Can the Nonbeliever Freely Exercise? jlavarnway Free Inquiry

by Anonymous1

As membership on the United States Supreme Court has changed, religious liberty has been transformed. In 2021, the precedent governing the past thirty years of free exercise exemption from general applicable laws, Employment Division v. Smith,2 was not only overturned, but the Court did not adopt a new standard in its place. Instead, the Court left identifying boundaries to future cases.

Based on recent decisions within the so-called “shadow docket” such as Cuomo v. Catholic Diocese3 and Tandon v. Newsom,4 it appears a version of the Most Favored Nation theory will emerge as the new free exercise exemption standard. Although significant questions are still left to decide, an undeniable feature of this new transformation of religious exemption doctrine is that it has, so far, only concerned itself with the viewpoints of religious believers. The extent to which—or whether—nonbelievers of religion5 are to be included in this new era of free exercise exemption is a serious question. While a long line of First Amendment cases established government neutrality between religious and nonreligious belief, an increasing number of federal court decisions are declaring that religious actors possess exclusive, privileged entitlement rights under the First Amendment.

Free Exercise Exemption

“Congress shall make no law respecting an establishment of religion, or the free exercise thereof …”

The free exercise clause of the First Amendment has always been understood as guaranteeing some level of protection against the government targeting citizens based on their religious beliefs. Thus, if the government prevents a student from speaking at a public school because the student’s religious views are out of social favor, First Amendment protection will been recognized.6 However, whether the free exercise clause guarantees a citizen exemption from neutrally applied laws that incidentally burden religious practices has long been in dispute on the United States Supreme Court.7

For the first hundred and fifty years of the free exercise clause’s history, the Supreme Court decided against recognizing exemption. In Reynolds v. United States,8 the Supreme Court held that to grant an exemption from generally applicable laws was unacceptable because it would “make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”9 When the free exercise clause was incorporated to the states via the Fourteenth Amendment’s due process clause in 1940, the Supreme Court reiterated the free exercise guarantee did not release “the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”10

Then in 1963, the Supreme Court made an abrupt shift by recognizing a religious exemption in Sherbert v. Verner,11 stating that “any incidental burden on the free exercise” of religion required “a ‘compelling state interest.’”12 Further, Sherbert placed an additional requirement on government “to demonstrate that no alternative forms of regulation” exist to accomplish the state’s claimed interest.13 In 1972, the Supreme Court reaffirmed its newfound position on exemptions stating that protection “by the Free Exercise Clause of the First Amendment” exists “even under regulations of general applicability.”14

In 1990, however, the Supreme Court changed course once again and returned to the standard first established in Reynolds by declaring that “an individual’s religious beliefs” do not excuse that individual “from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”15 But nearly thirty years later, the Court changed its mind again in Fulton v. City of Philadelphia,16 declaring the exemption standard established in Smith was overturned.17 Criticism of the Supreme Court’s flip-flopping on religious exemptions has been blunt.18 But in Fulton, the Court took an even more radical and unprecedented approach to free exercise that has taken the doctrine of exemption outside all previous norms.

Prior to Fulton, whenever the Court recognized religious exemption, members of the Court stressed the case was being resolved “not in terms of what an individual can demand of government, but solely in terms of what government may not do to an individual in violation of his religious scruples.”19 In fact, it was said the free exercise clause required cases to be decided “in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.”20 In other words, for over two centuries prior to the decision in Fulton, the Court had insisted the free exercise clause guaranteed only a negative liberty to be free from government interference, not a positive entitlement for government support.21 In Fulton, however, the Supreme Court broke away from this fundamental tenet of free exercise as a negative liberty and transformed it to a positive entitlement exclusively for religious actors.

Free Exercise Entitlement

The central question before the Supreme Court in Fulton was whether the free exercise clause permitted a religious organization to discriminate against same-sex couples in carrying out a government program. At the time, the City of Philadelphia contracted with about thirty nonprofit agencies to help determine whether applicants could be certified as foster parents under state criteria that did not require applicants to be married, much less heterosexual, in order to qualify.22 Moreover, a City ordinance and a contract provision prohibited contracting agencies from discriminating on the basis of race, sex, or sexual orientation. After one of the City’s contractors—Catholic Social Services (CSS)—announced in the press it would categorically refuse to certify fully qualified applicants if they were a same-sex couple, the City informed CSS that such a refusal violated the City’s ordinance and the terms of the contract.23 Once CSS refused to comply, the City terminated its contract with CSS to certify applicants, although the City continued to pay CSS tens of millions to provide a wide range of other services within the foster care system.24 CSS responded by suing the City, claiming CSS had a constitutional right under the free exercise clause to receive the government contract even if it refused to abide by the contract’s express terms or violated City law.

