiny. 

[FN167] 

If we discuss exemptions for religious speech or religiously motivated expression from a conventional content-neutral 

speech regulation, the viewpoint discrimination problem is obvious and exemptions are extremely 

difficult to uphold. Assume a law regulates the use of loud speakers, the distribution of leaflets, the size and 

location of signs, the scope of residential picketing or any other conventional means of expression. Is there any 

doubt that a statutory exception for religious speech or religiously motivated messages constitutes viewpoint discrimination 

or that such viewpoint discrimination cannot survive strict scrutiny? [FN168] 

What compelling state interest does exempting religious speech from routine time, place, and manner regulations 

further? The Free Exercise Clause after Smith does not protect religious expression from neutral and generally 

applicable speech regulations. Accordingly, the state cannot claim that its discrimination is justified by 

the need to comply with free exercise requirements. The state may argue that it is attempting to provide greater 

protection to religious practices and expression than the Free Exercise Clause requires. But we have seen that 

the Court has explicitly rejected similar arguments when states attempt to justify discrimination against religious 

speech on the grounds that they are enforcing the separation of church and state beyond the *166 mandate of the 

Establishment Clause. [FN169] While complying with constitutional requirements could be characterized as a 

compelling state interest, going beyond what the Constitution requires in the service of constitutional values 

does not justify the abridgement of free speech rights. 

As courts increasingly characterize religious activities as expression for free speech purposes and insist that 

discrimination against such activities constitutes prohibited viewpoint discrimination, it becomes increasingly 

difficult, if not impossible, to avoid reaching a similar conclusion when religious activities are given favorable 

treatment. The Good News Club case is embarrassingly on point here. The Milford School District opened its 

facilities to “social, civic and recreational meetings and entertainment events, and other uses pertaining to the 

welfare of the community,” but refused to provide similar access to organizations intending to use school facilities 

for “religious worship.” [FN170] Accordingly, the Boys Scouts, Girls Scouts, and 4H Clubs were permitted 

access, but the Good News Club was not. 

To the majority, this exclusion constituted prohibited viewpoint discrimination. The fact that the Good 

News Club's program involved activities that could be accurately described as religious worship was entirely irrelevant 

to the Court's analysis. It was enough that the Club's program also involved, and could be properly 

characterized as, the teaching of morals and character development. Thus, if secular groups engaged in the 

teaching of morals and character development were permitted to use school property, religious groups seeking to 

use school property for worship and moral education must be permitted access as well. [FN171] 

If the Milford School District's policy constitutes viewpoint discrimination, clearly it is equally viewpoint 

discriminatory to open school facilities exclusively to religious organizations and programs, but not to the 

Rotary Club, Boy Scouts, and 4H clubs or other social and civic groups. More importantly, there is no reason to 

limit the holding of Good News Club to clubs or to school buildings. Justice Souter protested in dissent that if 



18 J.L. & Pol. 119 

the majority's analysis is accepted, “any public school opened for civic meetings must be opened for use as a 

*167 church, synagogue, or mosque.” [FN172] That seems to be the precise consequence of the majority opinion. 

Much of what occurs in a church or synagogue involves the teaching of morals and character development, 

holiday celebrations, charity work, educational programs, social gatherings, discussions of ethical issues and a 

host of other expressive activities that occur in secular institutions and programs. If the context and function of 

worship does not distinguish religious organizations and programs from secular groups and activities that have 

no worship component for free speech purposes, discrimination in favor of civic meetings and against church, 

synagogue, and mosque services should indeed be held to violate the Free Speech Clause. This means, however, 

that discrimination in favor of churches, synagogues, and mosques constitutes prohibited viewpoint discrimination, 

as well. [FN173] 

Further, this prohibition against viewpoint discrimination in favor of religious institutions is not limited to 

government property and traditional or limited public forums. The prohibition against viewpoint discrimination 

is a core free speech principle that extends to any regulation of expressive activity wherever it occurs. 

Viewpoint-discriminatory regulations of speech on private property are at least as problematic as viewpoint-discriminatory 

regulations limiting access to public property. [FN174] Thus, accommodations and exemptions 

from regulatory burdens that are available only to religious individuals and institutions raise viewpoint discrimination 

issues whenever the activity at issue is subsumed within the coverage of the Free Speech Clause. 

A host of statutory exemptions might be constitutionally vulnerable to attack on free speech grounds under 

this analysis. One obvious example is the Religious Land Use and Institutionalized Persons Act (RLUIPA) 

[FN175] enacted in 2000. RLUIPA provides important statutory *168 protection for houses of worship in the 

land use regulatory process by imposing a stringent burden of justification on local governments that substantially 

interfere with the ability of congregations to develop houses of worship in a community to otherwise use 

their property for religious purposes. It is an effective legislative response to serious regulatory abuses limiting 

opportunities for religious assembly in far too many communities. [FN176] 

However, the protection provided by RLUIPA is only available to religious land uses. It applies to churches, 

but not fraternal lodges, synagogues, but not Boy Scout cabins, mosques, but not women's centers. All of these 

secular facilities are used to teach morals and character development, to discuss ethical issues, and to organize 

and support charitable work, but they do so from a secular, rather than a religious, perspective. Why isn't 

RLUIPA a viewpoint-discriminatory law, which must be justified under strict scrutiny? [FN177] 

*169 Reasonable people may argue about whether it is a good or bad idea to insist that religious exemptions 

and accommodations be broadened to include secular beliefs, practices, and institutions. The argument against 

such an approach is basically the same whether we are talking about statutory accommodations or constitutionally-mandated 

exemptions (the kind we used to have before Smith was decided). Michael Paulsen states the argument 

against such an expansive approach succinctly when he writes that it is 

too generous; such a broad conception of freedom of ‘religion’ becomes, as a practical matter, 

something of a poison pill for the pro-exemptions view. It loads up the pro-exemptions reading of the 

Clause [or writing of statutes] with liabilities so severe and costs so great that judges [or legislatures] no 

longer will buy it. [FN178] Other commentators insist that only broad-based, general exemptions are appropriate. 

Religion should not be singled out for preferential treatment. [FN179] 

This article is not the place to continue, much less resolve, this debate. My point is simply that an expansive 

vision of religion as speech that is subsumed under and protected by the Free Speech Clause precludes the adop- 



18 J.L. & Pol. 119 

tion of many religion-only exemptions and accommodations and requires more even-handed treatment between 

religious and secular beliefs and viewpoints. To the extent that such a requirement is problematic for the protection 

of religious liberty, and I think there is a powerful argument that it is, particularly in a post-Smith world, 

free speech doctrine imposes serious limits on the ability of the political branches to protect religious practices 

and institutions from state interference. 

b. Subject and Viewpoint Distortions 

The preceding section demonstrates one of the precarious consequences of the Court's uncritical willingness 

to characterize religion as a viewpoint and to protect it as such under the Free Speech Clause. Legitimate legislative 

exemptions and accommodations that are *170 necessary to protect religious liberty become vulnerable to 

challenge. Characterizing religion as a viewpoint, in some circumstances, has another problematic effect, 

however. Religious, expressive activities are unreasonably favored when there is no persuasive justification for 

favoring religious speech over its secular counterpart. 

In one sense, the issue here is a relatively minor one, but it demonstrates the way that the Court's characterization 

of religion as a viewpoint can unwittingly distort the marketplace of ideas. Religion is not disadvantaged 

under this analysis; it is actually privileged. But the way the privilege arises is difficult to accept and seems inconsistent 

with basic free speech values - even if it conforms to current doctrine. 

Assume that a school district, such as the defendant in the Good News Club case, allows various private 

clubs and associations to use school facilities after hours, but excludes political meetings and religious meetings. 

Because the school district is sufficiently selective in choosing the groups it permits to use its buildings, it 

does not create a designated or limited public forum but instead is held to regulate access to a nonpublic forum. 

[FN180] In a nonpublic forum, the doctrinal rules are relatively clear-cut. Content-discriminatory regulations 

will be upheld as long as they are reasonable, a relatively deferential standard of review. Viewpoint-discriminatory 

regulations will be reviewed under strict scrutiny. [FN181] The application of those rules is more complex 

than their statement, however. 

To begin with, how should we characterize the school district's decision to exclude political and religious 

meetings? One might argue in theory that the exclusion of both religious and political meetings is sufficiently 

general that it cannot be construed to be viewpoint-discriminatory. That argument seems foreclosed by the 

Court's analysis in Rosenberger, however, which held that the University's refusal to fund a religious periodical 

prepared by a student group constituted viewpoint discrimination, notwithstanding the University's refusal to 

fund a variety of other student-based expressive activities. [FN182] Accordingly, closing the school district's facilities 

to religious meetings should be characterized as viewpoint discrimination and reviewed under strict scrutiny. 

*171 But what about the ban on political meetings? It is much more difficult to classify political meetings or 

political expression of any kind as a viewpoint. There is no obviously understood “political” perspective through 

which issues can be evaluated. Nor is it clear what the contrasting viewpoint to political expression might be. 

Secular beliefs may stand in opposition to religious beliefs, but there is no corresponding antithesis or perspective 

that competes with political speech. [FN183] Instead, political speech is a classic subject of speech, and a 

regulation prohibiting political expression would be characterized as content-discriminatory, not viewpointdiscriminatory. 

Therefore, under the rules governing the regulation of non-public fora, the content-discriminatory 

exclusion of political meetings should be upheld as long as it is reasonable. 



18 J.L. & Pol. 119 

It is not hard to imagine “reasonable” grounds for a school district deciding not to open its facilities to political 

meetings. It does not want students embroiled in political controversies while leaving school or becoming 

pawns in adult political conflicts. The district may fear that students will mistakenly believe that the district endorses 

the political groups using school facilities soon after classes end. The district might also worry that opening 

its buildings for political meetings might risk charges of favoritism, if some groups ended up with what were 

perceived to be better rooms or meeting times than others. The safer and more prudent course might be to have 

political groups conduct their business elsewhere. I do not suggest that these arguments are convincing to everyone 

(or to me) as a matter of policy. But that is not the applicable standard of review. The grounds suggested 

here need only be reasonable. In Cornelius v. NAACP Legal Defense and Educational Fund, [FN184] very similar 

arguments were accepted as a “reasonable” justification for excluding advocacy groups from participating in 

a federal workplace charity drive. [FN185] 

These, and similar arguments, might also be cited as support for the exclusion of religious meetings. 

However reasonable they may be, they are not sufficient justifications to withstand strict scrutiny. The 

Good News Club case makes that conclusion abundantly clear. [FN186] Thus, it is *172 quite possible, if not 

highly likely, that a court would strike down the ban on religious meetings but uphold the exclusion of political 

meetings. 

At a minimum, that is an awkward result to accept. There may be considerable overlap between the goals of 

political and religious meetings. A religious group may wish to discuss abortion from a religious perspective, 

while a political group plans to discuss abortion as a political matter. The former will be allowed to use school 

facilities; the latter will be denied access. It is true that religious groups supporting or opposing the right to have 

an abortion will have equal access to school facilities, and political groups supporting or opposing the right to 

have an abortion will be equally excluded. Still, this result is a difficult pill to swallow. That it comes about because 

of the way we interpret the Free Speech Clause adds little to its digestibility. Yet, results like this seem a 

necessary consequence of the Court's willingness to see religion as a viewpoint and, thus, regulations excluding 

religious activities from public property as viewpoint discrimination. 

2. Funding Controls and Conditions 

In many cases, government does not directly regulate private activities in a way that burdens or infringes 

fundamental rights. Instead, it conditions the provision of public benefits and government largess on an individual's 

or an institution's willingness to forego the exercise of their rights. Sometimes, the imposition of these 

conditions is constitutional. In conventional, constitutional parlance, the question is whether the government is 

attaching unconstitutional conditions to the benefits it provides. 

It is fair to say that there is no underlying theory or framework that explains how courts should determine 

whether a condition is unconstitutional or not. Indeed, in a recent law review symposium discussing unconstitutional 

conditions doctrine, of the three scholars writing on the subject of a unifying theory, one characterized the 

task as so difficult that it was not worth undertaking, another described it as impossible, and the third, while not 

venturing a possible solution to the problem, argued that the attempt to develop such a theory may be worthwhile 

even if it can never be successfully accomplished. [FN187] 

*173 While there is no unifying theory of unconstitutional conditions, courts appear to recognize a difference 

between speech and Religion Clause doctrine regarding the identification of conditions that unconditionally 

limit the exercise of rights. 



18 J.L. & Pol. 119 

In the Religion Clause case law, there is a marked tendency to seriously evaluate conditions that interfere 

with the exercise of religious rights. The seminal case, of course, is Sherbert. [FN188] When the South Carolina 

Employment Security Commission denied a Seventh Day Adventist unemployment compensation to which she 

would otherwise be entitled because she refused to accept employment that required her to work on her Sabbath, 

the Court determined that the Commission's ruling raised significant constitutional questions. The decision 

“forces [appellant] to choose between following the precepts of her religion and forfeiting benefits, on the one 

hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” [FN189] 

Accordingly, the Commission's decision was reviewed under strict scrutiny and declared unconstitutional. 

The Religion Clause case law after Sherbert, but prior to Smith, was not always so favorable. But the Court 

rarely upheld conditions that interfered with religious beliefs or practices without either serious review or a determined 

debate among the justices. In Bob Jones University v. United States, [FN190] the Court upheld the decision 

of the IRS to revoke a religious university's tax exempt, section 501(c)(3), status because the institution 

engaged in racial discrimination. In essence, the IRS concluded that because the religious tenets of Bob Jones 

University required it to practice racial discrimination in its educational policies, the university's activities were 

so contrary to accepted public policy that it could not be construed to be charitable, an essential predicate for 

this tax exempt status. [FN191] Thus, a continuation of the university's tax exempt status was conditioned on its 

violating its religious commitment to the separation of the races. 

There is some language in the Court's opinion suggesting that the loss of tax-exempt status is not a condition 

that implicates constitutional concerns. The Court states that “[d]enial of tax benefits will inevitably have a substantial 

impact on the operation of private religious schools, *174 but will not prevent those schools from observing 

their religious tenets.” [FN192] This suggests that the loss of tax-exempt status would not directly interfere 

with a school's ability to obey religious obligations. The school would lose favorable tax treatment, but it 

would not be directly restricted by law. 

The core of the Court's analysis in Bob Jones University, however, recognizes that conditional tax benefits 

do invoke rigorous constitutional review. The IRS decision is upheld because the government's interest in 

“eradicating racial discrimination in education” is sufficiently compelling that it “outweighs whatever burden 

denial of tax benefits places on petitioners' exercise of their religious beliefs.” [FN193] 

In another case, Bowen v. Roy, [FN194] the justices on the Court split on the question of whether government 

could condition eligibility for AFDC benefits on a Native American family's willingness to identify their 

daughter through her social security number, a requirement that violated the family's religious beliefs. Three 

justices argued that the condition need not be evaluated under serious review because the conditioning of benefits 

of this kind constituted a less intrusive burden on religious liberty than affirmative compulsions or prohibitions. 

Three other justices, however, insisted that Sherbert controlled the case and that strict scrutiny review 

must be applied. [FN195] 

All three of these unconstitutional condition cases were decided prior to Smith and there is no doubt that the 

Smith decision undermines future cases challenging neutral and generally applicable conditions that limit access 

to government benefits - even when compliance with the conditions would require beneficiaries to violate requirements 

of their faiths. However, Sherbert and later unemployment compensation cases survive Smith and 

remain good law. [FN196] Further, one might certainly argue that IRS determinations of what “charitable” 

means for 501(c)(3) purposes are sufficiently individualized decisions and would fall within this exception to 

Smith's general holding. Thus, a case like *175 Bob Jones University might require rigorous review today not- 



18 J.L. & Pol. 119 

withstanding the limited scope of free exercise rights after Smith. At a minimum, some conditions can still be 

challenged as unconstitutional on free exercise grounds. 

Attempts to challenge allegedly unconstitutional conditions implicating religious beliefs and practices on 

free speech grounds may be less promising. The protection provided to free exercise rights in Sherbert always 

appeared to be more extensive and rigorous than anything courts would provide to comparable challenges on 

free speech grounds. Individuals might identify a broad range of expressive activities they were pursuing that 

interfered with their pursuits of gainful employment. Yet it is hard to believe that the Court would repudiate a 

commission denying unemployment benefits to individuals who turned down available work because they were 

writing a book or participating on a volunteer basis in a political campaign. Similarly, it is doubtful that individuals 

would be allowed to refuse jobs based on their secular political philosophies. A Marxist who refused to 

work for capitalist corporations or an environmentalist rejected work at companies that polluted the environment 

would almost certainly find his loss of benefits upheld. [FN197] 

Moreover, the controlling authority dealing with conditions that allegedly violate the Free Speech Clause in 

an institutional context could not be less protective of rights and more respectful of government power and discretion. 

In Rust v. Sullivan, [FN198] petitioners challenged federal regulations limiting the speech of personnel 

at medical clinics that received federal funds to provide family planning services. Subsidy recipients were prohibited 

from providing “counseling concerning the use of abortion as a method of family planning” and could 

not provide “referral[s] for abortion as a method of family planning.” [FN199] Also, organizations receiving 

government funds were prohibited “from engaging in activities that ‘encourage, promote or advocate abortion as 

a method of family planning.”’ [FN200] Prohibited activities included lobbying for legislation, disseminating 

materials, providing speakers, initiating legal action, or financially supporting *176 groups that advocate or support 

the availability of abortion for family planning purposes. 

The Court upheld both regulations in sweeping terms. When government subsidizes certain speech activities, 

it may decline at its discretion to support other messages. Recipients of government grants must act and 

speak within these constraints. [FN201] Further, aside from specific exceptions, such as public forums and universities, 

as long as the conditions attached to government funds were directed at programs and services, such 

conditions would be upheld without regard to the burdens they imposed on privately funded speech and expression. 

A clinic receiving family planning funds must set up a separate affiliate that did not receive government 

support if it intended to engage in privately funded, expressive activities supporting the availability of abortion 

services. [FN202] 

If religion is characterized as speech, the effect of Rust on government funding of religious institutions engaging 

in expressive activities, such as religious schools, may be significant. The government may certainly claim 

that it is only interested in funding secular educational activities. Indeed, the Establishment Clause may prohibit 

it from directly funding religious worship, proselytizing, or instruction. [FN203] Under Rust, the government 

may disallow any project or program receiving public financial support from expressing or advocating religious 

messages of any kind, even with its own private resources. As was true of the family planning clinics in Rust, religious 

schools would have to develop separate affiliates to engage in religious programming. Since religious 

schools often try to insure that religious messages influence and pervade all of the school's educational program, 

not just distinct classes in religion, [FN204] these conditions would be deeply intrusive and would require a 

transformation of the school's operations. There is little doubt that the family planning clinics in Rust felt similarly 

burdened, but their constitutional protests fell on closed judicial ears. Under Free Speech Clause doctrine, 

there seems little basis for contending that religious institutions should receive more favorable treatment. 



