Abstract

Governmental neutrality is the heart of the modern Free Exercise Clause. Mindful of this core principle, which prevents the government from treating individuals differently because of their religious convictions, the Supreme Court held in Employment Division v. Smith that a neutral law can be constitutionally applied despite any incidental burdens it might impose on an individual’s exercise of religion. Conscientious objectors such as Quakers, for instance, do not have a constitutional right to be exempt from a military draft. Thus, neutrality now forms both the core and the outer limit of constitutionally guaranteed religious freedom. Judged according to founding-era views, however, this interpretation of the Free Exercise Clause is deeply problematic. Although historical scholarship has focused on the particular issue of religious exemptions, this Article takes a different approach by reexamining early debates about neutrality itself. These neglected sources demonstrate that modern cases invert the founding-era conception of religious freedom. For the Founders, religious freedom was primarily an unalienable natural right to practice religion—not a right that depended on whether a law was neutral. This evidence illuminates not only a significant transition in constitutional meaning since the Founding but also the extent to which modern priorities often color our understanding of the past.

Document Type

Article

Publication Date

2011

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