What separates the facts in Fulton from other recent free exercise cases such as Masterpiece Cakeshop v. Colorado Civil Rights Commission,25 is the lack of an infringement on a negative right or private conduct. At issue in Masterpiece was a regulation of private business, but in Fulton, CSS was objecting to the terms of a government contract, funded entirely by taxpayer dollars—including by same-sex taxpayers CSS was claiming a right to discriminate against—that CSS had willfully entered into to carry out a government function. As David Cole, National Legal Director of the ACLU, put it, CSS “claims not a right to be free from government regulation of its private conduct, but an affirmative entitlement to millions of dollars in government funds to perform a government program, while violating the terms of the government contract and discriminating against individuals seeking to participate in the program.”26

The lack of regulation of private conduct also distinguishes Fulton from other cases such as Sherbert and Smith in which the religious actors were seeking relief from government regulation of their private conduct to obtain a government benefit. In Fulton, the program’s beneficiaries were foster children and eligible foster parents, not CSS. Nevertheless, a unanimous Supreme Court in Fulton held “the contractual non-discrimination requirement imposes a burden on CSS’s religious exercise. …”27 It is not possible to square the Court’s finding of a burden on religious exercise in Fulton within a framework of negative rights.28 CSS had willfully entered into the government contract to perform a public, not private, function.

What the Supreme Court did in Fulton was declare that unless the government can show sufficient cause to satisfy the Court, the Constitution not only entitles a religious actor to receive a government contract but also entitles the religious actor to execute the contract using the religious actor’s criteria, even if doing so violates valid law and the terms of the contract itself. Meanwhile, nonbelievers must be held to stricter terms and laws.

Notwithstanding the radical nature of the Fulton decision in upending a fundamental First Amendment tenet of negative free exercise rights, it could hardly have come as a surprise to anyone paying attention. In Trinity Lutheran v. Comer,29 the Supreme Court held that a church was entitled to compete for direct government funding for property enhancement, which in this case was to resurface its playground.

Although the Court in Trinity made a point to emphasize the church “is not claiming any entitlement to a subsidy” but rather for “a right to participate in a government benefit program without having to disavow its religious character.”30 After Fulton, the Supreme Court abandoned such a distinction, declaring that a religious actor was entitled to funding from a government program even if the religious actor did not conform with the program’s otherwise valid criteria that every nonreligious actor must still be bound by. But even by its own reasoning, the Court’s decision in Trinity falls well outside a negative rights framework.

In Trinity, the church’s claim was that the government’s denial to compete for a direct public subsidy for property enhancements burdened the exercise of religious beliefs. In other words, the case was about what the religious actor was entitled to “exact from the government,” i.e., a right to compete for money, to “freely” exercise religious beliefs. The Court in Trinity drew its reasoning from prior cases, primarily McDaniel v. Paty,31 which struck down a Tennessee law that banned clergy from serving at the state constitutional convention despite the fact that the cases were distinct in many obvious ways. For example, the government’s interest in preventing a clergy member from performing a secular government function is fundamentally different from refusing to directly fund church property enhancements, which the Supreme Court had traditionally prohibited under the establishment clause.32 Indeed, prohibiting an individual from performing a secular government function because of their private religious beliefs can reasonably be attributed to government animus toward religious beliefs. While prohibiting direct funding of church property enhancements can be traced back to the Framers’ original respect for the free conscience rights of all citizens by not forcibly taxing them to support churches they might otherwise dissent from.33