18 J.L. & Pol. 119 

*177 3. The Problem of Benign Discrimination 

One of the most pernicious consequences of the Smith decision is its effect on minority religions. As even 

Justice Scalia was forced to concede, minority faiths are likely to experience much greater difficulty in obtaining 

accommodations of their religious needs from the political branches of government than larger, more established 

religions. [FN205] Dissenting justices in Smith emphasized this concern in their criticism of the majority's position. 

[FN206] But the difficulty minority faiths will encounter in convincing political majorities to respect their 

religious practices is only part of the problem. They will also confront serious constitutional obstacles. In particular, 

legislative accommodations and exemptions of religion can be challenged under the Establishment Clause 

on the grounds that the government's actions impermissibly promote religion or unfairly discriminate among religious 

faiths. 

One important weapon minority faiths may utilize in defending legislative exemptions and accommodations 

of their religion against Establishment Clause challenges is a political process analysis. True, the willingness of 

courts to accept a political process argument is uncertain. There are recognized problems with such an approach. 

But political process arguments may have some validity from the perspective of Religion Clause jurisprudence. 

In contrast, if religion is characterized as speech and protected under free speech doctrine, the availability 

of political process arguments for religious minorities seems completely foreclosed. Thus, a Speech 

Clause approach undercuts religious exemptions and accommodations in two ways. It renders such accommodations 

vulnerable to challenge on viewpoint discrimination grounds, discussed previously, and it reduces the 

availability of political process arguments to defend accommodations against Establishment Clause attacks. 

The core principles underlying a political process analysis, developed in the famous Carolene Products footnote 

[FN207] and amplified by judges and scholars, are familiar. The courts rigorously review laws disadvantaging 

discrete and insular minorities because we mistrust the workings of the *178 political process when 

majorities burden isolated minorities. It is much harder to justify judicial intervention when majorities sacrifice 

their own interests and incur costs in adopting legislation that benefits smaller, less politically powerful groups. 

[FN208] 

Political process arguments are controversial, of course. In equal protection cases, the current Court has rejected 

this thesis in evaluating affirmative action programs that favor racial minorities. [FN209] But there is a 

powerful dissenting position on this issue. [FN210] Several justices, past and present, reject the majority's application 

of strict scrutiny to benign discrimination. Their opinions are grounded on a tradition of vigorous criticisms 

of the Court's developing commitment to formal equality in this area. [FN211] 

The relevance and persuasiveness of political process arguments in interpreting the Religion Clauses is even 

more complicated than equal protection doctrine. In part, this is a consequence of important differences 

between religion and race. Race is an artificial construct that has been used unreasonably and unfairly to treat 

people differently who are similarly situated. Thus, benign laws that discriminate on the basis of race are 

primarily justified as a response to prior mistreatment and oppression. Because that history of disadvantagement 

was predicated on race, it is argued, effective remedial legislation must also focus on race. [FN212] To critics of 

such affirmative action, this race-specific cure is as problematic and dangerous as the disease. [FN213] 

Religions, on the other hand, are distinct from each other in terms of their beliefs and practices. Frequently, 

treating people of various faiths differently is not a response to past invidious discrimination. It is a recognition 

of current reality that members of different religions are *179 not similarly situated because of their distinct be- 



18 J.L. & Pol. 119 

liefs and practices. [FN214] Thus, treating people differently because of their religion is necessary if people of 

diverse faiths are to be recognized as equally worthy of respect. 

Moreover, the basis for an exemption, a form of benign discrimination, is grounded on what people think 

and do, not on physical characteristics such as race. Because of this difference, most religious exemptions do 

not need to refer to or name particular denominations to accomplish their benign objectives the way most affirmative 

action programs identify the beneficiaries of the program by their race. Religious exemptions specify religious 

activity or belief-based obligation as the predicate for relieving persons and institutions from regulatory 

burdens. Correctly or not, distinctions based on conduct have always been viewed as more legitimate than distinctions 

based on status (particularly status grounded on physical characteristics such as race or gender), and 

courts do not typically characterize belief- or activity-based distinctions as facially discriminatory, but rather as 

neutral laws disparately impacting different faiths. [FN215] Accordingly, the issue of benign discrimination and 

political process justifications for such discrimination has arisen far less often under the Religion Clauses than 

under the Equal Protection Clause. 

Still, the intuition that political process concerns should and do influence the constitutionality of religious 

exemptions is difficult to avoid. The Court did not explicitly discuss political process concerns in Gillette v. 

United States [FN216] when it upheld federal conscientious objector provisions that exempt religious groups 

who oppose all war, such as Quakers, from conscription, but denied an exemption to Catholics whose religious 

tradition distinguishes between participation in just and unjust wars. Yet surely this would have been a different 

and more difficult case if the conscientious objector statute had the effect of shielding all mainline Protestant 

groups from conscription, leaving the burden of the draft to fall entirely on Catholics, less popular Protestant denominations, 

and non-Christians. 

Certainly, some Supreme Court justices believe that political process concerns are relevant to determining 

the constitutionality of religious *180 exemptions and accommodations. Justice Scalia's impassioned dissent to 

the majority's decision in Kiryas Joel to strike down a law accommodating a small Hasidic community in New 

York could hardly have been more emphatic in this regard: 

The Founding Fathers would be astonished to find that the Establishment Clause - which they designed 

“to insure that no one powerful sect or combination of sects could use political or governmental 

power to punish dissenters” . . . has been employed to prohibit characteristically and admirably American 

accommodation of the religious practices . . . of a tiny minority sect. [FN217] 

It is equally clear that other Supreme Court justices flatly reject this proposition. In contrast to Scalia's 

protests, Justice Souter's majority opinion in Kiryas Joel explained that “[h]ere the benefit flows only to a single 

sect, but aiding this single, small religious group causes no less a constitutional problem than would follow from 

aiding a sect with more members or religion as a whole.” [FN218] 

At present, probably more justices oppose the application of a political process model to Establishment 

Clause challenges to accommodations and exemptions than support such an approach. [FN219] Commentary is 

also divided on the issue, with some scholars strongly endorsing a political process model and others sharply criticizing 

it. [FN220] The issue remains open. Both sides of the debate offer significant arguments. Like the conflict 

over a political process framework for interpreting the Equal Protection Clause, one side may have the advantage 

today, but the dispute remains active and unresolved. 

Free speech doctrine is different. Here, unlike interpretations of the Religion Clauses and the Equal Protec- 



18 J.L. & Pol. 119 

tion Clause, there is no *181 commitment on the Court to a political process approach. Formal neutrality or 

equality is the ruling philosophy. Government may not use its regulatory power to increase the ability of unpopular 

or minority voices to reach their audience. All points of view must be treated the same. [FN221] Even in the 

highly contentious area of speech during election campaigns, the Court has been adamant on this issue. In response 

to the claim that the government's interest “in equalizing the relative ability of individuals and groups to 

influence the outcome of elections” justified restrictions on expenditures relating to clearly identified candidates, 

the Court proclaimed that “the concept that government may restrict the speech of some elements of our society 

in order to enhance the relative voice of others is wholly foreign to the First Amendment.” [FN222] Benign 

discrimination among viewpoints of speech is unconstitutional. 

In light of this doctrinal distinction between the Religion Clauses and the Free Speech Clause, an additional 

disadvantage, or cost, in adopting a speech model becomes apparent. If religious activities are characterized as 

the practice of religion, and if laws regulating such activities are reviewed under the Free Exercise and Establishment 

Clauses, discretionary exemptions and accommodations may be justified under a political process analysis. 

There is no guarantee that political process arguments will be accepted, but there is support for this approach 

on the Court and in commentary. Therefore, the arguments cannot be dismissed out of hand. The opportunity 

for argument exists, and acceptance of political process justifications for exemptions and accommodations 

would not require dismantling the current doctrinal framework. 

In contrast, free speech doctrine, as it is currently interpreted, directly forecloses a political process approach. 

If religious activities are characterized as expression, and the review of their regulation is *182 controlled 

by free speech principles, then the fact that an exemption from a generally applicable law relieves a 

minority faith from burdens that interfere with its practices will have no bearing on the constitutional analysis. 

That is a real cost. At least it is a real cost for those who believe that there is an equality dimension, in the equal 

protection sense, underlying the Religion Clauses and that recognizing the majority and minority status of religions 

has an important role to play in achieving equality among the diverse faiths in our communities. Repudiating 

the relevance of political process concerns to the review of religious exemptions, as free speech doctrine requires, 

denies religious minorities a potentially valuable weapon for defending the accommodation of their beliefs 

and practices. 

C. Should Religion Be Characterized as Speech? 

On balance, I strongly believe that the correct answer to the question of whether religion should be characterized 

as speech and protected under the Free Speech Clause is “sometimes” and “with caution.” If the question 

before us is simply whether religion can be understood as a subject or viewpoint of speech, or whether religion 

is expressive in the conventional understanding of that term, the question is a relatively simple one. Clearly, 

there is enough of a speech dimension to many religious activities, and religions play an important enough role 

in the marketplace of ideas, to justify a different answer than the one I propose. 

As I indicated in the beginning of this article, I think that the simplistic framing of this question is the wrong 

way to understand this issue. It employs the wrong criteria and misconstrues the nature of religion. As I have 

noted before, “[r]eligion is a multi-dimensional constitutional interest. In its varying aspects, it implicates personal 

liberty, group equality, and freedom of speech.” [FN223] Put simply, there is so much substance to religion 

that we can justifiably understand it to be, and to be protected as, speech, personal autonomy, a constitutionally 

recognized class, or some combination of the three. [FN224] Asking whether *183 speech is a sufficient 



18 J.L. & Pol. 119 

aspect of religion to justify treating religious activities as expression for constitutional purposes does not adequately 

resolve the problem of the place of religion in the constitutional scheme any more than asking whether 

there is a sufficient self-defining dimension to religion to justify treating it as a privacy and personal autonomy 

right, or asking whether religions are sufficiently like other protected classes and classifications that their regulation 

necessarily invokes equality principles. In one sense, an affirmative answer is appropriate to all three inquiries. 

How we choose to understand and protect religion is based in part on history. [FN225] More importantly, 

it represents a normative vision of how we intend to put these diverse constitutional pieces together to 

form a picture of the relationship between church and state and the protection to be provided to religious practices 

and institutions. 

I do not mean that religion should never be understood as speech for constitutional purposes. Sometimes religious 

activities are so similar to secular speech activities that they should be treated as expression. Religious 

leafleting or door-to-door soliciting is speech intended to persuade the listener and should be protected as 

such. But we should not mistake the part for the whole. Religion is not simply an idea to be debated along with 

other ideologies. It is about the practice of living ethically, [FN226] one's role in a community, [FN227] and, 

for many, the relationship between the individual and G-d. [FN228] It is about the practice of married life, raising 

a child, charity, devotion to the Divine, congregational duties, and too many other activities to list. If practicing 

law or medicine is conduct, raising a family in a Jewish or Catholic home, operating a church or mosque, 

and fulfilling the obligation to *184 repair the world is conduct as well. [FN229] Much of the speech expressed 

in the practice of religion, including prayer, is part of an integrated whole that encompasses much more than the 

communication of ideas. [FN230] 

In the preceding analysis, I have adopted something of a pragmatic perspective. In response to what I perceive 

to be too much of an uncritical acceptance of a constitutional framework that equates religion and speech, 

I have tried to provide a fair evaluation of the benefits and disadvantages of this approach from the perspective 

of someone who values religious liberty. When the downside of this equation is described accurately, I think the 

balance is substantially one-sided. In practical terms, religion loses more than it gains when it is characterized 

as speech and laws relating to religion are evaluated under free speech doctrine. This is particularly the case 

when one recognizes that most of the virtues of treating religion as speech depend on our continuing commitment 

to the Smith regime of formal neutrality. In Part II of this article, I seek to explain why various efforts to 

mitigate the impact of Smith are ultimately unpersuasive and unsuccessful. Characterizing religion as speech 

can be seen in a similar light. At best, it is one more unsuccessful attempt to avoid the harsh reality of Smith. 

Putting pragmatic concerns aside, for the moment, there are other reasons to reject the religion-as-speech 

model. As an abstract proposition, it is a mistake to characterize religion as speech because doing so undermines 

our commitment to the idea that there is something unique and distinctive about religion in life and in 

constitutional law. Ultimately, I think Justice White was correct in his dissent in Widmar when he worried that 

equating religion with speech would empty the Religion Clauses of their content. [FN231] Even in the most 

*185 egregious situation, the government's destruction of a religion, one of the few burdens on religion recognized 

to be unconstitutional after Smith, speech doctrine could easily be employed as a substitute for free exercise 

protection (destroying a religion is easily characterized as suppressing an idea and silencing a voice). 

But destroying a religion is much more than stifling a message. It often involves the destruction of a community 

and a way of life. [FN232] Religious people of the faith under attack would not only lose the right to 

speak but would also lose their communal identity and the autonomy to determine how they will live. 



18 J.L. & Pol. 119 

A similar analysis applies to less extreme and more probable regulations of religion. Regulating the size, 

design, and location of a house of worship, and the activities permitted to occur in it, implicates free speech concerns. 

But churches are much more than institutionalized speakers in the marketplace of ideas, and few communities 

regulate them because of the message they communicate. Treating religion as speech simply leaves too 

many other aspects of religion out of the picture on the constitutional cutting room floor. The result is a truncated 

version of religion and a constitutional doctrine that does not adequately serve the interests it purports to 

protect. 

Recognizing that religion is more than speech and should only be characterized as speech for constitutional 

purposes in limited circumstances, however, does not mean that our understanding of the Religion Clauses 

should ignore the implications of regulating religion for the communication of ideas. Regulating religion impacts 

the marketplace of ideas. Speech concerns should inform our interpretation of the Religion 

Clauses. Avoiding distortion of the marketplace of ideas should be one of the goals that guide the development 

of Free Exercise and Establishment Clause doctrine. That objective, however, is only one of several purposes of 

the Religion Clauses. It must be reconciled with personal autonomy and equality goals and with structural concerns. 

Speech belongs in the package, but only as part of a complex constitutional framework. [FN233] 

*186 III. The Problem with Formal Neutrality 

One core idea serves as the foundation for a legal regime that protects and promotes religious liberty and 

equality as constitutional values. There must be a commitment to, and respect for, religious diversity in belief 

and practice. The essential nature of this predicate commitment should be self-evident. The range of religious 

beliefs throughout the United States is extraordinarily broad. The variety of rituals, forms of worship, and rules 

of conduct practiced by religious individuals and groups is equally substantial in scope. [FN234] A free society 

that aspires to protect the religious liberty of its citizens and to treat religious individuals as equal citizens has to 

accept this reality of difference. We are not all of one faith. 

Of course, differences in fact do not always require differences in treatment. Sometimes liberty and equality 

require that differences among religions should be ignored by the law. Law should not be used to reward or 

penalize people because of their religious beliefs. For aspects of life in which religious differences do not distinguish 

people or justify treating them differently, religion should be irrelevant. Jews, Catholics, and Moslems 

all are entitled to exercise the franchise, and their votes are tabulated the same way - one person, one 

vote. Similarly, there can be no exceptions from laws that are necessary to protect the public health and 

safety. Everyone caught driving through a red light gets a ticket. 

Often, however, liberty and equality in law require that people of one faith should be treated differently than 

people of another religion. Religious people who are not similarly situated in their beliefs and practices should 

not be treated as if they were fungible clones. In aspects of life in which religion matters for particular faith 

communities, government rules that ignore religious distinctions coerce *187 a false homogeneity among individuals 

who are different in fundamental ways. Religious liberty does not exist when the burden of a law that interferes 

with the practice of one's faith is ignored because the law does not interfere with the majority of people 

who practice a different faith. Religious equality is sacrificed when laws are tailored to accommodate the needs 

of majoritarian or favored religions, but not minority or disfavored faiths. [FN235] 

A legal regime grounded on formal neutrality is inconsistent with this core principle. I do not intend to argue 

this point again here. The voluminous criticism directed at the Smith decision accomplishes that task with 



18 J.L. & Pol. 119 

more than sufficient acumen and vigor. [FN236] My goal for the second part of this article is more modest. I 

want to demonstrate that there are no escape hatches from the formal neutrality prison created by Smith. 

Both of the exceptions to formal neutrality recognized in Smith - the hybrid rights exception and the individual 

exemption exception - are untenable except, perhaps, in the most narrow of circumstances. Moreover, reliance 

on the political branches of government to provide exemptions and accommodations is unjustified. 

Political accommodations and exemptions are inadequate not only because we may reasonably doubt the 

state's willingness to provide the necessary relief from its laws, but also because they raise almost unsolvable 

problems regarding the nature and scope of any constitutional standard of review to be applied to them. 

Thus, there is no effective way to mitigate the formal neutrality standard adopted in Smith. If formal neutrality 

is fundamentally inconsistent with a constitutional regime that protects religious liberty and equality, the 

problem can be solved only by overruling Smith. 

A. Hybrid Rights 

As noted earlier, the Smith Court's exception for hybrid rights quite obviously served a specific function. It 

allowed the Court to avoid overruling Yoder, [FN237] a long accepted precedent protecting free exercise rights 

against a neutral law of general applicability. [FN238] The solution, *188 which fooled no one, was to characterize 

Yoder as a hybrid rights case. Amish parents were not allowed to violate Wisconsin's compulsory education 

requirements solely because sending their children to public school violated their religious convictions. It 

was only because state law implicated two constitutional rights, the free exercise of religion and the right of parents 

to control the upbringing of their children, that their constitutional claim was vindicated. Only when state 

action involved a “hybrid situation” in which the free exercise claim was connected to some other right, such as 

freedom of speech or freedom of association, would the Court apply strict scrutiny to the challenged law. 

[FN239] 

The conventional criticism of the hybrid rights exception (in addition to its being made up out of whole 

cloth) is that it is intellectually incoherent. To use the crude local vernacular, it just makes no sense. Put 

simply, a hybrid right must mean more than the idea that a law implicates constitutional interests because almost 

all laws satisfy that standard. A hybrid right must also mean less than the idea that an independently viable 

right, other than free exercise, is being unconstitutionally infringed because, if that is the definition of hybrid 

rights, the law is unconstitutional whether there is a burden on the free exercise of religion or not. [FN240] 

Stuck between these unenviable alternatives, lower courts have not welcomed the hybrid rights exception with 

open arms. [FN241] Some courts have rejected the idea explicitly. [FN242] Others insist that it applies only 

when plaintiffs can *189 demonstrate that an independently viable constitutional claim along with free exercise 

can be asserted. [FN243] Still others have attempted to avoid the issue. [FN244] And some courts, obviously 

pressured by the conviction that the Supreme Court must have meant something intelligible when it created this 

exception in Smith, struggled to give meaning to hybrid rights by suggesting that they encompass a “colorable 

claim” based on some constitutional right linked to an independent free exercise claim. [FN245] 

Unfortunately, the idea of a colorable claim in this context is also unintelligible. Colorable claim language 

exists in a variety of legal circumstances but it is almost always in terms of a threshold, temporal contingency. 

