Contextualizing the Free Exercise of Religion

The level of protection afforded to an individual’s First Amendment right to freely exercise religion should depend upon the context within which it is exercised. Put differently, an individual’s right to religious liberty should be balanced against other individuals’ right to equal protection of the law, and the broader societal interest in protecting individuals from invidious discrimination. This Article proposes a multifactor test that fully protects the right to freely exercise one’s religion while simultaneously safeguarding equal protection and antidiscrimination guarantees. Specifically, the level of protection afforded to a free exercise claim should depend, among other things, on whether it occurs in the private or public sphere (e.g., in a house of worship or a business that provides goods or services to the general public), whether an individual asserting such a claim is acting on behalf of a governmental entity, and whether the protection of religious freedom would infringe on equal protection and anti-discrimination principles.

Such a test is consistent with the text and original purpose underlying the Free Exercise Clause and with the guarantee of equal protection and liberty for all citizens.