But even if one accepts the reasoning in Trinity, it is difficult to imagine how the Court could apply a free conscience entitlement to compete for government benefits consistently. Especially when the Court has to balance the free conscience interests of believers who run the program and those nonbelievers who are meant to receive the program’s benefits. In fact, the Court has been anything but consistent in application of an entitlement to compete for government benefits. In Sherbert, the first ever case granting a religious exemption, the Supreme Court made a point of rejecting the distinction between government prohibitions and government denials of benefits.34 Yet in another case decided during the Sherbert era, Bob Jones University v. United States,35 the Supreme Court relied on this very difference stating that a “denial of tax benefits” would not prevent a school that wanted to discriminate “from observing their religious tenets.”36

In Fulton, the Court was asked to balance the competing free conscience interests of religious and nonreligious actors within a government program. Although the Court acknowledged that “the equal treatment of prospective foster parents and foster children” who did not share CSS’s religious beliefs regarding same-sex relationships was “a weighty one.” All things being equal would require that a nonbeliever possess an equivalent free conscience right to participate in a government program without having to disavow their character to government contractors to receive the benefit. Unfortunately, with this Court matters are not equal, and the religious believer is being continuously granted exclusive entitlement rights the nonbeliever cannot receive, simply because of their lack of belief in a deity.

Nowhere has the entitlement right for religious actors become more apparent than in the federal judiciary’s approach to COVID-19 related regulations. In response to occupancy restrictions put in place by local and state governments during the COVID-19 pandemic, the Supreme Court issued several sweeping decisions in favor of religious actors via the so-called “shadow docket.”37 When such COVID-19–related cases first came before it, however, the Court repeatedly refused to second guess state medical experts by striking down occupancy restrictions.38 But once Amy Coney Barret replaced Ruth Bader Ginsburg, the law changed entirely.

Suddenly the Court began striking down occupancy restrictions using a version of the Most Favored Nation Theory.39 According to this theory, a religious actor is entitled to exemption wherever a comparable secular exemption or gap in coverage exists that would undermine the government’s interest in a comparable way.40 However, once it began striking down occupancy restrictions, the Court received a great deal of criticism for abandoning the comparability element within the Most Favored Nation Theory so as to conjure an entitlement to exemption for religious actors when there was no secular equivalent. This criticism comes even from the scholar cited by the Court in such decisions and most known for advocating for the Most Favored Nation theory.41

The most radical of these COVID-19–related occupancy cases comes not from the Supreme Court but from a Seventh Circuit Court of Appeals decision of a case at the preliminary injunction stage.42 In an opinion authored by Judge Diane Wood and joined by then Judge Amy Coney Barret, it was held constitutionally proper for the state of Illinois to expressly favor religious speech over all other forms of expressions, including an expressive political gathering.43 Indeed, the entitlement for the religious actor under the law at issue was direct. All nonreligious expressive gatherings, including political gatherings, were subject to a fifty-person occupancy limit while expressive religious gatherings, and only expressive religious gatherings, were exempt.44

Moreover, the Seventh Circuit did not mince words about the fact it was solely favoring religious actors in its decision declaring that “speech that accompanies religious exercise has a privileged position under the First Amendment.”45 Although the decision recognized that political speech “lies at the core of the First Amendment,” it nevertheless held that comparing political expression with religious expression was “more than an ‘apples to apples’ matching.”46 What the Seventh Circuit saw instead was political “‘speech’ being compared to ‘speech plus,’ where the ‘plus’ is the protection that the First Amendment guarantees to religious exercise.”47

Absent from the decision by the Seventh Circuit was recognition of the many cases in which the Supreme Court has insisted religious and nonreligious speech must be treated equally.48 But such rejection of Supreme Court precedent may not even matter as the current Supreme Court, which has seen its membership shift dramatically to the political right, has already demonstrated a willingness to grant affirmative entitlements exclusively to religious actors. Further, the Seventh Circuit’s decision was not made in a void but takes place in the context of an increasing number of federal court decisions upholding the premise that nonreligious actors can be restricted by the government, including from private commercial occupations, for nothing more than their refusal to declare belief in a god.

The Restriction of Nonbeliever Free Exercise and Its Causes

William Barr, 1991. Editorial credit: Rob Crandall /

Although more Americans than ever are leaving organized religion,49 or perhaps because of this fact, nonbelievers remain one of the most hated groups in the United States.50 The persistent animosity has resulted in a degree of social stigma and discrimination51 that can encompass nearly every aspect of a nonbeliever’s life, particularly for women.52 The animosity toward nonbelievers is so ubiquitous that those at the highest levels of government show no shame or fear about expressing it openly, including those at the highest level of our nation’s law enforcement.