Thus, courts may allow suits or discovery to go forward *190 only if a claim is colorable, or, to cite one 

analogy used by a Federal Court of Appeals, a colorable claim is like a claim with sufficient likelihood of success 

on the merits to justify the issuance of a preliminary injunction. [FN246] In all of these cases, however, the 



18 J.L. & Pol. 119 

colorable claim is only accepted as a basis for reaching a decision or moving forward before the claim can be 

fully considered on the merits. Once a claim is fully adjudicated, whether it was initially colorable or not becomes 

irrelevant. At that point in time, it is either a valid claim or it is not. The hybrid rights exception to Smith, 

however, does not represent a threshold inquiry that will be more fully evaluated at a later time. It determines 

the appropriate standard of review to be applied in reaching a final judgment. It is hard to understand why we 

should continue to characterize a claim as colorable at that point in the adjudication, rather than conclude on the 

merits whether it is valid (and clearly more than colorable) or invalid and no longer colorable. 

There is one other possible explanation for hybrid rights that may have some merit. It is grounded on the recognition 

that not all alleged infringements of rights are subject to the same standard of review. Thus, for example, 

a content-neutral speech regulation restricting residential picketing is more than a colorable claim that a 

law violates the Free Speech Clause. It is a sufficient infringement of freedom of speech to justify applying a 

form of intermediate level scrutiny to the law to determine if it can be adequately justified. [FN247] Perhaps one 

may plausibly argue that when the ban on residential picketing is applied to religiously motivated picketing expressing 

a religious message, a hybrid rights situation exists, and the standard of review applied to the law 

should be ratcheted up to strict scrutiny. 

Or consider another example. In Planned Parenthood v. Casey, [FN248] the Court upheld both an informed 

consent requirement and a 24-hour waiting period on the grounds that neither law unduly burdened the right of a 

woman to choose to have an abortion. Similar statutory provisions, however, were struck down under strict scrutiny 

in earlier cases subsequently overruled by Casey. [FN249] Under a hybrid rights analysis, *191 if either of 

these two regulations is applied to a woman seeking a religiously motivated abortion, arguably the law would receive 

strict scrutiny and would be invalidated as applied, instead of being upheld under Casey's more deferential 

undue burden standard. 

I think this understanding of hybrid rights is coherent. A hybrid rights situation involves a neutral law of 

general applicability that substantially burdens the exercise of religion and sufficiently burdens some other constitutionally 

protected interest to invoke the application of the requisite standard of review, whether it is an undue 

burden test, some form of intermediate level scrutiny, or any other substantive standard short of strict scrutiny. 

If strict scrutiny were otherwise applicable because of the burden on a right, then the hybrid rights analysis 

would be irrelevant. The burden on free exercise would add nothing extra to the court's analysis. If no fundamental 

right were infringed, and the law received rational basis review, no hybrid right would be found to exist, 

since no right other than the exercise of religion was burdened sufficiently to warrant serious review of the 

state's justification for its law. 

The problem with this understanding of hybrid rights is not lack of coherence. It is that it violates basic constitutional 

intuitions about the nature of fundamental rights. Justice Scalia in Smith has it exactly backwards. 

The least appropriate circumstances for accepting free exercise exemptions are those in which some other 

right, in addition to freedom of religion, is being exercised by the claimant and is burdened by the challenged 

law. Consider the abortion example described above. *192 Under a hybrid rights approach, if regulations requiring 

informed consent or a 24-hour waiting period are applied to a woman seeking an abortion for secular 

reasons, the regulation is reviewed under the undue burden standard and is upheld. If the woman is seeking an 

abortion for religious reasons, this application of the law will be reviewed under strict scrutiny and invalidated. 

I submit that this is a very odd conclusion. It is odd because it justifies treating people differently with regard 

to their exercise of fundamental rights. Hybrid rights analysis suggests that religious people should be 



18 J.L. & Pol. 119 

treated preferentially with regard to the exercise of fundamental rights when their religious beliefs influence the 

way they exercise their rights. The protection provided free speech, the right to vote, the right to marry, maybe 

even protection against unreasonable searches and seizures, all may vary depending on whether or not religious 

conduct and institutions are being burdened. That cannot be right. There is an equality dimension to liberty 

rights. Part of the core idea of fundamental rights is that all citizens have an equal right to exercise 

them. Religious people do not get special treatment with regard to these basic freedoms. No one does. 

The strongest case against the use of a hybrid rights analysis involves freedom of speech. If a content-neutral 

speech regulation restricts religious speech, or religiously-motivated speech, and the court applies strict scrutiny 

to the law under a hybrid rights analysis, then religious speech will receive more stringent protection than 

secular speech whenever time, place, and manner rules are at issue. Many restrictions on speech that would be 

upheld under the intermediate level review applied when secular speech is burdened will be invalidated under 

the strict scrutiny standard that hybrid rights analysis requires when religious speech is at issue. Religious leaflets, 

picketing, and signs may be allowed when secular leaflets, picketing, and signs are prohibited. Viewpoint 

discrimination in favor of religious speech would be built into the very structure of the First Amendment. This 

result is unacceptable. [FN250] 

The problem with speech may be the most obvious obstacle to a hybrid-rights approach, but the difficulty 

with this idea goes deeper and pervades more rights than freedom of speech or the right to vote, which have obvious 

equality dimensions. Fundamental rights are the *193 entitlements of citizenship. They are imbued with 

concepts of individual dignity. Of all areas touched by law, it should be the hardest to justify different treatment 

here. If the idea that citizens are of equal worth does not mandate equal respect with regard to the exercise of 

fundamental rights, what other meaning does it have in our constitutional framework? 

B. Individualized Exemptions 

Just as the exception in Smith for hybrid rights was created to avoid overruling Yoder, the exception for individualized 

exemptions was developed to avoid overruling the Court's other seminal free exercise precedent, 

Sherbert, [FN251] and subsequent unemployment compensation cases applying Sherbert's reasoning. [FN252] 

As the Court's revisionist history in Smith put it, these cases did not hold that neutral laws of generally applicability 

that substantially burden the exercise of religion must be justified under strict scrutiny. Rather, “our decisions 

in the unemployment cases stand for the proposition that where the State has in place a system of individual 

exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling 

reason.” [FN253] 

Unlike the hybrid-rights exception, there is a core of coherence to this exception. First, it is clearly consistent 

with Smith to review the administration of a facially neutral law of general applicability under strict scrutiny 

if the law as enforced discriminates against religious practices. An official or commission that accepts a range 

of requests for exemptions from the rigors of a law grounded on secular concerns, but refuses to accept any similar 

requests for exemption based on religious hardship, is engaged in the same kind of discrimination on a caseby-case 

basis that the legislature engages in, in the aggregate, when it discriminates against religious practices 

on the face of the law. Both kinds of decisions should be strictly scrutinized and struck down as unconstitutional. 

The individualized exemption exception also is arguably coherent, even when it does not involve overt discrimination 

against religion, if it is limited to those situations where the state provides the officials, charged with 



18 J.L. & Pol. 119 

administering and enforcing a law, with substantially *194 unguided discretion in determining how and against 

whom the law will be enforced. The problem here is similar to that which arises under free speech doctrine when 

officials are granted unbridled discretion in licensing, or granting permits for, expressive activity. The risk of bias 

is sufficiently high, and the effectiveness of after-the-fact review sufficiently low except in the most egregious 

cases, that a prophylactic rule is necessary. Accordingly, it may make sense to inform officials, granted 

generally unfettered authority, that they will be required to justify their decisions that substantially burden the 

practice of religion under some level of rigorous review. 

The problem with understanding the individualized assessment exception in the limited sense of the two examples 

described above is obvious. It is an extremely narrow and generally unhelpful exception if these are its 

parameters. Few statutory frameworks will satisfy its requirements. Accordingly, some commentators have attempted 

to read the individualized assessment exception in Smith far more broadly. They argue that the focus of 

the individualized assessment exception is not so much on a state official's or commission's exercise of unfettered 

discretion in deciding whether or not to grant exemptions, but rather on the state's under-inclusive refusal 

to extend the exemptions granted to secular interests to religious claims for accommodation. The genesis of 

this contention is not always clearly identified. Sometimes it appears to be grounded directly on the individualized 

assessment exception in Smith. Alternatively, it is based on a definition of general applicability suggesting 

that under-inclusive laws fall outside the scope of those neutral and generally applicable laws to which the Smith 

holding applies. [FN254] 

*195 In either case, it is argued that any legislation which contains at least one secular exemption or a pattern 

of secular exemptions must also provide for religious exemptions--unless the state has a compelling interest 

in rejecting the religious exemption that cannot be adequately furthered in any other way. [FN255] Under the 

strongest version of this analysis, it does not matter that the state has also rejected numerous secular requests, so 

that the denial of a request for a religious exemption cannot be considered discriminatory. All statutory frameworks, 

which include exemptions, receive heightened review whether they are discriminatory or not. Religion is 

granted something like most favored nation status. If any secular interest can justify an exemption from a law, 

then the state must recognize that religious interests also deserve to be exempt from the law. [FN256] 

Eugene Volokh has raised several serious challenges to this expansive understanding of the individualized 

exemption exception in Smith. An extraordinary range of laws contain exemptions to their application including 

most civil rights laws, contract law, trespass law, copyright law, and even homicide statutes. The extraordinary 

scope of reading the Smith exception this way militates against such an understanding. Moreover, the mere existence 

of some secular exemptions does not explain why religious exemptions must also be recognized. Laws 

protecting private rights are complex generalizations that may cover a range of circumstances, including a significant 

number where countervailing interests are particularly strong, where the purpose of the law is especially 

weak, and where other checks or laws make the enforcement of the law less necessary. This legislative reality, 

standing alone, does not justify the provision of religious exemptions in every *196 case where a law contains a 

secular exemption. [FN257] There is nothing about the existence of secular exemptions that demonstrates why 

laws containing them should be treated differently than laws that lack exemptions under the theory and reasoning 

of the Smith decision. 

Richard Duncan has thoughtfully responded to Volokh's arguments in a recent article. [FN258] Citing language 

in the Court's Lukumi decision for support, [FN259] Duncan argues that a law substantially burdening the 

exercise of religion is not a law of general applicability for free exercise purposes if it is unacceptably underinclusive 

because of the exemptions it contains. Accordingly, such a law must receive strict scrutiny review. 



18 J.L. & Pol. 119 

Duncan explains, 

In order to determine if a law restricting religious exercise is underinclusive, one must ask two questions. 

First, what governmental purposes are being served by the restrictive law at issue? Second, does 

the law exempt or otherwise leave unrestricted secular conduct that endangers those governmental purposes 

in a similar or greater degree than the prohibited or restricted conduct of the party seeking the protection 

of the Free Exercise Clause? In other words, a law burdening religious conduct is underinclusive, 

with respect to any particular government interest, if the law fails to pursue that interest uniformly against 

other conduct that causes similar damage to that government interest. [FN260] 

Duncan cites a few recent lower court decisions to support his thesis. [FN261] Probably the most salient precedent 

is Fraternal Order of Police v. Newark, [FN262] a Third Circuit case. The Newark Police Department adopted 

a rule prohibiting police officers from wearing beards. But there were two exceptions. Undercover officers 

and officers for whom daily shaving caused medical problems did not have to comply with this grooming standard. 

Two Muslim officers, whose religious beliefs *197 required them to grow beards, brought a free exercise 

claim against the Department when they were denied an exemption from the policy. 

The Third Circuit ruled in favor of the religious claimants. The purpose of the regulation was to achieve 

uniformity of appearance among police officers. The exemption for undercover officers did not make the law 

underinclusive because the Department has no interest in maintaining uniformity of appearance among undercover 

agents whose identity as police officers was to be kept secret. Also, such uniformity would be inconsistent 

with the roles they are being asked to play and would interfere with their ability to perform their duties. The 

existence of the medical exemption, however, undermined the general applicability of the regulation because it 

subordinated the Department's uniform appearance goal in circumstances where that objective clearly applied. 

The Department may have reasonably believed that medical concerns justified such an exemption, but 

once it made that value judgment, it should have extended the exemption to cover religious concerns as 

well. The failure to do so rendered the regulation underinclusive and subjected it to strict scrutiny review. 

[FN263] 

In addition to citing relevant authority, Duncan responds directly to Volokh's arguments. The scope of the 

individualized exemption exception will not be as broad and problematic as Volokh suggests if the most favored 

nation analogy for religion is accepted. First, extraordinary and inconsequential exceptions just do not 

count. Thus, Volokh's argument that there is an exception to state trespass laws for necessity situations, for example, 

is irrelevant because it is so unusual and so seldom applied. [FN264] Second, a secular exemption makes 

a law underinclusive only when the exemption is inconsistent with the law's purpose. Thus, an exception to a 

law prohibiting smoking marijuana for the medical use of marijuana does not make the law underinclusive if the 

purpose of the law is to promote the state's public health goals. Since the medical marijuana exception only allows 

an individual to smoke marijuana when the medical utility of the drug outweighs its harmful effects, the 

exception is consistent with and furthers the uniform achievement of the state's health goals. [FN265] 

Nor would the analysis change if the state's prohibition against smoking marijuana served multiple purposes; 

a public health goal and *198 the goal of avoiding harm to innocent third parties, such as injuries resulting from 

auto accidents that might occur if people smoked marijuana before driving. A law is generally applicable and not 

underinclusive for free exercise purposes “so long as the law addresses at least one legitimate governmental purpose 

and is not underinclusive with respect to that purpose.” [FN266] Since the medical marijuana exception is 

not underinclusive with regard to the state's public health goals, it does not matter that it is underinclusive with 

regard to other state interests furthered by the general prohibition against smoking marijuana. [FN267] 



18 J.L. & Pol. 119 

Since Duncan's approach is far more limited than the more expansive version of this argument that requires 

strict scrutiny review of any law containing a secular exemption that substantially burdens the exercise of religion, 

it avoids some of the practical difficulties cited in Volokh's critique. Further, Duncan argues this modified 

interpretation of the Smith exception is grounded on conventional constitutional foundations. 

[The] underinclusion test can also be understood as harmonizing free exercise doctrine with the 

Court's equal protection analysis concerning legislative classifications that unequally burden fundamental 

rights. In Lukumi, the Court interpreted the Free Exercise Clause as requiring the same strict scrutiny 

standard for underinclusive laws burdening religion that the fundamental rights/equal protection doctrine 

mandates for “underinclusive government action that burdens the right to procreation, the right to travel, 

and other fundamental constitutional rights.” [FN268] 

I certainly sympathize with the efforts of commentators such as Professor Duncan who struggle to salvage 

something of free exercise value from the wreckage left by the Smith decision. As a litigator I would use these 

arguments. Until they are directly repudiated by the Court, they are legitimate interpretations of Smith and 

Lukumi, both of which *199 are far from clear as to the meaning of general applicability and the individualized 

exemptions exception. Still, as a long-term proposition, I think this approach to free exercise rights cannot stand. 

There are too many conceptual and practical problems with the analysis for it to be accepted. 

To begin with, at the most abstract level, there is a strange incongruity between the individualized decisionmaking 

exception, particularly its expansion to include laws containing categorical exemptions, and the hybridrights 

exception in Smith. The individualized decisionmaking, categorical exemption exception is grounded on 

the principle that the state should not discriminate with regard to the exercise of fundamental rights. Thus, religious 

conduct should not be denied exemptions from laws when the state accommodates secular needs burdened 

by the same statute. But the hybrid-rights exception points in exactly the opposite direction. It requires treating 

religious people differently with regard to the exercise of fundamental rights by giving them preferential treatment. 

It seems strange that these two exceptions in Smith should be so fundamentally inconsistent with each 

other. 

More specifically, even without this inconsistency, the very foundation for the most favored nation framework 

is intellectually incoherent. Under Smith, the right to engage in religious practices is subordinate to any 

single legitimate state interest advanced by a unitary statute. If that is so, why are religious practices not equally 

subordinate to two or more legitimate state interests that are reconciled in a single statute through the use of exemptions? 

Consider the regulations at issue in the Newark Police Department case as an example. One goal of 

the Department is to promote the uniform appearance of its officers. Pursuant to that objective, standing alone 

and without exemptions, a regulation requiring all officers to be clean shaven will be upheld even when it is applied 

to police officers whose religious obligations prohibit them from shaving. 

Now assume that the Police Department asserts an interest in the medical health of its officers. Healthy officers 

are more likely to be available for duty and perform at a higher level of efficiency. This interest could 

also justify interference with religious obligations. Thus, standing alone and without exemptions, a regulation 

prohibiting officers from engaging in cosmetic practices that resulted in adverse medical consequences would be 

upheld even when it was applied to officers whose cosmetic practices were religiously mandated. If shaving 

*200 resulted in adverse medical consequences for certain officers, the Department could prohibit them from 

shaving, even if the officers' religious obligations required them to be clean-shaven. 

Finally, assume the Police Department asserts it is trying to accommodate both of its goals, maintaining a 



18 J.L. & Pol. 119 

uniform appearance and promoting the medical health of its officers, by creating an exception from the requirement 

that officers must be clean-shaven for those few officers for whom such a requirement would be medically 

problematic. It is true that medical concerns outweigh religious obligations under this regulatory scheme, but 

they would be allowed to do so standing alone in any case. It is hard to understand why the merging of two state 

interests, each of which is independently sufficient to justify the burdening of religious practices, must be subordinated 

to religious needs and interests under strict scrutiny review. 

One response to this argument is that it miscasts the exception the Police Department provides to officers 

who have a medical condition that prevents them from shaving. This exception is not intended to further any departmental 

interests. Rather, it is for the private benefit of the officers themselves. The problem with this argument 

is that it is extremely difficult to distinguish between private and public interests in most circumstances. 

More often than not, the state can easily identify some public goal that is advanced by exempting a 

private interest from a regulatory burden. 

This brings us to the second problem with the modified most favored nation framework advanced by Duncan 

and others. This approach really requires double standards of review if it is to be effective. Duncan concedes 

that his rule requiring the rigorous review of the denial of religious exemptions will not apply when there is at 

least one legitimate state interest as to which the law at issue is not underinclusive. But the only way to prevent 

this modification from creating a doctrinal escape hatch a truck could drive through is to apply some reasonably 

rigorous standard of review to whatever purposes the state asserts are being furthered by the challenged 

law. Otherwise the state will always be able to come up with some rational purpose that is allegedly furthered 

by the law that is not underinclusive. 

