The Free Exercise of Religion as a Privilege

In the span of a decade, the Supreme Court has restructured the Free Exercise Clause entirely. It has removed the counterweight of disestablishment; it has sought parity between religion and secularity by means of strict scrutiny analysis turning on a principle of nondiscrimination; and it has opened the way to a general exemption from secular law for the faithful by ceding the question of what counts as an exercise of religion to the faithful themselves. This Article proposes reading the free exercise of religion as a privilege in response to these changes. This privilege stands against secular law in the same way that the Self-Incrimination Clause privilege stands against the universal obligation to surrender one’s evidence to the state.

The Court currently adjudicates ministerial exemption cases in this way—treating exemptions as privileges—and this method ought to be used in all free exercise cases. Such a privilege does not favor religion or secularity. One side can construe it broadly and the other can construe it narrowly. The benefit to all would be more meaningful adjudication than is presently possible.

This Article makes the normative case for a narrow construction. The privilege should ensure meaningful debate in a liberal democracy and restore the Constitution’s secular default.