For example, Attorney General William Barr gave a speech before a group of law students at the University of Notre Dame in which he claimed Judeo-Christian hegemony was essential to American government.53 According to Barr, “in the Framers’ view, free government was only suitable and sustainable for a religious people.” The immediate thing to notice about Barr’s statement is that any nonbeliever, by very definition, becomes unsuitable for our government. Indeed, Barr would go on to demonize the growth of the nonbeliever population, declaring that the “growing ascendancy of secularism” was directly responsible for “the wreckage of the family … record levels of depression and mental illness, dispirited young people, soaring suicide rates, increasing numbers of angry and alienated young males, an increase in senseless violence, and a deadly drug epidemic.”

However, the fact is that Barr is demonstrably wrong about every historical and contemporary claim he made in his speech regarding nonbelievers. First, one John Adams quote54 aside, which Barr cites as proof that American government was “only suitable and sustainable for a religious people,” the plain language of the Constitution that ensures that “no religious Test shall ever be required as a Qualification to any Office or public trust under the United States” directly refutes Barr’s claim that American free government is only “suitable and sustainable for a religious people.”55 It would seem odd, to say the least, for a group of Framers who supposedly felt that religion was essential to free government to take the time to ban religious oaths as a requirement for government office. Second, despite an accelerating decline in Christianity among the population, most objective indicators of social health are ticking upward and have been for quite some time. For example, violence did not increase as Barr claimed but has decreased during the past three decades.56 Divorce rates,57 teen pregnancy,58 sexual activity among teens in general,59 and abortions60 all significantly declined as religious membership in the population also declined.

Perhaps the most encouraging positive social trends have come from the demographic that has been traditionally marginalized and discriminated against during the period when Christianity was far more prevalent.61 From 200162 to 2017,63 a period in which religious membership substantially decreased, the incarceration rate for Black men declined by 34 percent. When one looks at age-specific rates, the incarceration rates become even more promising. In 2017, the incarceration rate of Black men aged twenty-five to twenty-nine declined by 56 percent, while the decline for ages twenty to twenty-four was 60 percent, and for Black men aged eighteen to nineteen, the incarceration rate in 2017 declined a whopping 72 percent.64 The decline in incarceration is also shared by Black women.65 Further, teenage motherhood is on an equally impressive decline among Black women during the same period between 200166 and 2017.67 The progress for Black Americans, however, is not confined to the younger generations. Between 1999 and 2015, the mortality rate for cancer, diabetes, and heart disease for Black Americans aged sixty-five and over substantially declined.68

Not only are Black Americans living longer and healthier during a twenty-first century during which religion has substantially declined, they are more educated. Between the 1999–2000 and 2016–2017 school years, the number of Black students who earned a bachelor’s degree increased by 82 percent,69 while the number of associate’s and master’s degrees more than doubled.70 In 2018, 37 percent of Black Americans aged twenty-four to thirty-four had some form of a college degree.71 As one commentator put it: “If Black America were its own country, that would place it between Germany (31 percent) and Spain (43 percent) in terms of educational attainment.”72

Of course, no society is free of significant troubles, and Black Americans still face appalling and deadly forms of institutionalized discrimination.73 But the fact remains that modern trends are demonstrably better for one of the most traditionally marginalized and discriminated groups in the United States. Combined with overall population statistics, it would be difficult if not impossible to reasonably claim today is a worse period for Americans to live in than in the past. Much less that the rise in nonbelief is somehow responsible for the supposed worse times of today. While it would be equally absurd to claim that increasing positive trends are the result of religious decline, what these statistics do make clear is that the United States can make progress toward its ideals without being a Christian or religious nation. Secular institutions, whether they be political, economic, or nonreligious cultural institutions can be the primary drivers of good trends, and thus the claim that the United States needs Judeo-Christian institutions is highly suspect.