Consider an example Duncan uses of a law permitting the recreational use of marijuana at rock concerts. 

Smoking marijuana is prohibited on all other occasions - including its use during religious ceremonies. 

Duncan argues that the secular exception for rock concerts makes the law underinclusive and this underinclusivity 

*201 requires rigorous review of the application of the law to religious ceremonies. [FN269] 

But does the exception for rock concerts really make the generic marijuana prohibition underinclusive? To 

answer that question we have to evaluate the state's asserted purpose for prohibiting marijuana use. Assume that 

the state claims that one of its legitimate goals in prohibiting the use of marijuana is to further the public safety 

goal of limiting the risk of injuries to innocent third parties who are not smoking marijuana themselves but who 

might be harmed, directly or indirectly, by people who do. That goal is furthered by generally prohibiting the 

use of marijuana. The state claims it is also furthered by an exemption for smoking marijuana during rock concerts 

because the state believes significant civil unrest may occur if police attempt to enforce marijuana laws at 

rock concerts where thousands of hyperactive teenagers are in attendance. Since the state believes civil unrest is 

far less likely when laws are enforced against religious practitioners, its law and exception are not underinclusive 

with regard to this public safety objective. 

I am not suggesting that this is a terribly persuasive explanation for the above law and exemption. The point 

is that it does not have to be very persuasive unless we are going to subject the state's asserted purpose to some 

serious level of review. Thus, we need to apply some rigorous standard of review to the state's asserted purposes, 

first. Then, if can reject enough of them so that the only ones left are underinclusive, we would apply 

strict scrutiny to the law. That is a double standard of review. 

Of course, after we reject the state's asserted purposes under our first standard of review and conclude that 



18 J.L. & Pol. 119 

the law is underinclusive, there may not be all that much work left for the second step of strict scrutiny review. 

But that conclusion simply demonstrates that the modified most favored nation framework really isn't 

modified at all. It requires the application of rigorous review to all laws with secular exemptions because that is 

the only way we can determine whether or not the law is underinclusive with regard to its stated purposes in 

some meaningful way. Alternatively, it would allow all laws with secular exemptions to escape heightened 

scrutiny because we would accept any and all conceivably rational purposes the state asserts to justify a challenged 

law *202 and, almost certainly, the law will not be underinclusive for at least one of those purposes. 

A third problem relates to the proposed limit for exemptions that are too extraordinary or inconsequential to 

be counted as making a law underinclusive for constitutional purposes. This is an extremely vague and indeterminate 

standard. Duncan suggests that the necessity privilege that may be asserted in defense of trespass actions 

falls into this category. [FN270] But private necessity is really nothing more than a private health and 

safety exception. Trespass will be permitted if it is necessary to protect the trespasser's health or safety. [FN271] 

It is not clear why this is any different from the medical exception to the Newark Police Department's shaving 

requirement. Certainly, that health exception refers to a relatively small class of individuals and circumstances 

as well. 

Finally, the most favored nation approach is not even true to the principle on which it is based. Far from 

preventing laws from unequally burdening the exercise of fundamental rights, this framework virtually guarantees 

such results. Suppose in the Newark case, there are two separate grooming standards, one relating to shaving, 

the other to hair length. Muslims protest the shaving requirement. Native Americans protest the hair length 

requirement. [FN272] Both protests are based on religious grounds. There is a medical exemption from the shaving 

requirement, but there is no exemption from the hair length requirement because there are no medical conditions 

that preclude cutting one's hair. Accordingly, the shaving requirement is reviewed and struck down under 

strict scrutiny, while the hair length requirement is upheld under rational basis review. The basis for these dramatically 

different constitutional evaluations and results is the fortuity that shaving occasionally causes medical 

problems, and haircuts do not. [FN273] 

*203 A similar argument could be made with regard to prohibitions on the use of wine, marijuana, and 

peyote. If there is a medical use for marijuana, but not one for wine or peyote, the standard of review applied to 

the marijuana prohibition will be much more rigorous than that applied to the wine or peyote restrictions. 

[FN274] Since these substances are used by different religions, some faiths will get more protection for their 

practices than others because of the fortuity that their sacred objects have valuable nonreligious uses which result 

in the granting of a secular exemption, while the sacred or ceremonial objects of other faiths have only religious 

utility, so that no secular exemptions are granted for their use. 

C. The Review of Religious Exemptions 

The final vehicle for avoiding the rigor and injustice intrinsic to the regime of formal neutrality endorsed by 

Smith is political accommodation. The political branches of government, not the judiciary, can create exemptions 

from neutral laws of general applicability for religious practices and institutions. Leaving aside the obvious 

practical question of whether the government will actually deign to adopt such exemptions, there is the more 

analytically complex question of how courts are to review the purpose, effect, and scope of such accommodations. 

In particular, how can we avoid empowering government to pick and choose among favored and disfavored 

faiths, exempting certain religions but not others from specific laws? 



18 J.L. & Pol. 119 

The case law in this area provides grossly inconsistent and ambiguous guidance on this question. In Gillette 

v. United States, [FN275] the Court rejected claims of religious discrimination brought by religious individuals 

who were conscientiously opposed to particular wars but could not fit within the selective service exemption 

from conscription *204 for those who objected to all wars. The Court recognized that the line drawn by the state 

resulted in de facto discrimination since it coincided with distinct religious traditions. Some pacifist sects objected 

to all wars, while other faiths distinguished between “just” and “unjust” wars. [FN276] Nonetheless, the government's 

conscientious objector criteria was upheld because “a claimant alleging [religious] ‘gerrymander’ 

must be able to show the absence of a neutral, secular basis for the lines government has drawn.” [FN277] Here, 

secular grounds for limiting the scope of the exemption to those who objected to all wars existed, including the 

difficulty of fairly implementing and policing a system that permitted exemptions based on objections to particular 

wars. 

The difficulty with this analysis is the ostensibly low standard of review it applies to religious exemptions 

that result in de facto discrimination among sects. The requirement that claimants must show the absence of a 

neutral, secular basis for the lines the government has drawn seems uncomfortably close to the conventional understanding 

of rational basis review, which places the burden on claimants “to negative every conceivable basis 

which might support” a challenged law. [FN278] If the burden of justification on the government is this low and 

the showing required of claimants is so difficult to achieve, government has virtually total discretion to pick and 

choose among the faiths it will exempt from general regulations. 

Other cases suggest that underinclusive exemptions among religious faiths may receive more careful review, 

but often either the nature of that review or the conditions that invoke it are unclear. In Estate of Thornton v. 

Caldor, [FN279] the Court struck down a Connecticut law requiring employers to recognize the right of any employee 

not to work on a day he designated as his Sabbath. The law in Caldor is not technically an exemption 

since it protects religious individuals against private interference with their faith rather than relieving them of 

government imposed burdens. Still, the reason the law was found to violate the Establishment Clause would 

seem applicable to narrow religious exemptions as well. As Justice O'Connor explained in her concurring opinion, 

the problem with this statute was that it “singles out Sabbath *205 observers for special and, as the Court 

concludes, absolute protection without according similar accommodation to ethical and religious beliefs and 

practices of other private employees.” [FN280] 

It remains unclear, however, why this discrimination should be viewed as qualitatively different from the 

discrimination upheld in Gillette. Not all faiths observe a Sabbath, but not all faiths object to all wars. In both 

cases, benefits are predictably provided to certain religious groups and not to others. Further, while the ability 

to choose one's day off is certainly a valuable right that many employees, religious or not, would desire and 

prize, it is hardly clear that it is of greater utility and desirability than the right not to be drafted. Certainly, 

those who cannot take advantage of the exemption from conscription may incur far greater personal loss and injury 

than employees denied the opportunity to have weekend days off from work. 

Perhaps the most emphatic case challenging the legislature's discretion to pick and choose the religious 

groups it will include within a regulatory exemption is Larson v. Valente, [FN281] a case that is often cited for 

its ringing declaration that “the clearest command of the Establishment Clause is that one religious denomination 

cannot be officially preferred over another.” [FN282] Larson obviously is an exemption case. It reviews a 

Minnesota law that exempts religious organizations from certain registration requirements imposed on groups 

engaged in charitable solicitations, but only if the religious entity received at least half of its contributions from 

members or affiliated organizations. Further, the law is struck down on the grounds that it “grants denomination- 



18 J.L. & Pol. 119 

al preferences” to certain faiths but not to others. [FN283] What is missing is any intelligible explanation of why 

the discrimination in this case violates the Constitution, but the discrimination evaluated in other cases like Gillette 

does not. 

The Court concedes that a facially neutral law is not unconstitutional simply because the secular criteria it 

employs disparately impact some religions more than others. Yet, the Court insists that the Minnesota registration 

exemption is not such a law because it “makes explicit and deliberate distinctions between different religious 

organizations.” [FN284] In *206 the very next sentence, however, the Court suggests that the registration 

law “effectively” [FN285] distinguishes between well established churches that can rely on member contributions 

for support and new churches that either need public support or seek such support as a matter of religious 

policy. 

The Court never explains how a law that “effectively” distinguishes between faiths is different from a law 

that disparately impacts different faiths. Nor does the Court effectively respond to Justice White's characterization 

of its contention, that the law discriminates on its face, as patently wrong. In White's words, 

The rule itself . . . names no churches or denominations that are entitled to or denied the exemption. 

It neither qualifies nor disqualifies a church based on the kind or variety of its religious belief. 

Some religions will qualify and some will not, but this depends on the source of their contributions, 

not on their brand of religion. [FN286] 

The Court's attempt to distinguish Gillette is also unpersuasive. The majority explains that the distinction 

drawn by the conscientious objector laws between objections to all wars and those only to unjust wars “does not 

discriminate on the basis of religious affiliation.” [FN287] That is true if it refers to the fact that no religious denomination 

is singled out by name in the federal exemption. But that is also true for the Minnesota exemption. 

The conscientious objector exemption's coverage does correlate with and distinguish between faiths in terms of 

their religious tenets. Why is the Minnesota law that distinguishes between faiths that are doctrinally committed 

to seeking public support and those that are not any different? 

The majority also suggests that the Minnesota law is problematic because it “focuses precisely and solely 

upon religious organizations.” [FN288] That is also true, but it is not clear why it is relevant, much less controlling. 

Is the distinction between individuals and organizations paramount? If that is the determining factor, 

does that mean a law distinguishing between pacifist religious organizations that objected to *207 all wars and 

religious organizations that only condemned unjust wars would be reviewed under strict scrutiny following Larson 

rather than the much less demanding scrutiny provided in Gillette? Or is the fact that the exemption in the 

Minnesota law is reserved exclusively for religious organizations the critical variable? It is true that after Welch 

and Seeger, [FN289] conscientious objector exemptions extend beyond religious beliefs and are available to secular 

pacifists as well. As I will suggest shortly, there is a doctrinal foundation for this kind of argument, but 

nothing in Larson supports it. 

The final explanation for the Court's decision in Larson is grounded on the legislative history underlying the 

Act. The law was apparently tailored to avoid its application to the Roman Catholic Church. Further, the statements 

of several legislators suggested a deliberate intent to target the Unification Church and treat it differently 

from other religious groups. [FN290] Leaving aside the conventional concerns that are typically raised against 

relying on direct proof of invidious intent to determine the constitutionality of laws, [FN291] there is the added 

question of what constitutes an invidious motive in this circumstance. Is the intent to relieve a particular religious 

group of a regulatory burden also problematic? What if the scope of the exemption is tailored using neut- 



18 J.L. & Pol. 119 

ral language to exclude particular religions from its protection because the practices of those faiths directly implicate 

the problem the state is attempting to resolve? Larson provides no answers to the numerous questions it 

raises. 

The most recent and contentious Supreme Court decision striking down a religious accommodation is Board 

of Education of Kiryas Joel Village School District v. Grumet. [FN292] Here, the Court struck down New York 

legislation which constituted as a separate school district the village of Kiryas Joel, a community populated by 

Satmar Hasidim, members of a small, very traditional, Jewish sect, whose beliefs conflict with many of the 

mores of contemporary American culture. The goal of this unusual legislative decision was to enable Satmar 

children with special educational needs to receive remedial services to which they were entitled under federal 

law without having to attend school outside of their home community. While New York's action is similar to the 

law *208 struck down in Thornton v. Caldor, in that it does not technically relieve religious individuals or institutions 

from a regulatory burden, the Court's grounds for rejecting this accommodation seem directly applicable 

to legislative exemptions, as well. New York's creation of a separate school district for this Hasidic community 

violated the Establishment Clause because it “single[d] out a particular religious sect for special treatment.” 

[FN293] 

Justice O'Connor's explanation for the Court's decision is probably the clearest statement of the issue, although 

it is expressed in a concurring opinion: 

On its face, this statute benefits one group--the residents of Kiryas Joel. Because this benefit was 

given to this group based on its religion, it seems proper to treat it as a legislatively drawn religious classification. 

I realize that this is a close question, because the Satmars may be the only group who currently 

need this particular accommodation. The legislature may well be acting without any favoritism, so that if 

another group came to ask for a similar district, the group might get it on the same terms as the Satmars. 

But the nature of the legislative process makes it impossible to be sure of this. A legislature, unlike 

the judiciary or many administrative decisionmakers, has no obligation to respond to any group's requests. 

A group petitioning for a law may never get a definite response, or may get a “no” based not on 

the merits but on the press of other business or the lack of an influential sponsor. Such a legislative refusal 

to act would not normally be reviewable by a court. Under these circumstances, it seems dangerous to 

validate what appears to me a clear religious preference. [FN294] 

Once again, it is hard to know the parameters of the rule or standard suggested by this analysis. The Satmar 

Hasidim are the only beneficiaries of the legislature's decision in this case. But this is hardly uncommon when 

legislatures create religious exemptions from *209 regulatory statutes. Often a particular faith or groups of faiths 

is burdened by the law, citizens of that faith are the political force the legislature responds to when it creates an 

exemption, and even a neutrally drawn exemption will primarily benefit a limited class of religions or sometimes 

only one. Sometimes other faiths will seek similar exemptions at a later time. If those exemptions are rejected, 

should the legislature's refusal to extend the exemption receive strict scrutiny? [FN295] Alternatively, are 

exemptions that fail to include all religious faiths potentially burdened by a law always and immediately subject 

to rigorous review? If not, how are these situations different from the accommodation struck down in Kiryas 

Joel? 

Not surprisingly, lower court judges and decisions are in complete disarray when issues relating to the scope 

and nature of exemptions and accommodations arise. In Grumet v. Pataki, [FN296] by a 4- 3 vote over a strong 

dissent, the New York Court of Appeals rejected the State's third attempt to allow Kiryas Joel to create its own 

school district, despite a concerted effort by the legislature to craft a more neutral and general framework for ac- 



18 J.L. & Pol. 119 

commodation. The Court of Appeals ruled that the framework for creating new school districts was still too narrow 

in scope and unconstitutionally favored a particular faith. Conversely, in Stark v. Independent School District, 

[FN297] by a 2-1 vote over a strong dissent, the Eighth Circuit upheld a School District's arrangement with 

a small, religious group, the Brethren. The arrangement enabled religious parents to send their children to a public 

school containing one multi-age classroom (opened in a building owned by the religious group) that conformed, 

where practical, to the group's religious tenets opposing the use of educational technology such as computers. 

This unique arrangement with a particular religious faith was not found to constitute an unconstitutional 

preference. In Children's Healthcare is a Legal Duty, *210 Inc. v. Min De Parle, [FN298] a different divided 

Eighth Circuit panel, over a strong dissent, upheld provisions in the federal Medicare and Medicaid Acts that 

provided non-medical benefits to patients treated in “religious nonmedical health care facilities” against an Establishment 

Clause challenge. Claimants argued unsuccessfully that, notwithstanding the neutral language in the 

statute, the intent and effect of the legislation was to provide support almost exclusively to Christian Scientist 

sanitoria. Citing Gillette, the court held that the fact that the provisions predictably and almost exclusively benefited 

the facilities of a single faith did not render them unconstitutional as long as the criteria employed by the 

statute “reflect [ed] valid secular justifications.” [FN299] 

While many of these decisions involve divided courts, consensus among the members of a reviewing court 

does not necessarily suggest that the resolution of the issue is persuasive. In Catholic Charities, [FN300] a case 

now before the California Supreme Court, a unanimous Court of Appeals had little difficulty upholding one of 

the most narrow and arguably irrational religious exemptions ever enacted. The state legislature enacted a law 

requiring employers that provided their employees health insurance coverage with prescription drug benefits to 

include prescription contraceptives in the insurance plan. Not surprisingly, Catholic organizations protested that 

this mandate violated Catholic religious tenets and asked for a religious exemption from the law's requirements. 

In response, the legislature adopted a conscience clause that applied only to religious employers satisfying the 

following criteria: (A) The inculcation of religious values is the purpose of the entity; (B) The entity primarily 

employs persons who share the religious tenets of the entity; (C) The entity serves primarily persons who share 

the religious tenets of the entity; (D) The entity is a nonprofit organization pursuant to Section 6033(a)(2)(A)(i) 

or (iii) of the Internal Revenue Code. [FN301] 

On its face and in context, this conscience clause makes no sense. Since Catholic charitable organizations 

do not proselytize and do not discriminate on the basis of religion in hiring or in the provision of *211 services, 

the terms of the exemption do not apply to the very religious group that requested it. Nor is it easy to understand 

why religious organizations that neither discriminate nor proselytize should be exposed to regulatory burdens 

that other religious organizations that do discriminate and proselytize need not obey. [FN302] Religious discrimination 

and proselytizing of clients may be permitted in the name of religious liberty, but surely discrimination 

and proselytizing are not preferred approaches for providing charity. Finally, the scope of the conscience clause 

is so narrow that a missionary organization that hires only adherents of the faith it espouses and has as its 

primary purpose the proselytizing of non-believers would not be exempt under the clause, because the entity 

would not primarily serve persons who share its religious tenets. 

Yet, the Court of Appeals had no difficulty in upholding the conscience clause against constitutional challenge. 

Even if the narrowly drawn conscience clause had the disparate impact of excluding Catholic organizations, 

the court explained, the clause was constitutional if it was neutral and generally applicable and reflected 

rational secular purposes. [FN303] But the court's justification for its conclusions about neutrality and secular 

purposes were extraordinarily conclusory and inadequate. The alleged secular purpose of the statute and its exemption 

was to prevent discrimination against women in employer health insurance plans and to avoid discrim- 



18 J.L. & Pol. 119 

ination among religions. [FN304] But neither of these purposes explains why religious employers who proselytize 

and discriminate should be treated differently from those who do not. The court also suggests that the activities 

not covered by the exemption are really secular pursuits. [FN305] But discrimination in hiring and services 

and proselytizing are not the hallmarks of all religions. These conditions certainly do not represent any rational 

demarcation between the religious and the secular, much less a *212 coherent basis for determining whether the 

religious integrity of institutions warrants protection. 

The only possibly plausible justification for the narrowness of the conscience clause the court suggested is 

that by limiting the scope of the exemption to employers that discriminate in hiring, the state reduced the likelihood 

that employees who disagree with the religious beliefs of their employer will lose the benefit of the law. 

[FN306] But even if this contention justified one of the factors required by the conscience clause, it does nothing 

to explain or defend the remaining criteria. 

The difficulty courts experience with this issue may reflect intrinsic problems with legislative exemptions 

under the Smith regime. Put simply, courts are placed in an untenable position. Smith eliminates free exercise 

protection against neutral laws of general applicability, but demands strict scrutiny for laws that are neither neutral 

nor general. But religious exemptions by definition are neither neutral nor general. The exemptions facially 

apply only to religious organizations, individuals, and practices. They are directed at religion alone. 

Further, to the extent that an exemption applies only to certain beliefs or practices, it is difficult to characterize 

it as general in any meaningful sense. An exemption predicated on religious opposition to all wars is not any 

more general than an exemption predicated on religious opposition to eating pork. If that is a general exemption, 

the term has no meaning in this context. 

Certainly, in the Catholic Charities case, it is absurd to describe a law that classifies on the basis of a religious 

organization's commitment to proselytizing or its willingness to work with non-believers as neutral or general. 

These are essentially religious convictions. [FN307] Grounding law on such criteria is inherently discriminatory. 

As a matter of constitutional policy, it is simply unacceptable to give government the unfettered discretion to 

pick and choose which faiths it will relieve from regulatory burdens inconsistent with their religious obligations 

and which faiths it will insist must be subject to such mandates. The inequality and unfairness of such an approach 

is obvious. Unpopular faiths can be singled out for burdens by exempting *213 more politically powerful 

religions from legal mandates. Yet it is equally implausible to insist that all religious exemptions must be 

strictly scrutinized. By their nature, these exemptions will correlate with certain religious tenets more than with 

others and, correspondingly, will benefit some faiths more than others. The legislature's focus is almost certainly 

going to be on particular faiths that bring the conflict between a general law and a particular religion's beliefs 

and practices to its attention. [FN308] Requiring uniformity, consistency, and equal treatment for all religious 

exemptions may well impose a burden on such provisions that can seldom be satisfied. Certainly, at some point, 

legislatures confronted with increasingly onerous litigation, challenging their attempts to exempt religious practices 

and institutions from regulatory burdens, will conclude that discretion is the better part of valor and increasingly 

resist granting any exemptions in the first place. [FN309] 

Conclusion 

Free speech principles should be utilized as a substitute for Free Exercise and Establishment Clause doctrine 



18 J.L. & Pol. 119 

only in narrow and limited circumstances. Smith repudiendus est. [FN310] 

[FNa1]. Professor of Law, University of California, Davis. B.A. 1969, Antioch College: J.D. 1977, Harvard University. 

The author wishes to thank Vikram Amar and Mary Lederman for reading drafts of this article and 

providing helpful criticism. I also wish to acknowledge the considerable help I received from my research assistants, 

Shawn Jensvold and Melanie Shender. 

[FN1]. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 

[FN2]. As Jack Rakove has wisely noted in comparing Madison's and Jefferson's attitudes toward constitutional 

interpretation and change, 

In the end, it was Jefferson who better grasped the habits of democracy, Madison who better understood 

its perils. But perhaps Jefferson also saw more clearly than his friend what the experience of founding a republic 

finally meant, even to the conservative framers themselves. Having learned so much from the experience of 

a mere decade of self-government, and having celebrated their own ability to act from “reflection and choice,” 

would they not find the idea that later generations could not improve upon their discoveries incredible? How 

could those who wrote the Constitution possibly understand its meaning better than those who had the experience 

of observing and participating in its operation? 

Jack N. Rakove, Original Meanings: Politics and Ideas in the making of the Constitution 367 (1996). 

[FN3]. 494 U.S. 872 (1990). 

[FN4]. See Frederick Mark Gedicks, The Normalized Free Exercise Clause: Three Abnormalities, 75 Ind. L.J. 

77, 80 n.9 (2000) (listing articles critical of Smith) [hereinafter Gedicks, Normalized]. 

[FN5]. See, e.g., Richard F. Duncan, Free Exercise is Dead, Long Live Free Exercise: Smith, Lukumi and the 

General Applicability Requirement, 3 U. Pa. J. Const. L. 850 (2001); Gedicks, Normalized, supra note 4; Robert 

W. Tuttle, How Firm a Foundation? Protecting Religious Land Uses After Boerne, 68 Geo. Wash. L. Rev. 861 

(2000). 

[FN6]. See David A. Strauss, Persuasion, Autonomy, and Freedom of Expression, 91 Colum. L. Rev. 334 (1991) 

. 

[FN7]. See, e.g., Reuven Hammer, Entering Jewish Prayer: A Guide to Personal Devotion and the Worship Service 

3-4 (1994) (explaining that sometimes prayer “is an end in itself [reflecting peoples' desire] to feel close to 

God ... to express their feelings, their fears, their hopes ... [and] to celebrate their joys in a way that will deepen 

their intensity”). 

[FN8]. See, e.g., Hammer, supra note 7, at 15-16 (noting the importance of communal prayer in Judaism because 

it is “a way of strengthening the ties of the individual with the Jewish community” and because “sanctifying 

God's name is a public act” which requires the presence of a minimum number of people in attendance). 

[FN9]. See, e.g., National Association for the Advancement of Psychoanalysis v. California Board of Psychology, 

228 F. 3d 1043, 1054 (9 th Cir. 2000) (that psychoanalysts employ speech to treat their clients does not entitle 

them, or their profession, to special First Amendment protection). 

[FN10]. 310 U.S. 296 (1940). 



18 J.L. & Pol. 119 

[FN11]. Id. at 307. 

[FN12]. 319 U.S. 105 (1943). 

[FN13]. Id. at 108-09. See also Follett v. Town of McCormick, 321 U.S. 573 (1944) (protecting the right of Jehovah's 

Witnesses engaged in religious soliciting to be free from the burdens of a licensing tax on free exercise 

and free speech grounds). 

[FN14]. 98 U.S. 145 (1878). 

[FN15]. Id. at 166. 

[FN16]. Murdock, 319 U.S. at 109. 

[FN17]. Id. at 110. 

[FN18]. Justice Scalia would later cite these cases as support for the idea that the Free Exercise Clause only 

provided protection against neutral laws of general applicability in hybrid rights situations where more than one 

right was burdened by the state's action. See infra notes 235-45 and accompanying text. 

[FN19]. 374 U.S. 398 (1963). 

[FN20]. 406 U.S. 205 (1972). 

[FN21]. See e.g., Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987); Thomas v. Review 

Bd. of the Indiana Employment Sec. Div., 450 U.S. 707 (1981). 

[FN22]. See, e.g., Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988); Goldman v. Weinberger, 

475 U.S. 503 (1986); United States v. Lee, 455 U.S. 252 (1982). 

[FN23]. See Board of Educ. v. Grumet, 512 U.S. 687, 718 (1994) (O'Connor, J., concurring in part and concurring 

in the judgment). 

[FN24]. Alan E. Brownstein, Harmonizing the Heavenly and Earthly Spheres: The Fragmentation and Synthesis 

of Religion, Equality, and Speech in the Constitution, 51 Ohio St. L.J. 89 (1990) [hereinafter Brownstein, Harmonizing]. 

[FN25]. Id. at 131. 

[FN26]. 403 U.S. 602 (1971). 

[FN27]. Id. at 612-13. 

[FN28]. Engel v. Vitale, 370 U.S. 421 (1962). 

[FN29]. See generally Mark DeWolfe Howe, The Garden and The Wilderness: Religion and Government in 

American Constitutional History (1965). 

[FN30]. See School Dist. of Abington Township v. Schempp, 374 U.S. 203, 235 (1963) (Brennan, J., dissenting); 

Everson v. Board of Educ., 330 U.S. 1, 32-44 (1947) (Rutledge, J., dissenting); see also Leonard W. Levy, 



18 J.L. & Pol. 119 

The Establishment Clause: Religion and the First Amendment (2nd ed. 1994); Thomas J. Curry, The First 

Freedoms: Church and State in America to the Passage of the First Amendment (1986). 

[FN31]. Similarly, if government could not advance or inhibit religion, there was a sense in which the Constitution 

required a state posture of neutrality on matters of faith. Although neither phrase is mentioned in the text of 

the Constitution, the ideas of the separation of church and state and of government neutrality toward religion became 

enshrined as conceptual shorthand for describing the unique purposes and goals of the Religion Clauses. 

[FN32]. Certainly, government neutrality toward religion did not suggest constitutional neutrality toward religion. 

The emphasis on neutrality did not suggest that the Constitution should turn a blind eye toward religion- 

-taking no sides while government and the majority interfered with or promoted religion for better or worse as a 

matter of political discretion. See, e.g., Martha Minow, The Constitution and the Subgroup Question, 71 Ind. 

L.J. 1, 8 (1995) (“The state must not be neutral, in the sense of doing nothing to accommodate those with religious 

beliefs, where the state's own starting point excludes or burdens them. Otherwise, anyone with religious 

beliefs simply must dispense with them in order to operate in the secular, public sphere.”). Nor did neutrality 

suggest that religious beliefs, practices, and institutions must be treated no differently than their secular counterparts. 

The case law made it clear that the Religion Clauses required the distinctive protection of religion from 

government and distinctive restrictions on the promotion of religion by government. See Sherbert, 374 U.S. at 

409; Engel, 370 U.S. at 433. 

[FN33]. See Michael W. McConnell, The Problem of Singling Out Religion, 50 DePaul L. Rev. 1 (2000). 

[FN34]. See Alan E. Brownstein, State RFRA Statutes and Freedom of Speech, 32 U.C. Davis L. Rev. 605 

(1999) [hereinafter Brownstein, State RFRA Statutes]. 

[FN35]. See id. 

[FN36]. See, e.g., Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092 (9th Cir. 2000). 

[FN37]. 452 U.S. 640 (1981). 

[FN38]. Id. at 654-55. 

[FN39]. 454 U.S. 263 (1981). 

[FN40]. Id. at 265 n.3. 

[FN41]. Id. at 265 n.2. 

[FN42]. Id. at 277. 

[FN43]. 489 U.S. 1 (1989). 

[FN44]. Id. at 40-41 (White, J., concurring). 

[FN45]. See Brownstein, State RFRA Statutes, supra note 34, at 616 n.21 (noting that Court does not explain 

ISKCON's mysterious abandonment of its free exercise argument which was successful before the Minnesota 

Supreme Court). 



18 J.L. & Pol. 119 

[FN46]. Heffron, 452 U.S. at 652. 

[FN47]. Id. at 660 n.3 (Brennan, J., dissenting). 

[FN48]. Id. (Brennan, J., dissenting). 

[FN49]. See Thomas C. Berg, Religious Speech in the Workplace: Harassment or Protected Speech?, 22 Harv. 

J.L. & Pub. Pol'y 959, 981 n.73 (1999). 

The Heffron holding might be limited in a variety of ways. It could apply only to regulations restricting 

expressive activities in traditional or limited public fora. It might apply only to religious rituals involving 

the core free speech function of persuasive expression directed at changing the beliefs or behavior of others. 

Finally, it might suggest that modest restrictions on the location where ritualized speech may be expressed 

do not constitute a substantial burden on the exercise of religion. But the Court does not even attempt to confine 

the scope of its analysis. 

[FN50]. Widmar, 454 U.S. at 273 n.13. 

[FN51]. Id. at 286 n.4 (White, J., dissenting). 

[FN52]. Id. at 284 (White, J., dissenting). See also Robert M. O'Neil, Religious Expression: Speech or Worship- 

-Or Both?, 54 Mo. L. Rev. 501, 504-05 (1989) (criticizing “the majority's casual, barely explicit assimilation of 

religious expression (including worship) to other forms of speech” and for its “failure to recognize that religious 

expression may be profoundly different-- that it is not simply speech of which the subject happens to be religion”). 

[FN53]. Widmar, 454 U.S. at 282 (White, J., dissenting) (contending that recent Establishment Clause decisions 

prohibiting prayer in the public schools and the posting of the Ten Commandments in classrooms required government 

to make the kind of content-based decisions the Court was condemning here). 

While Establishment Clause cases do prohibit government support of religious activities involving religious 

speech, there is no need to distinguish between government support of expressive and non-expressive religious 

activities. Government may unconstitutionally favor or promote religion in a variety of ways, both expressive 

and non-expressive. The Establishment Clause may be violated both by what the government says and 

by what it does. The key issue is the extent of government involvement in the advancement of religion. If there 

is no such involvement, there is no constitutional violation. If there is sufficient involvement, the Establishment 

Clause is violated whether state promotion of religion is explicitly expressive or not. Thus, while it is correct 

for Speech Clause purposes that the government is not prohibited from making content or viewpoint discriminatory 

choices with regard to its own speech, it is prohibited for Establishment Clause purposes from “speaking” in 

ways that establish religion. Recognizing that religious expressive activities can be characterized as speech does 

not seriously undercut Establishment Clause case law, because it is so clear that speech can establish religion. 

But see O'Neil, supra note 52, at 504-05 (arguing that religious expression can be seen as both free exercise of 

religion and free speech raising constitutional law dilemmas). 

[FN54]. Widmar, 454 U.S. at 270 n.6. 

[FN55]. Id. at 285 (White, J., dissenting) (“Although I agree that the line may be difficult to draw in many cases, 

surely the majority cannot seriously suggest that no line may ever be drawn.”). 



18 J.L. & Pol. 119 

[FN56]. Id. at 282 (White, J., dissenting). 


[FN58]. Id. at 276. 

[FN59]. Indeed, in Widmar, the Court rejected Justice White's argument that the Religion Clause rather than the 

Free Speech Clause should govern that case because of the difficulty in distinguishing expressive activities such 

as the teaching and reading of biblical principles, which were rightly regarded as conventional forms of speech 

for Speech Clause purposes, from the activities that traditionally occurred in a worship service. Widmar, 454 

U.S. at 270 n.6. 

[FN60]. Justice White has this distinction. Texas Monthly, 489 U.S. at 25-26 (White, J., concurring in the judgment). 

[FN61]. Id. at 17 n.7. 

[FN62]. Id. at 27 (Blackmun, J., concurring in the judgment). 

[FN63]. Id. at 27-28 (Blackmun, J., concurring in the judgment). 

[FN64]. Id. at 33, 44 (Scalia, J., dissenting). 

[FN65]. See infra notes 81-91 and accompanying text. 

[FN66]. Texas Monthly, 498 U.S. at 42 (Scalia, J., dissenting). 

[FN67]. The dissent's alternative justification for upholding the statute is that an exemption from a neutral sales 

and use tax for religious publications comes very close to being constitutionally mandated, if, in fact, it is not 

actually required by the Free Exercise Clause. An exemption that is all but constitutionally mandated must, at a 

minimum, be constitutionally permissible, Scalia argues. Id. (Scalia, J., dissenting). The very next year, 

however, Scalia would write the Court's opinion in Smith, eliminating free exercise protection for any and all religious 

activities against neutral laws of general applicability, and Rehnquist and Kennedy (along with Justices 

White and Stevens) would join his majority opinion. 494 U.S. 872 (1990). In a constitutional world in which 

free exercise exemptions from neutral laws simply do not exist, of course, there are no close questions and almost 

mandated accommodations of religion protecting religious activities from a generally applicable sales and 

use tax. Thus, the very next year after his dissent in Texas Monthly, Scalia wrote an opinion which destroyed the 

doctrinal foundation on which his argument was based. Id. 

[FN68]. 494 U.S. 872 (1990). 

[FN69]. Id. at 882. 

[FN70]. Id. at 890. 

[FN71]. Id. at 884. 

[FN72]. Id. 



18 J.L. & Pol. 119 

[FN73]. Id. at 881. 

[FN74]. 508 U.S. 520 (1993). 

[FN75]. Id. at 534. 

[FN76]. Id. at 535. 

[FN77]. See Duncan, supra note 5, at 863-67. 

[FN78]. Gedicks, Normalized, supra note 4, at 114. 

[FN79]. 508 U.S. 384 (1993). 

[FN80]. Id. at 394. 

[FN81]. Id. (“The principle that has emerged from our cases ‘is that the First Amendment forbids the government 

to regulate speech in ways that favor some viewpoints or ideas at the expense of others.’ ... That principle 

applies in the circumstances of this case ....”). 

[FN82]. See, e.g., DeBoer v. Village of Oak Park, 267 F.3d 558, 571 (7th Cir. 2001) (suggesting that a policy 

denying access to any group planning to use a public facility to “promote or espouse [its] philosophy, ideas or 

beliefs” was viewpoint-discriminatory because it had “the effect of disfavoring all individual viewpoints”); see 

Alan E. Brownstein, Alternative Maps for Navigating the First Amendment Maze, 16 Const. Comment. 101, 105 

(1999) [hereinafter Brownstein, Alternative Maps]. 

[FN83]. 515 U.S. 819 (1995). 

[FN84]. Id. at 843. 

[FN85]. Id. at 825. 

[FN86]. To its credit, the Court did try to explain why the University's regulation should be characterized as 

viewpoint-discriminatory rather than content-discriminatory. Id. at 830. Perhaps the most persuasive demonstration 

of support for the Court's conclusion rests on a simple experiment. Assume that the University refused to 

fund “secular activities,” including periodicals written from a secular perspective, but did fund religious activities. 

My intuition, at least, is that such a distinction would be viewpoint-discriminatory. If it is, reversing the 

standard must also be viewpoint-discriminatory. 

[FN87]. 533 U.S. 98 (2001). 

[FN88]. Id. at 120. 

[FN89]. Id. at 137-38 (Souter, J., dissenting). 

[FN90]. Id. at 112 n.4. 

[FN91]. Id. 

[FN92]. Id. at 138-39 (Souter, J., dissenting). The problem here is very different from the one the Seventh Cir- 



18 J.L. & Pol. 119 

cuit confronted in DeBoer v. Village of Oak Park, 267 F.3d 558 (7th Cir. 2001). There, the court struck down as 

viewpoint-discriminatory the Village's decision to deny access to a group hosting a National Day of Prayer service 

for community, state, and national leaders from a public facility open for civic programs relating to government. 

In reaching this conclusion, however, the court recognized that groups seeking to use the facility for regular 

religious services could be denied access because those religious activities bore “no relationship to a specific 

civic purpose” involving the government. Id. at 570 n.11. No similar distinction is available to limit the scope of 

the Good News Club holding. Morality and character development are sufficiently broad categories that they 

will include virtually all civic groups and religious services. If religious organizations engaging in worship services 

cannot be distinguished from secular civic groups and their activities because both sets of activities involve 

the promotion of morality in some sense of the term, there is no constitutional basis for treating church 

services more or less favorably than a broad range of secular pursuits with some connection to this common denominator. 