Yet the claim that nonbelievers are unfit or even dangerous for government74 or that without religion society gets worse persists in the face of all observable and quantifiable evidence. Put simply, the decline of religion is fueling an irrational demonization and hatred of nonbelievers. However, the result is not just a baseless expression of social animosity but the manifestation of legal restrictions on nonbeliever free exercise. Indeed, the belief that religious actors must be privileged by the Constitution because they are essential to government, while nonbelievers are somehow deficient simply because of their lack of religious beliefs, is the expressed basis for multiple federal court decisions restricting nonbeliever free exercise.

In upholding the Pennsylvania House of Representatives’ prohibition against nonreligious speakers from giving secular invocations before their own legislature, the Third Circuit Court of Appeals stated that “only theistic prayer can satisfy all the traditional purposes” of a speech before a secular legislative body that, in theory, is meant to represent all state residents regardless of their religious beliefs.75 It did not matter that the nonbeliever was offering a “prayer touching on themes such as equality, unity, decency, hope, peace, compassion, tolerance, and justice.”76 Because citizens would not appeal to a “higher power,” the Third Circuit declared a legislature could ban nonbelievers from speaking.77

In Texas, a federal court upheld the state’s prohibition against nonbelievers from being licensed for a private occupation—a wedding celebrant.78 [The Center for Inquiry, publisher of this magazine, is the plaintiff in this case—The Editors.] The court’s stated reason was that only the religious actor can satisfy the state’s historical religious criteria to earn an income from this private commercial activity.79 As a result, nonbeliever couples in Texas are denied a right granted to believers to have someone of their choice, who shares their sincerely held beliefs, to officiate their wedding. Unless, of course, the nonbeliever falsely declares to government a belief in religion. These cases, combined with a Supreme Court establishing affirmative entitlement rights only for religious actors, do not reflect the actions of a neutral judiciary but one that has embraced a social animosity toward nonbelievers that strikes at the core of free exercise protection: that government cannot target and restrict citizens for not expressing or holding religious beliefs favored by those in government.

The Restriction and Disfavor of Nonbelievers Represents Government Animus toward a Particular Viewpoint: Nonbelief in Religious Dogma

Restricting speech or speakers based on subject matter or viewpoint has traditionally been disfavored by federal courts.80 In fact, whenever the government is perceived as taking sides in a social debate by restricting the expression or exercise of an opposing view, such restrictions have been treated as presumptively unconstitutional.81 But it appears a new exception to viewpoint discrimination has been created. After all, when a federal court declares that speakers can be restricted based on whether they are expressing religious beliefs or not, as a federal court did in Pritzker, it is upholding restrictions on speakers based on viewpoint. Or when the Supreme Court consistently finds that only religious actors are entitled to free exercise exemption, it is granting a right to exercise based on nothing more than the religious viewpoint of the actor, to the exclusion of those who do not share this viewpoint.

Conversely, the Supreme Court has gone to great lengths to preserve the viewpoints of religious actors. In Hobby Lobby,82 the Supreme Court held that the federal RFRA statute permitted a religious actor to be exempt from participation in a government program that subsidizes the decisions between multiple third parties and independent of the religious actor because such a program “substantially burdens” religious exercise.83 Such attenuation in a government program, however, has worked against recognizing the free conscience rights of the nonbeliever in cases involving state statutory expansions of the establishment clause.84 In such establishment clause cases, the fact that the nonbeliever is being forced to subsidize decisions by third parties the nonbeliever actor views as immoral never seems to matter. Although the Court has found no limits on statutory expansions of free exercise, any state statute that expands establishment clause liberty that has come before this Court has been struck down.85

It is difficult to reconcile how states can expand one clause of religious liberty to no limit while simultaneously severely restricting the other without coming to the conclusion that it is not the law driving these decisions. The Supreme Court’s recent cases have made clear that the difference in winning a religious liberty case depends entirely upon whether the religious or nonreligious viewpoint will benefit. Statutory expansions of free exercise, such as RFRA, which current members on the Court describe as a “super statute,” have benefitted only religious actors.86 Therefore, no limits have been placed on a state’s ability to expand RFRA protections for religious actors. However, because statutory expansions of the establishment clause benefit the nonbeliever who does not want to be taxed to pay for religious schools or monuments, every state attempt to expand the establishment clause is struck down. What is desperately needed is a return to a neutral, negative right standard that offers universal protection to both nonbelievers and religious actors.