[FN93]. Good News Club, 533 U.S. at 139. Justice Souter does not believe that the majority's holding actually 

extends this far. Thus, he argues that “if the majority's statement ignores reality [by ignoring the true nature of 

the activities of the Good News Club], as it surely does, then today's holding must be understood only in equally 

generic terms.” Id. Thus, the Court's decision may not require treating discrimination for or against regular 

church services (or a house of worship) as viewpoint discrimination. For the purposes of this article, the issue is 

not whether the holding of the Good News Club requires this conclusion or not. It is whether future cases following 

this line of authority will reach this result. Clearly, the Court can still shift direction and, following 

Souter's advice, read Good News Club more narrowly than the language of the majority opinion suggests. 

It is also important to recognize that one may be critical of the Court's reliance on the Free Speech 

Clause in Good News Club without sharing all of Justice Souter's concerns. Souter clearly believes allowing 

churches and synagogues to hold regular services in public buildings open to other private uses is a serious problem. 

Id. I see little danger in small congregations, not yet capable of acquiring land and constructing a house of 

worship in a community, using open and unused government facilities on a temporary basis for religious services. 

In my judgment, the difficulty with the Court's decision in Good News Club is its analysis, not its result. 

[FN94]. The only case that would raise an issue in this regard is Rosenberger, since the University restricted the 

use of student fees in a variety of circumstances, not simply for religious purposes. Just as the Court concluded 

that the University's policies involved multiple discrimination for free speech purposes, a comparable argument 

might apply for free exercise purposes. Whether such a free exercise argument survives Smith is unclear. 

[FN95]. See Alan E. Brownstein, Constitutional Questions About Charitable Choice, in Welfare Reform and 

Faith-Based Organizations 219, 247-48 (Derek H. Davis & Barry Hankins eds., 1999) [hereinafter Brownstein, 

Constitutional Questions]; Alan E. Brownstein, Interpreting the Religion Clauses in Terms of Liberty, Equality, 

and Free Speech Values - A Critical Analysis of ‘Neutrality Theory” and Charitable Choice, 13 Notre Dame J.L. 

Ethics & Pub. Pol'y 243, 270 (1999) [hereinafter Brownstein, Religion Clauses]; Alan E. Brownstein, On School 

Vouchers and the Establishment Clause: Evaluating School Voucher Programs Through a Liberty, Equality, and 

Free Speech Matrix, 31 Conn. L. Rev. 871, 928 (1999) [hereinafter Brownstein, School Vouchers]. 

[FN96]. See Brownstein, Religion Clauses, supra note 95, at 279; Brownstein, School Vouchers, supra note 95, 

at 899-900. 

[FN97]. Rosenberger, 515 U.S. at 841; see also Brownstein, Constitutional Questions, supra note 95, at 230. 



18 J.L. & Pol. 119 

[FN98]. Rosenberger, 515 U.S. at 849 (O'Connor, J., concurring). 

[FN99]. See, e.g., Mitchell v. Helms, 530 U.S. 793, 806 (2000); Petitioner's Brief at 35, Mitchell v. Helms, 530 

U.S. 793, No. 98-1648 (2000), at http://www.appellate.net/briefs/mitchell.pdf; Brownstein, Religion Clauses, 

supra note 95, at 270; Eugene Volokh, Equal Treatment is Not Establishment, 13 Notre Dame J.L. Ethics & Pub. 

Pol'y 341, 365-66 (1999); Carl H. Esbeck, A Constitutional Case for Governmental Cooperation With Faith- 

Based Social Service Providers, 46 Emory L.J. 1, 7 (1997). 

[FN100]. Alan E. Brownstein, Prayer and Religious Expression at High School Graduations: Constitutional 

Etiquette in a Pluralistic Society, 5 NEXUS 61, 73-75 (2000) [hereinafter Brownstein, Prayer and Religious Expression]. 

[FN101]. Justice O'Connor's concurring opinion in Capital Square Review & Advisory Board v. Pinette, 515 

U.S. 753 (1995), demonstrates this distinction concisely. O'Connor maintains that the Establishment Clause is 

violated when private religious speech so dominates a public forum that it creates the perception of an endorsement 

of religion, even when the criteria the state employs in determining access to its property are facially neutral. 

Id. at 777 (O'Connor, J., concurring in part and concurring in the judgment). No one argues, however, that 

the state is responsible for the domination of a public forum by private speakers committed to one side or the 

other of any conventional public policy debate or that such a result violates the Free Speech Clause prohibition 

against viewpoint discrimination. The broader reach of state action in Establishment Clause cases is the only 

persuasive justification for these different results. 

[FN102]. See Brownstein, Religion Clauses, supra note 95, at 276-78; Brownstein, School Vouchers, supra note 

95, at 928-29. 

[FN103]. A full discussion of how the Free Exercise Clause should be interpreted if Smith is overruled is beyond 

the scope of this article. Certainly, the pre-Smith regime, which applied strict scrutiny only periodically, deserves 

substantial criticism. The Court's frequent explanations as to why rigorous review was inappropriate were 

rarely persuasive and the cases, taken in the aggregate, did not establish coherent doctrinal standards that could 

be justified and consistently applied in future discussions. 

To cure these problems, a post-Smith free exercise jurisprudence would have to recognize that Religion 

Clause doctrine cannot be reduced to a few simple formulas or standards of review. Complex constitutional interests 

require nuanced and multi-faceted doctrinal frameworks that can protect them while providing adequate 

respect for the community's needs and interests. The Supreme Court has never taken the Free Exercise Clause 

seriously enough even to attempt to develop such a framework for decision-making. Establishment Clause cases 

have utilized a multi-factor analysis, but they have ineffectively connected the factors the Court takes into consideration 

with the constitutional values that are relevant to such an inquiry. See Alan Brownstein, The Souter 

Dissent: Correct but Inadequate, in Church-State Relations in Crisis: Debating Neutrality 151-72 (Stephen V. 

Monsma ed., 2002). 

[FN104]. See Tuttle, supra note 5, at 871-80 (describing the difficulty religious institutions encounter in pursuing 

free exercise claims in the land use context, even in state courts that have historically been more receptive to 

such claims); Von G. Keetch & Matthew K. Richards, The Need for Legislation to Enshrine Free Exercise in the 

Land Use Context, 32 U.C. Davis L. Rev. 725 (1999); Douglas Laycock, State RFRAs and Land Use Regulation, 

32 U.C. Davis L. Rev. 755, 763-769 (1999). 

[FN105]. See, e.g., Tuttle, supra note 5, at 871-875; Laycock, supra note 104, at 765 n.35. These arguments are 



18 J.L. & Pol. 119 

of dubious merit. To the extent that the ordinance at issue lists permissible and impermissible locations for 

houses of worship on its face, one may argue that the issue of religious obligation and centrality of belief ought 

to be irrelevant. Discrimination against a religious activity should raise free exercise concerns without regard to 

the substantiality of the burden, the obligatory or supernumerary nature of the practice, or the centrality of the 

tenet. Surely even a minimal land use fee imposed solely on houses of worship raises free exercise issues. See 

Planned Parenthood v. Casey, 505 U.S. 833, 988 (1992) (Scalia, J., dissenting) (suggesting that a one cent tax on 

the sale of religious books alone would be unconstitutional). But many courts hold that land use regulations facially 

discriminating against houses of worship do not merit rigorous review. See, e.g., Civil Liberties for Urban 

Believers v. City of Chicago, No. 94-CV6151, 2001 U.S. Dist. LEXIS 17213 (N.D. Ill. Oct. 17, 2001); Korean 

Buddhist Dae Won Sa Temple of Haw. v. Sullivan, 953 P.2d 1315 (Haw. 1998); Int'l Church of the Foursquare 

Gospel v. City of Chicago Heights, 955 F. Supp. 878, 881 (N.D. Ill. 1996); Messiah Baptist Church v. County of 

Jefferson, 859 F.2d 820 (10th Cir. 1988). 

The recent enactment of the Religious Land Use and Institutionalized Persons Act in 2000 demonstrates 

Congress' perception that courts were not effectively enforcing free exercise rights in the land use context. See 

Roman P. Storzer & Anthony R. Picarrello, Jr., The Religious Land Use and Institutionalized Persons Act of 

2000: A Constitutional Response to Unconstitutional Zoning Practices, 9 Geo. Mason L. Rev. 929, 940-41 

(2001); Tuttle, supra note 5, at 863-65. 

[FN106]. See Tuttle, supra note 5, at 894 (suggesting that zoning ordinances that exclude religious uses while allowing 

similar secular uses appear to be facially content-based). 

[FN107]. Tuttle, supra note 5. 

[FN108]. See, e.g., Messiah Baptist Church, 859 F.2d 820; Lakewood, Ohio Congregation of Jehovah's Witnesses, 

Inc. v. City of Lakewood, 699 F.2d 303 (6th Cir. 1983). 

[FN109]. See, e.g., Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 468 (8th Cir. 1991). The secondary 

effects doctrine was initially utilized by the Court in City of Renton v. Playtime Theaters, 475 U.S. 41 

(1986), to uphold a dispersal zoning ordinance regulating the location of adult theaters in a community. It 

provides that a content-discriminatory regulation predicated on indirect “secondary” effects of speech, such as 

the increases in urban blight, prostitution, drug use, and crime that accompany the congregation of adult businesses 

in an area, may be evaluated under the more lenient standard of review applied to content-neutral speech 

regulations, rather than strict scrutiny review. Thus, although a dispersal zoning ordinance on its face classifies 

theaters based on the content of the movies they show, it is reviewed as a time, place, and manner regulation because 

the state's discrimination is directed not at the message communicated by the movies or its direct influence 

on an audience, but rather, at the attenuated consequences of the theater's operations. Id. at 46. See Alan E. 

Brownstein, Illicit Legislative Motive in the Municipal Land Use Regulation Process, 57 U. Cin. L. Rev. 1, 

91-92 (1988) [hereinafter Brownstein, Legislative Motive]. 

[FN110]. See Tuttle, supra note 5, at 894-96. 

[FN111]. Brownstein, Alternative Maps, supra note 82, at 108-09 n.26. 

[FN112]. Brownstein, Legislative Motive, supra note 109, at 94. 

[FN113]. Courts apply a multi-factor balancing test to review content-neutral regulations of speech. The importance 

of the state interest, the tailoring of the regulation, and the availability of alternative avenues of communic- 



18 J.L. & Pol. 119 

ation are all evaluated under this standard of review. See City of Ladue v. Gilleo, 512 U.S. 43, 53 (1994). 

[FN114]. The ensuing discussion of the protection provided speech against neutral laws of general applicability 

demonstrates the blatant inaccuracy and obvious error of Justice Scalia's contention in Smith that it would be 

“anomalous” to protect the exercise of religion against such laws, since other rights are not protected in similar 

circumstances. Smith, 494 U.S. at 886 (characterizing free exercise rights against neutral laws of general applicability 

as “a constitutional anomaly”); see also Gedicks, Normalized, supra note 4, at 82-84 (demonstrating that 

the Court's free exercise jurisprudence is itself deviant in its failure to require any significant review of neutral 

laws of general applicability that substantially burden religious practices); Alan E. Brownstein, Constitutional 

Wish Granting and the Property Rights Genie, 13 Const. Comment. 7, 14-26 (1996). 

[FN115]. See Brownstein, Alternative Maps, supra note 82, at 115 n.45 (demonstrating the seriousness with 

which lower courts review content-neutral laws). 

[FN116]. See supra notes 10-18 and accompanying text. 

[FN117]. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 758-59 (1988). 

[FN118]. See Gedicks, Normalized, supra note 4, at 85-96; Tuttle, supra note 5, at 892-913. Tuttle's article focuses 

on land use regulations. Gedicks considers the protection of religious activity under a free speech rubric 

from a broader perspective. There is one other critical distinction between the approaches endorsed by these two 

authors. Tuttle justifies the standard of review he endorses because religious activities and institutions involve 

speech. Gedicks argues that religious practices should receive the same protection as speech whether the religious 

practices have a speech dimension or not. As Gedicks puts it, in his view “religious exercise should not be 

protected as speech, but rather like speech.” Frederick Mark Gedicks, Toward a Defensible Free Exercise Doctrine, 

68 Geo. Wash. L. Rev. 925, 930 (2000) [hereinafter Gedicks, Defensible Free Exercise]. 

[FN119]. See, e.g., Tuttle, supra note 5, at 871-74 (describing cases in which courts found that zoning ordinances 

did not burden religious beliefs). 

[FN120]. See Plain Dealer, 486 U.S. at 759. 

[FN121]. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 578 n.4 (1991) (Scalia, J., concurring). 

[FN122]. See Messiah Baptist Church, 859 F.2d at 829 (McKay, J., dissenting) (arguing that “[t]he outright prohibition 

or the discretionary power (unaccompanied by adequate standards) to deny parade or protest permits on 

public property surely is not more odious to the first amendment [sic] than the outright prohibition or legally discretionary 

power to deny the right to use buildings for worship, religious communication, and religious assembly 

on one's own property”); Gedicks, Defensible Free Exercise, supra note 118, at 936 (noting that many 

land use regulations restricting religious exercise are directly analogous to time, place, and manner regulations 

of speech in that they “directly control where, when, and under what circumstances religious activity may take 

place, in the same way that parade permits, sound ordinances, and other such restrictions directly regulate 

where, when, and under what circumstances otherwise protected expression may occur”). 

[FN123]. It is hard to imagine a more conventionally accepted place and means for conducting religious assemblies 

than a house of worship. Even if the zoning of houses of worship does not constitute content or viewpoint 

discrimination, at a minimum it should receive intermediate-level scrutiny. Churches are among the primary 



18 J.L. & Pol. 119 

places where religious expression occurs, and limits on the size, structural features, and accessory uses of a 

house of worship influence the manner of the expressive activities that may occur there. Thus, the zoning of 

churches should be reviewed as a regulation of the place and manner of religious assembly. Applying the secondary 

effects doctrine to land use regulations governing religious institutions yields a roughly similar standard 

of review. Moreover, the procedural requirements applied to the permitting or licensing of speech should apply 

here as well. Administrative discretion to determine the content of conditional use permits granted to houses of 

worship should be constitutionally cabined by acceptable guidelines, just as systems for granting permits for 

other expressive activities must include clear and reviewable criteria. See Tuttle, supra note 5, at 903-13. 

Unfortunately, courts do not always comply with these standards or apply this form of review. 

Religious land uses often receive less protection than the Free Speech Clause would seem to require. Id. 

at 894-903. Perhaps this occurs because courts conceptualize religion as something that is distinct from speech 

for constitutional purposes. See, e.g., Civil Liberties for Urban Believers, 2001 U.S. Dist. LEXIS at *36-37 

(contending that “the operation of a house of worship does not equate with ‘religious speech,’ any more than the 

operation of a shoe store equates with commercial speech”). Presumably, a continued emphasis on the protection 

of religion as speech, and not as the exercise of religion, would eventually change that perception. 

[FN124]. See Brownstein, Alternative Maps, supra note 82, at 110 n.30 (discussing lower courts' striking down 

content neutral speech regulations in a wide variety of circumstances). Indeed, in cases involving religious 

speech that include both free speech and free exercise claims, there is a striking difference between the length 

and rigor of the courts' analysis under the Free Speech Clause and the typically truncated and dismissive evaluation 

of plaintiffs' free exercise claims. See, e.g., Daniels v. City of Arlington, 246 F.3d 500 (5th Cir. 2001) 

(applying more substantial free speech review to police department ban on uniformed officers' wearing any pin 

or badge on their uniform, including a cross); Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Village of Stratton, 

240 F.3d 553 (6th Cir. 2001), cert. granted, 122 S. Ct. 392 (2001) (providing much more extensive free 

speech review of content-neutral regulation restricting door to door soliciting and canvassing); Quental v. Connecticut 

Comm'n on the Deaf & Hearing Impaired, 122 F. Supp. 2d 133 (D. Conn. 2001) (reviewing disciplinary 

action taken against public employees engaged in religious proselytizing to clients far more rigorously under 

free speech standard). 

[FN125]. 408 U.S. 104 (1972). 

[FN126]. Id. at 108. 

[FN127]. Thus, the Court explained, 

[w]e recognize that the ordinance prohibits some picketing that is neither violent nor physically obstructive. 

Noisy demonstrations that disrupt or are incompatible with normal school activities are obviously 

within the ordinance's reach. Such expressive conduct may be constitutionally protected at other places or other 

times, ... but next to a school, while classes are in session, it may be prohibited. 

Id. at 120. 

[FN128]. The Court claimed to be responding to an overbreadth challenge in Grayned. Its analysis, however, 

was virtually indistinguishable from the conventional review of content-neutral speech regulations. 

[FN129]. 402 U.S. 611 (1971). 

[FN130]. Id. at 611. 

[FN131]. Id. at 612. 



18 J.L. & Pol. 119 

[FN132]. Lukumi, 508 U.S. at 535. 

[FN133]. Some overbroad laws may be challenged on free exercise grounds on the theory that they involve individualized 

assessments, an exception to the Smith holding. See infra notes 249-51 and accompanying text. 

While concerns about the exercise of official discretion represent part of the underlying foundation of overbreadth 

doctrine, not all laws that might be struck down as overbroad necessarily involve unrestricted discretion. 

Moreover, the extent to which the individualized assessments language in Smith applies to official discretion in 

interpreting laws as opposed to official authority to grant exemptions to laws is unclear. Finally, free speech 

doctrine allows individuals to assert vicarious standing in challenging overbroad laws. The exception in Smith 

does not provide a comparable extension of prudential standing rules. 

[FN134]. 379 U.S. 536 (1965). 

[FN135]. Id. at 544. 

[FN136]. Id. at 545. 

[FN137]. Id. at 546. 

[FN138]. Again, there may be some circumstances in which the individual assessment exception to Smith might 

permit a free exercise challenge to the application of such open-ended laws. See supra note 133. 

[FN139]. 530 U.S. 640 (2000). 

[FN140]. Id. at 661-62. 

[FN141]. Id. at 644. 

[FN142]. The Court did criticize the expansive interpretation of the statute given to it by the state courts, which 

increased the potentiality of conflict between the law and the associational rights of a private organization. Id. at 

657. But that gratuitous comment does nothing to detract from the law's general focus on non-expressive activities 

and groups. See also Donaldson v. Farrakhan, 762 N.E.2d 835, 841 (Mass. 2002) (holding that forcing a 

mosque and its leaders to admit women would “impermissibly burden” their “freedom of association under the 

First Amendment”). 

[FN143]. See, e.g., Salvation Army v. Dep't of Cmty. Affairs, 919 F.2d 183, 200 (3rd Cir. 1990) (providing 

stronger protection to religious organization under freedom of association than free exercise doctrine against 

neutral laws of general applicability because “[u]nlike the derivative right of religious association, the right to 

associate for free speech purposes does not require that the challenged state action be directly addressed to the 

constitutionally protected activity”). 

[FN144]. The selection of clergy is an isolated exception to the general rule. Under this “ministerial exception,” 

courts recognize that both the Free Exercise Clause and the Establishment Clause protect religious institutions 

from state interference with the employment relationship between religious organizations and clergy. See, e.g., 

Gellington v. Christian Methodist Episcopal Church, Inc. 203 F.3d 1299 (11th Cir. 2000); EEOC. v. Catholic 

Univ. of Am., 83 F.3d 455 (D.C. Cir. 1996). The scope of this exception is limited, however. It does not extend 

to employment relationships with lay employees, for example, EEOC v. Fremont Christian Sch., 781 F.2d 1362, 

1369-70 (9th Cir. 1986), or to disputes that do not implicate core Religion Clause concerns, Bollard v. California 



18 J.L. & Pol. 119 

Province of Soc'y of Jesus, 196 F.3d 940, 946-50 (9th Cir. 1999). 

[FN145]. See, e.g., Goldman v. Weinberger, 475 U.S. 503 (1986). 

[FN146]. United States v. O'Brien, 391 U.S. 367, 377 (1968). 

[FN147]. United States v. Eichman, 496 U.S. 310 (1990). 

[FN148]. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781 (1989); Clark v. Cmty. for Creative Non- 

Violence, 468 U.S. 288 (1984). 

[FN149]. See Gedicks, Normalized, supra note 4, at 90-94; Tuttle, supra note 5, at 896-97. 

[FN150]. See, e.g., Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 286-87 (5th Cir. 2001) (upholding 

school uniform policy under cursory and conclusory review); see Brownstein, Alternative Maps, supra note 82, 

at 108-12; Ira C. Lupu, The Failure of RFRA, 20 U. Ark. Little Rock L.J. 575, 592-93 (1998); Eugene Volokh, 

A Common-Law Model for Religious Exemptions, 46 UCLA L. Rev. 1465, 1512 n.148 (1999) [hereinafter 

Volokh, A Common-Law Model]. 

[FN151]. 310 U.S. 586 (1940), overruled by West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). 

[FN152]. 319 U.S. 624 (1943). 

[FN153]. See Pacific Gas & Electric Co. v. Pub. Util. Comm'n, 475 U.S. 1 (1986). 

[FN154]. Id. at 18. 

[FN155]. Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). 

[FN156]. United States v. United Foods, Inc., 533 U.S. 405, 410 (2001). 

[FN157]. 530 U.S. 640 (2000). 

[FN158]. Id at 653. Justice Stevens in dissent forcefully challenged this conclusion, noting that while 

“participating in the Scouts could itself conceivably send a message on some level, it is not the kind of act that 

we have recognized as speech.” Id. at 695 (Stevens, J., dissenting). 

[FN159]. Pacific Gas, 475 U.S. at 16. 

[FN160]. 109 Cal. Rptr. 2d 176 (Cal. Ct. App. 2001), review granted, 31 P.3d 1271 (Cal. 2001). 

[FN161]. Petitioner's Brief on the Merits at 3, Catholic Charities of Sacramento, Inc. v. Superior Court, 109 Cal. 

Rptr. 2d 176 (Cal. 2001) (No. S-099822), at http://www.sweeny-grant.com/briefs/opening.pdf. 

[FN162]. Catholic Charities, 109 Cal. Rptr. 2d at 185-86 (rejecting Free Exercise claim on grounds that challenged 

law is neutral and generally applicable and does not target religion). 

[FN163]. Boy Scouts of America, 530 U.S. at 653. 

[FN164]. Andrew Koppelman persuasively describes the expansive understanding of compelled affirmation of 



18 J.L. & Pol. 119 

belief doctrine that seems to underlie the Court's decision in Dale. He also subjects that analysis to withering criticism. 

Andrew Koppelman, Signs of the Times: Dale v. Boy Scouts of America and the Changing Meaning of 

Nondiscrimination, 23 Cardozo L. Rev. 1819 (2002). He also acknowledges that far less protection would be 

provided to religious organizations under post-Smith free exercise doctrine. Id. at 1833 (explaining that under 

the majority opinion in Dale “[p]rejudice is thereby given a legal privilege that is denied to religious scruples”). 

[FN165]. See Smith, 494 U.S. at 889. 

[FN166]. See Lisa Schwartz Bressman, Accomodation and Equal Liberty, 42 Wm. & Mary L. Rev. 1007 (2001) 

(discussing numerous religion exemptions that might justifiably be extended to secular practice and institutions). 

[FN167]. See, e.g., Brownstein, Religion Clauses, supra note 95, at 268-78; Bressman, supra note 166, 1020 

(suggesting that many religious exemptions are unconstitutional under the equal treatment principle enforced under 

free speech doctrine). There is substantial agreement that religious exemptions cannot be provided to conventional 

speech regulations without violating the Free Speech Clause. See, e.g., Berg, supra note 49, at 980-81; 

William P. Marshall, The Religious Freedom Restoration Act: Establishment, Equal Protection, and Free Speech 

Concerns, 56 Mont. L. Rev. 227, 244-47 (1995); McConnell, supra note 33, at 40. Disagreement arises, 

however, as to the range of laws under which religious exemptions are invalid because of Speech Clause constraints. 

Some commentators warn, as Berg does, see supra note 49, at 981 n.73, that this principle must be 

strictly limited to avoid undermining the possibility of religious accommodations. Others wonder, as Volokh 

does, Eugene Volokh, Intermediate Questions of Religious Exemptions--A Research Agenda with Test Suites, 

21 Cardozo L. Rev. 595, 614-16 (1999) [hereinafter Volokh, Intermediate Questions], whether any limit on this 

principle is possible, or argue that free speech constraints limit most exemptions except for those noncommunicative 

practices “at the periphery of religious exercise.” William P. Marshall, In Defense of Smith and 

Free Exercise Revisionism, 58 U. Chi. L. Rev. 308, 312-13 (1991). 

The thesis of this article is that the conflict between free speech doctrine and religious exemptions and 

accommodations can and should be resolved, but the Court's recent religion as speech cases make it increasingly 

more difficult to do so. 

[FN168]. Brownstein, State RFRA Statutes, supra note 34. 

[FN169]. See discussion of Widmar, 454 U.S. 263, supra notes 50-59 and accompanying text. 

[FN170]. Good News Club, 533 U.S. at 102-03 (citation omitted). 

[FN171]. See supra notes 87-93 and accompanying text. 

[FN172]. Good News Club, 533 U.S. at 139 (Souter, J., dissenting); see supra notes 87-93 and accompanying 

text. 

[FN173]. See Berg, supra note 49, at 981 n.73 (acknowledging that the Free Speech Clause principle of 

“content-neutrality, if pushed too far, would create a ‘negative hybrid’ in which expressive elements of religious 

conduct barred the application of increased protection for such conduct”). 

[FN174]. R.A.V. v. St. Paul, 505 U.S. 377 (1992) (holding that viewpoint discrimination is even forbidden when 

regulating unprotected speech). 

[FN175]. 42 U.S.C.A. § 2000cc (West Supp. 2001). Another obvious example of a potentially viewpoint- 



18 J.L. & Pol. 119 

discriminatory law favoring religion is the so-called Leonard Law, Cal. Educ. Code § 94367 (West Supp. 1996). 

This law attempts by statute to provide students at private colleges the same protection for their expressive 

activities from administrators that students at public universities receive under the First Amendment. Significantly, 

however, the law “does not apply to any private post-secondary educational institution that is controlled 

by a religious organization, to the extent that the application of this [law] would not be consistent with the religious 

tenets of the organization.” Id. at § 94367 (c). The Leonard Law was used to strike down Stanford University's 

hate speech code. Corry v. Stanford, No. 740309 (Cal. Super. Ct. Santa Clara County Feb. 27, 1995) 

(unreported decision), available at http://lawschool.stanford.edu/library/special/corrym.shtml). It would not be 

applied to protect students from a similar code adopted by Pepperdine University. The exemption for religious 

schools seems inherently viewpoint-discriminatory. 

[FN176]. Storzer, supra note 105. I do not mean to suggest that the Court's holding in Good News Club requires 

the conclusion that RLUIPA is unconstitutional. There is a sufficient disconnect between the majority's analysis 

and the nature of the Good News Club's activities to create real uncertainty as to the scope of the case's holding. 

See supra note 93. The important question is whether the Court will continue in the direction it is moving, making 

decisions that would place RLUIPA in constitutional jeopardy, or whether it will begin to limit the subsuming 

of religious practice and institutions under free speech doctrine 

[FN177]. See, e.g., Volokh, supra note 167, at 614 (noting that “[r]equests for exemptions of religious meetings 

from zoning requirements are generally aimed at facilitating religious speech - prayer, sermons, and the like” 

and questioning whether it is constitutional under free speech doctrine to exempt such religious expressive activities 

from zoning laws). 

In 1999, a year before RLUIPA was enacted, various religious and civil liberties groups in California 

attempted to convince the state legislature to adopt a state law providing something like the protection afforded 

to religious land uses by RLUIPA. I testified before the Senate Judiciary Committee in support of that 

law. Religious Freedom Protection Act: Hearing on S.B. No. 38 Before the Senate Judiciary Committee, 1999 

Leg. (Cal. 1999) (testimony of Alan E. Brownstein, Professor of Law, U.C. Davis). During the hearing, State 

Senator John Burton asked me whether a Catholic Church and a Masonic Temple that both wanted to locate in a 

similar area in a town would receive different treatment under the law and how I could justify providing more 

favorable regulatory treatment to the religious institution. My answer, I'm sure, explained that religion was special. 

The understanding at the time was that the Religion Clauses of the First Amendment exist because religion 

is understood to require distinct constitutional protection and regulatory treatment. It is unclear how one would 

answer that question today or in the future if it is conceded that regulations disadvantaging religious institutions 

are viewpoint-discriminatory violations of the Free Speech Clause. 

[FN178]. Michael Stokes Paulsen, God is Great, Garvey is Good: Making Sense of Religious Freedom, 72 Notre 

Dame L. Rev. 1597, 1603 (1997). 

[FN179]. Douglas Laycock, Religious Liberty as Liberty, 7 J. Contemp. Legal Issues 313 (1996). 

[FN180]. Arkanas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 679-80 (1998). 

[FN181]. Id. at 677-78. 

[FN182]. Rosenberger, 515 U.S. at 843-46. 

[FN183]. But see Air Line Pilots Ass'n, Int'l v. Dep't of Aviation, 45 F.3d 1144 (7th Cir. 1995) (suggesting that 



18 J.L. & Pol. 119 

limits on political speech may be justified by the intrusive and disruptive nature of the speech). 

[FN184]. 473 U.S. 788 (1985). 

[FN185]. Id. at 797. 

[FN186]. Good News Club, 533 U.S. at 118-19. 

[FN187]. See Frederick Schauer, Too Hard: Unconstitutional Conditions and the Chimera of Constitutional Consistency, 

72 Den. U. L. Rev. 989 (1995); Larry Alexander, Impossible, 72 Den. U. L. Rev. 1007 (1995); Roberto 

L. Corrada, Justifying a Search for a Unifying Theory of Unconstitutional Conditions, 72 Den. U. L. Rev. 1011, 

1013 (1995). 

[FN188]. 374 U.S. 398 (1963). 

[FN189]. Id. at 404. 

[FN190]. 461 U.S. 574 (1983). 

[FN191]. Id. at 598-99. 

[FN192]. Id. at 603-04. 

[FN193]. Id. at 604. 

[FN194]. 476 U.S. 693 (1986). 

[FN195]. Julie A. Nice, Making Conditions Constitutional by Attaching Them to Welfare: The Dangers of Selective 

Contextual Ignorance of the Unconstitutional Conditions Doctrine, 72 Den. U. L. Rev. 971, 977-80 

(1995). 

[FN196]. See infra notes 253-53 and accompanying text (describing individualized exemptions exception in 

Smith). 

[FN197]. Brownstein, Harmonizing, supra note 24, at 132 

[FN198]. 500 U.S. 173 (1991). 

[FN199]. Id. at 179. 

[FN200]. Id. at 180 (citation omitted). 

[FN201]. Id. at 198. 

[FN202]. Id. at 197-99. 

[FN203]. Mitchell, 530 U.S. at 840-41 (O'Connor, J., concurring). 

[FN204]. Id. at 885-87 (Souter, J., dissenting). 



18 J.L. & Pol. 119 

[FN205]. Smith, 494 U.S. at 890 (explaining that “[i]t may fairly be said that leaving accommodation to the 

political process will place at a relative disadvantage those religious practices that are not widely engaged in 

....”). 

[FN206]. Justice Blackmun, for example, challenged the majority's conclusion that “the repression of minority 

religions is an ‘unavoidable consequence of democratic government.”’ Id. at 909 (Blackmun, J., dissenting) 

(citation omitted). 

[FN207]. United States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1938). 

[FN208]. See generally John Hart Ely, Democracy and Distrust (1990). 

[FN209]. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); City of Richmond v. J. A. Croson Co., 488 

U.S. 469 (1989). 

[FN210]. Adarand Constructors, 515 U.S. at 242 (Stevens, J., dissenting); Id. at 264 (Souter, J., dissenting); Id. 

at 271 (Ginsburg, J., dissenting); J. A. Croson Co., 488 U.S. at 528 (Marshall, J., dissenting); Id. at 528 

(Blackmun, J., dissenting). 

[FN211]. See Regents of Univ. of California v. Bakke, 438 U.S. 265, 324-79 (1978) (Brennan, J., concurring in 

the judgment in part and dissenting in part); Id. at 387-402 (Marshall, J., concurring in the judgment in part and 

dissenting in part); Id. at 402-21 (Blackmun, J., concurring in the judgment in part and dissenting in part). 

[FN212]. J. A. Croson Co., 488 U.S. at 536-37 (Blackmun, J., dissenting). 

[FN213]. Adarand Constructors, 515 U.S. at 241 (Thomas, J., concurring). 

[FN214]. Brownstein, Religion Clauses, supra note 95, at 250-51; Brownstein, School Vouchers, supra note 93, 

at 893-94. 

[FN215]. See, e.g., Gillette v. United States, 401 U.S. 437 (1971); Braunfeld v. Brown, 366 U.S. 599 (1961); 

McGowan v. Maryland, 366 U.S. 420 (1961). 

[FN216]. 401 U.S. 437 (1971). 

[FN217]. Board of Educ. v. Grumet, 512 U.S. 687, 732 (1994) (Scalia, J., dissenting). 

[FN218]. Id. at 705. 

[FN219]. See Ira C. Lupu, Uncovering the Village of Kiryas Joel, 96 Colum. L. Rev. 104, 113-14 (1996). 

[FN220]. Compare Brownstein, Harmonizing, supra note 24, at 142-45, Abner S. Greene, Kiryas Joel and Two 

Mistakes About Equality, 96 Colum. L. Rev. 1, 63-82 (1996), Mark C. Rahdert, A Jurisprudence of Hope: 

Justice Blackmun and the Freedom of Religion, 22 Hamline L. Rev. 1, 97-98 (1998), David E. Steinberg, Religious 

Exemptions as Affirmative Action, 40 Emory L.J. 77 (1991), and Tseming Yang, Race, Religion, and Cultural 

Identity: Reconciling the Jurisprudence of Race and Religion, 73 Ind. L.J. 119, 180-84 (1997), with 

Gedicks, Normalized, supra note 4, at 99-105, and Lupu, supra note 219, at 113-120. 

[FN221]. Brownstein, Alternative Maps, supra note 82, at 111-12; Alan E. Brownstein, Rules of Engagement for 



18 J.L. & Pol. 119 

Cultural Wars: Regulating Conduct, Unprotected Speech, and Protected Expression in Anti-Abortion Protests, 

29 U.C. Davis L. Rev. 553, 621 (1996) [hereinafter Brownstein, Rules of Engagement]; Cass R. Sunstein, 

Speech in the Welfare State: Free Speech Now, 59 U. Chi. L. Rev. 255, 299-301 (1992) (advocating extra assistance 

for minority viewpoints, while noting that current free speech doctrine does not permit such assistance); 

Michael Rosenfeld, Metro Broadcasting, Inc. v. FCC: Affirmative Action at the Crossroads of Constitutional 

Liberty and Equality, 38 UCLA L. Rev. 583, 627 (1991) (suggesting giving minority viewpoints priority to increase 

viewpoint diversity); Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405, 1415-16 

(1986) (acknowledging that free speech doctrine does not permit elevation of one viewpoint over another, but 

advocating for such government action). 

[FN222]. Buckley v. Valeo, 424 U.S. 1, 48-49 (1976). 

[FN223]. Brownstein, Religion Clauses, supra note 95, at 256. 

[FN224]. In Brownstein, School Vouchers, supra note 95, at 886-87, I explain that, 

[r]eligion for constitutional purposes involves personal and institutional liberty and autonomy (in my 

view the right of the individual and congregations, rather than the state, to make self-defining decisions). It involves 

equality among groups; a form of equality that is analogous to, but in some ways distinct from, the equality 

mandated by the Equal Protection Clause that protects certain classes against discrimination. It also involves 

speech and belief. Government should avoid distorting the marketplace of ideas through state action that empowers 

or silences religious expression. 

[FN225]. I agree with Michael McConnell that “it is virtually impossible to understand our tradition of the separation 

of church and state without recognizing that religion raises political and constitutional issues not raised 

by other institutions or ideologies.” McConnell, supra note 33, at 3. Indeed, I think religion is even more distinctive 

and deserving of being singled out than he does, certainly for Establishment Clause purposes, and, correspondingly, 

I am more committed to the separation of church and state. 

[FN226]. See, e.g., Rabbi Joseph Telushkin, Jewish Wisdom: Ethical, Spiritual, and Historical Lessons from the 

Great Works and Thinkers 3, 6 (1994) (explaining that “ethics is at Judaism's core . ... ethical behavior constitutes 

Judaism's essence”). 

[FN227]. See, e.g., Frederick Mark Gedicks, Toward a Constitutional Jurisprudence of Religious Group Rights, 

1989 Wis. L. Rev. 99 (1989). 

[FN228]. McConnell, supra note 33, at 28-31. 

[FN229]. See, e.g., Telushkin, supra note 226, at 4 (noting that “Judaism imposes upon the Jewish people the 

obligation to help bring about tikkun olam, the repair (or perfection) of the world”). 

[FN230]. For example, as Reuven Hammer explains, Jewish prayer 

is an integral part of the complete religious life of a Jew--an essential part, but nevertheless only a 

part. It cannot be isolated from the rest except artificially, for it interweaves with everything else to create the 

harmonious whole that is Judaism. The other major components of a full Jewish life are study, ritual practice, 

and moral living. Although prayer is our way of communicating with God, we must remember that it is not the 

only way. All of these paths lead to God, and all of them are interconnected. 

Hammer, supra note 7, at 3. 



18 J.L. & Pol. 119 

[FN231]. See infra notes 252-56 and accompanying text. 

[FN232]. See Yoder, 406 U.S. at 216. 

[FN233]. See, e.g., Brownstein, Religion Clauses, supra note 95, at 268-78 (explaining that vigorous enforcement 

of both Free Exercise and Establishment Clause principles create offsetting impacts on the communication 

of religious messages and may minimize the distortion of the marketplace of ideas); Brownstein, School Vouchers, 

supra note 95, at 927-29 (describing how weakening of Establishment Clause constraints on public funding 

of religious schools through voucher programs may result in the privileging of certain religious messages over 

others). 

[FN234]. See, e.g., James W. Fraser, Between Church and State: Religion & Public Education in Multicultural 

America 4 (1999) (noting that “[a]t the dawn of the new millenium the peoples of the United States are more 

secular, especially in their public culture, more religious, in many different private forms, and more diverse than 

ever before in the nation's history”); Nancy L. Rosenblum, Pluralism, Integralism, and Political Theories of Religious 

Accommodation, Introduction to Obligations of Citizenship and Demands of Faith: Religious Accommodation 

in Pluralist Democracies 11-12 (Nancy L. Rosenblum ed., 2000) (explaining that “[I]n the United 

States,...the proliferation of faiths-- through schism, invention of new religions...and importation of nonwestern 

religions--is ceaseless. Today there are literally hundreds of religious sects”). 

[FN235]. Brownstein, Religion Clauses, supra note 95, at 281. 

[FN236]. See Gedicks, Normalized, supra note 4. 

[FN237]. 406 U.S. 205 (1972). 

[FN238]. See Douglas Laycock, Free Exercise and the Religious Freedom Restoration Act, 62 Fordham L. Rev. 

883, 902 (1994). 

[FN239]. Smith, 494 U.S. at 881; Yoder, 406 U.S. at 233-34. 

[FN240]. Justice Souter's withering criticism of the idea in his dissent in Lukumi, 508 U.S. 520 (1993), states 

the problem succinctly: 

[i]f a hybrid claim is simply one in which another constitutional right is implicated, then the hybrid exception 

would probably be so vast as to swallow the Smith rule .... But if a hybrid claim is one in which a litigant 

would actually obtain an exemption from a formally neutral, generally applicable law under another constitutional 

provision, then there would have been no reason for the Court in what Smith calls the hybrid cases to have 

mentioned the Free Exercise Clause at all. 

Id. at 567 (Souter, J., dissenting). 

[FN241]. As at least one circuit judge has noted, “[n]o court would eagerly enter the jurisprudential thicket surrounding 

the intersection of First Amendment free exercise concerns [predicated on the hybrid rights exception 

to Smith] and civil rights created by fair housing laws” because “Smith itself is fraught with complexity both in 

doctrine and in practice.” Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1147 (9th Cir. 2000) (en 

banc) (O'Scannlain, J., concurring). 

[FN242]. See, e.g., Knight v. Conn. Dep't of Pub. Health, 275 F.3d 156, 167 (2d Cir. 2001) (dismissing hybrid 

rights language in Smith as dicta in concluding that “[t]he allegation that a state action that regulates public con- 



18 J.L. & Pol. 119 

duct infringes more than one of a public employee's constitutional rights does not warrant more heightened scrutiny 

than each claim would warrant when viewed separately”); Kissinger v. Bd. of Trustees of Ohio State Univ., 

5 F.3d 177, 180 (6th Cir. 1993) (refusing to apply heightened scrutiny to a hybrid rights situation); Salvation 

Army, 919 F.2d at 199-200 (holding that hybrid rights of free exercise and freedom of association do not 

provide additional protection against neutral law of general applicability than freedom of association right receives 

standing alone). 

[FN243]. See, e.g., Brown v. Hot, Sexy & Safer Productions, 68 F.3d 525, 539 (1st Cir. 1995) (dismissing hybrid 

rights claim because plaintiffs did not state a viable privacy or substantive due process claim); EEOC v. 

Catholic Univ. of Am., 83 F.3d 455, 467 (D.C. Cir. 1996) (finding that violation of Establishment Clause in conjunction 

with burden on free exercise rights constitutes hybrid rights situation). 

[FN244]. See, e.g., Thomas, 165 F.3d 362, reh'g granted, 220 F.3d 1134 (9th Cir. 2000) (en banc) (vacating decision 

finding violation of hybrid rights on ripeness grounds), cert. denied, 531 U.S. 1143 (2001). 

[FN245]. See, e.g., Swanson v. Guthrie Indep. Sch. Dist. Number I-L, 135 F.3d 694, 699-700 (10th Cir. 1998). It 

is not clear what courts mean when they refer to a “colorable” claim, however. In Swanson, for example, the 

court determined that the plaintiffs' right to direct the education of their children had not been infringed by the 

school district's decision allowing only full-time students to attend classes. Then, after concluding that 

“[p]laintiffs have shown no colorable claim of infringement on the constitutional right to direct a child's education,” 

the court explained, “[w]hatever the Smith hybrid-rights theory may ultimately mean, we believe that it at 

least requires a colorable showing of infringement of recognized and specific constitutional rights, rather than 

the mere invocation of a general right such as the right to control the education of one's child.” Id. at 700. Nothing 

in the court's analysis clarifies how one distinguishes a “colorable” showing of infringement of a specific 

right from one that is not “colorable.” 

Judge O'Scannlain's opinion in Thomas, 165 F.3d at 704-07, provides the most extensive discussion of 

the meaning of a “colorable” claim in the case law. Ultimately, however, he concludes that to be colorable “a 

hybrid-rights plaintiff must show a ‘fair probability'--a ‘likelihood'--of success on the merits of his companion 

claim.’' Id. at 706. O'Scannlain insists, however, that this does not mean that the companion claim has to be independently 

viable. Id. at 704. Unless he is suggesting that the court should never rule on the validity of the 

companion claim, it is hard to understand how these two conclusions can be reconciled. At some point, presumably, 

the court will evaluate the merits of the companion claim. If it is ultimately determined to be invalid, there 

is no longer any likelihood that it will succeed on the merits and the claim is no longer colorable for hybrid 

rights purposes. 

[FN246]. Thomas, 165 F.3d at 705-06. 

[FN247]. Frisby v. Schultz, 487 U.S. 474, 481 (1988). 

[FN248]. 505 U.S. 833 (1992). 

[FN249]. See City of Ohio v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 426 (1983) (holding unconstitutional 

an informed consent requirement); Thornburgh v. American Coll. of Obstetricians & Gynecologists, 476 

U.S. 747, 759-64 (1986) (invalidating informed consent under strict scrutiny). But see Casey, 505 U.S. at 870 

(upholding informed consent and 24-hour waiting period and thus overruling those parts of Akron and Thornburgh 

invalidating such statutes). 

Even Justice Scalia, the author of Smith, who cited laws burdening free exercise and free speech rights 



18 J.L. & Pol. 119 

as an example of a hybrid rights situation in that opinion, apparently no longer believes that hybrid free exercise/ 

free speech cases should receive heightened review. In Watchtower Bible and Tract Soc'y of New York v. Village 

of Stratton, 536 U.S. 150 (2002), the Court struck down a village licensing ordinance that required individuals 

engaged in door to door canvassing to first register with and obtain a permit from municipal authorities. 

Plaintiffs in the case were Jehovah's Witnesses who challenged the law on both free exercise and free speech 

grounds. Justice Scalia concurred in the Court's judgment, but he made it explicitly clear that he believed the religious 

nature of plaintiffs' expressive activities were irrelevant to the Court's analysis and decision. Justice 

Scalia wrote, “If a licensing requirement is otherwise lawful, it is in my view not invalidated by the fact that 

some people will choose, for religious reasons, to forego speech rather than observe it. That would convert an 

invalid free-exercise claim, see Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 

(1990), into a valid free-speech claim - and a more destructive one at that. Whereas the free exercise claim, if 

acknowledged, would merely exempt the Jehovah's Witnesses from the licencing requirement, the free-speech 

claim exempts everybody, thanks to the Jehovah's Witnesses.” Id. at 223. 

[FN250]. See generally Brownstein, State RFRA Statutes, supra note 34; see also discussion of Widmar, supra 

notes 50-59 and accompanying text. 

[FN251]. 374 U.S. 398 (1963). 

[FN252]. See, e.g., supra note 22. 

[FN253]. Smith, 494 U.S. at 884 (citing Bowen v. Roy, 476 U.S. 693, 708 (1986)). 

[FN254]. Cases and commentary supporting this position do not effectively explain whether they are interpreting 

the scope of the individualized assessment exception to the Smith holding or, instead, are interpreting the 

holding itself by defining what are generally applicable laws. Berg, for example, cites the individualized exception 

language in Smith to support his position. Thomas C. Berg, Slouching Toward Secularism: A Comment on 

Kiryas Joel School District v. Grumet, 44 Emory L.J. 433, 467 n.155 (1995). While Gedicks appears to recognize 

that granting officials unfettered discretion when the exercise of fundamental rights may be at issue raises 

constitutional questions standing alone, Gedicks, Normalized, supra note 4, at 115 n.170, he argues that this concern 

is derivative of a more basic principle condemning any underinclusive decisions that suggest unprotected 

secular interests are more highly valued than constitutionally protected religious interests. From this perspective, 

categorical exemptions that render a law underinclusive are at least as problematic as individualized exemptions. 

Id. at 118 n.180. Duncan agrees that the state's granting of exemptions to some secular claimants while rejecting 

comparable religious accommodations, whether individualized or categorical, raises constitutional questions that 

require strict review, but he construes the rule to be “a subset of the general applicability requirement” set out in 

Smith. Duncan, supra note 5, at 861. 

The case law is similarly indeterminate. In Fraternal Order of Police v. Newark, 170 F.3d 359, 365-66 

(3d Cir. 1999), for example, the court extends the principle expressed in Smith requiring heightened review in a 

system involving individualized exemptions to cover laws containing categorical exemptions. But it does not focus 

on the issue of general applicability. Instead, it suggests that the decision to deny a religious exemption from 

a regulation while recognizing at least one secular exemption “is sufficiently suggestive of discriminatory intent 

so as to trigger heightened scrutiny.” Id. at 365. In Rader v. Johnson, 924 F. Supp. 1540, 1551-52 (D. Neb. 

1996), on the other hand, the court expresses some doubt as to whether a free standing exception to Smith for individualized 

exemptions even exists. It applies heightened review to a governmental process involving individualized 

decisionmaking on the grounds that individualized exemptions are “one of several factors” to consider in 



18 J.L. & Pol. 119 

determining whether a law is generally applicable or not. Id. at 1552 n.24. 

[FN255]. See, e.g., Berg, Slouching, supra note 254, at 467; Douglas Laycock, The Remnants of Free Exercise, 

1990 Sup. Ct. Rev. 1, 48-51. 

[FN256]. See Berg, Slouching, supra note 254, at 467. 

[FN257]. See Volokh, Intermediate Questions, supra note 166, at 630-34; Volokh, A Common-Law Model, 

supra note 149, at 1539-42. 

[FN258]. Duncan, supra note 5. 

[FN259]. Id. at 863-67. 

[FN260]. Id. at 868. 

[FN261]. See, e.g., id. at 869-72 (discussing Rader v. Johnson, 924 F. Supp. 1540 (D. Neb. 1996)). 

[FN262]. 170 F.3d 359 (3d Cir. 1999), cert. denied, 528 U.S. 817 (1999). 

[FN263]. Id. at 365-66. 

[FN264]. Duncan, supra note 5, at 876-77. 

[FN265]. Id. at 877-79. 

[FN266]. Id. at 878. 

[FN267]. Id. 

[FN268]. Id. at 882 (citing Gedicks, Normalized, supra note 4, at 104-21). As Duncan recognizes, Gedicks does 

not believe this conclusion is established by Lukumi. Gedicks, Normalized, supra note 4, at 113-14. Gedicks argues 

that the Court should move in this direction. 

[FN269]. Duncan, supra note 5, at 878-79. 

[FN270]. Id. at 876. 

[FN271]. Restatement (Second) of Torts § 197 (1965). 

[FN272]. See Diaz v. Collins, 114 F.3d 69, 72 n.18 (5th Cir. 1997) (describing the religious significance of long 

hair in many Native American religions). 

[FN273]. One response to this argument is that the most favored nation analysis is not limited to particular laws. 

It applies with equal force to any state interest or purpose without regard to the number of specific regulations 

the state employs to advance that interest. Thus, if the state's goal is to promote the uniform appearance of police 

officers, that objective may be furthered by a range of regulations requiring daily shaving, haircuts, freshly 

laundered uniforms, regularly shined shoes, and prohibiting the wearing of buttons, or unauthorized headgear, 

etc. A secular exemption from any one of these regulations would require the state to grant religious exemptions 

to any or all laws serving a common purpose--unless the denial of the exemption could be justified under strict 



18 J.L. & Pol. 119 

scrutiny review. This rejoinder avoids some of the inequality inherent in a law-specific, most favored nation approach, 

but it does so at the cost of dramatically increasing the scope of the rule. As the number of laws to which 

the most favored nation approach applies increases, it becomes harder to explain why we should continue to uphold 

an ever-narrowing understanding of Smith rather than overrule the decision in its entirety. 

[FN274]. I realize that Duncan suggests that an exemption for medical marijuana does not render a law prohibiting 

the general use of marijuana underinclusive because the exception serves the same public health goal as the 

general regulation. Duncan, supra note 5, at 878. For the purposes of my hypothetical, let us assume that laws 

prohibiting the use of marijuana, wine, and peyote do not serve public health goals, but rather are grounded on 

other costs resulting from the abuse of such substances. 

[FN275]. 401 U.S. 437 (1971). 

[FN276]. Id. at 452. 

[FN277]. Id. 

[FN278]. FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993) (quoting Lehnhausen v. Lake Shore 

Auto Parts Co., 410 U.S. 356, 364 (1973)). 

[FN279]. 472 U.S. 703 (1985). 

[FN280]. Id. at 711 (O'Connor, J., concurring). 

[FN281]. 456 U.S. 228 (1982). 

[FN282]. Id. at 244. 

[FN283]. Id. at 246. 

[FN284]. Id. at 247 n.23. 

[FN285]. Id. 


[FN287]. Gillette, 401 U.S. at 450. 

[FN288]. Larson, 456 U.S. at 247 n.23. 

[FN289]. Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965). 

[FN290]. Larson, 456 U.S. at 254-55. 

[FN291]. See, e.g., Brownstein, Legislative Motive, supra note 109, at 44-52. 

[FN292]. 512 U.S. 687 (1994). 

[FN293]. Id. at 706. 



18 J.L. & Pol. 119 

[FN294]. Id. at 716-17 (O'Connor, J., concurring). 

[FN295]. Several lower courts, for example, have wrestled with the constitutionality of the federal government's 

decision to grant an exemption to Native American religions for the use of peyote while denying similar accommodations 

to religions that use marijuana in their ceremonies. Although the courts accepted the general principle 

that government could not discriminate among faiths, they upheld the refusal to provide exemptions for the religious 

use of marijuana on the grounds that it was not analogous to peyote, with regard to the government's reasons 

for restricting its use and because of the special relationship between the federal government and Native 

American tribes. See, e.g., Olsen v. Drug Enforcement Admin., 878 F.2d 1458 (D.C. Cir. 1989); McBride v. 

Shawnee County, 71 F. Supp. 2d 1098 (D. Kan. 1999). 

[FN296]. 93 N.Y.2d 677 (N.Y. 1999). 

[FN297]. 123 F.3d 1068 (8th Cir. 1997). 

[FN298]. 212 F.3d 1084 (8th Cir. 2000). 

[FN299]. Id. at 1091. See also Kong v. Min De Parle, No. C 00-4285 CRB, 2001 U.S. Dist. LEXIS 18772 at *13 

(N.D. Cal. Nov. 13, 2001) (noting that “[w]hile it is true that no facilities aside from Christian Science sanatoria 

presently qualify [for the challenged benefit], this fact alone does not make [the medicare provision] impermissibly 

discriminatory”). 

[FN300]. 109 Cal. Rptr. 2d 176 (Cal. Ct. App. 2001), reh'g granted, 31 P.3d 1271 (2001). 

[FN301]. Id. at 184. 

[FN302]. The issue here is distinguishable from the question of whether or not an organization is properly characterized 

as religious to determine its entitlement to an exception. Certainly, the very idea of a religious exemption 

presupposes some inquiry as to whether or not an institutional claimant is in fact religious in nature. 

But the legislative exemption at issue in Catholic Charities is a conscience clause, not an identity 

clause. It is questionable whether the California legislature's criteria would even be appropriate for the purpose 

of distinguishing between religious and secular entities. The criteria are entirely irrational when the purpose of 

the exemption is to protect rights of conscience. 

[FN303]. Id. at 201. 

[FN304]. Id. at 192. 

[FN305]. Id. at 190. 

[FN306]. Id. at 189. 

[FN307]. See Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 

483 U.S. 327 (1987) (upholding an exemption from Title VII permitting religious organizations to discriminate 

in hiring on the basis of religion because decisions about whom to hire and whether job functions involve religious 

obligations are so likely to reflect religious concerns). 

[FN308]. See, e.g., Kong, 2001 U.S. Dist. LEXIS 18772 (recognizing that Congress was responding to the needs 



18 J.L. & Pol. 119 

of Christian Scientists when it enacted religious accommodation in the Medicare statute). 

[FN309]. See, e.g. Teresa Stanton Collett, Heads, Secularists Win; Tails, Believers Lose--Returning Only Free 

Exercise to the Political Process, 20 U. Ark. Little Rock L.J. 689, 714 (1998) (arguing that continued ambiguity 

concerning Establishment Clause constraints on religious exemptions “invariably will bias government officials 

toward no accommodation”). 

[FN310]. Smith must be overruled. See Adrian Goldsworthy, The Punic Wars 333 (2000) (quoting Marcus Porcius 

Cato, “Delenda Est Cathargo,” “Carthage must be destroyed”). “Smith improdandus est” or “Smith rejectiendus 

est” probably conveys the same idea. This language is anachronistic and out of context, according to 

Latin experts, but it provides an aesthetic parallel to Cato's Carthage quote. A more authentic expression that a 

medieval clerk might use to convey the idea is “Smith irretetur et pro nollo habeatu,” but it lacks the symmetry 

of the shorter statements. 

18 J.L. & Pol. 119 

END OF DOCUMENT

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