The Value of a Negative Right to Free Exercise and the Danger of Restricting Nonbelievers

The plain language of the Bill of Rights reveals a clear attempt to limit government authority over the individual.87 In addition, the due process clause of the Fourteenth Amendment, which incorporates the Bill of Rights to the states, reads not as an affirmative command but rather as a prohibition against state power.88 Therefore, restoring the free exercise clause standard to one that guarantees a negative right against state power would place the free exercise doctrine more in accordance with the plain text of the clause.

In his famous Memorial and Remonstrance, James Madison,89 who authored the First Amendment and was the individual most responsible for its passage, made clear that each individual citizen had “equal title to the free exercise of Religion according to the dictates of Conscience” (emphasis added). When government grants an entitlement to direct subsidy of religious actors from resources forcibly extracted from the general populace, including from nonbelievers, the forced participation of the nonbeliever in the program represents state interference with the nonbeliever’s right to exercise religious beliefs according to the dictates of conscience. At minimum, the Supreme Court cannot maintain any semblance of impartiality by recognizing this type of state interference only when the forced participation is directed at a religious actor, while repeatedly permitting the forced participation of the nonbeliever.

The danger in a Supreme Court that recognizes First Amendment guarantees dependent upon whether the citizen is a religious believer cannot be overstated. The United States has found itself in an unprecedented moment, when for the first time a substantial and rapidly increasing portion of the population that claims no adherence to religion is living alongside those who view religion as an essential requirement for society and free government. In an already deeply divided society, dividing the country further by treating believers and nonbelievers differently under the law could prove fatal.

In fact, the danger posed by divisions between incompatible religious views and the bloodshed such conflicts have traditionally produced was the primary concern that led to the passage of the religious clauses in our Constitution. These conflicts in our nation’s past, and the continuing conflicts in contemporary times,90 demonstrate there are few, if any, areas other than religion in which human beings so fully manifest their differences from one another. As neuroscientist and philosopher Sam Harris put it in his 2004 book The End of Faith, “religion is the one endeavor in which us-them thinking achieves a transcendent significance. If you really believe that calling God by the right name can spell the difference between eternal happiness and eternal suffering, then it becomes quite reasonable to treat heretics and unbelievers rather badly. The stakes of our religious differences are immeasurably higher than those born of mere tribalism, racism, or politics.”91 Because of that danger, the Supreme Court must abandon its doctrine of exclusive entitlement that is encouraging lower courts to push favoritism for religious actors under the law ever further.


No citizen should have to concern themselves with the private religious views of Supreme Court Justices. Yet during confirmation hearings, nominees are now being asked to identify not only what religious faith they belong to but the degree to which they exercise that faith.92 No church should have to depend on government funding to exercise its tenets. The intended function of American religious liberty, according to Madison, was to restore religion to its “primitive State in which its Teachers depended on the voluntary rewards of their flocks.”93 Now, many churches have become so utterly dependent on government entitlements that changes in the makeup of secular legislatures and courts represent direct threats to church operations.

Regardless of whether one agrees with the Court’s approach toward believers, nonbelievers, or both, it cannot be said that what has emerged is a free exercise doctrine that is less restrictive, or places greater limits on government influence of religious exercise. There are few greater influences on religion than when government subsidizes religious exercise. That every new restriction has fallen exclusively upon one particular viewpoint—nonbelief in religious dogma—does not make the doctrine overall less restrictive even though believers are being granted greater or privileged status. Such privilege merely reflects the influence of a growing and dangerous legal movement that targets nonbelievers of religious dogma as a threat or menace that must be restricted by government.94


The author paraphrases Thomas Paine to say, “Who the author of this work is, is wholly unnecessary to the Public, as the object for attention is the work itself, not the author. Yet it may not be unnecessary to say, that the author is unconnected with any party, and under no sort of influence but the influence of reason and principle.” All the same, the editor wholly vouches for the credentials and expertise of the author.
110 S.Ct. 1595 (1990).
141 S.Ct. 63.
141 S.Ct. 1294 (2021).
Meaning atheists, agnostics, etc.
293 F. Supp. 2d 780 (E.D. Mich. 2003).
See, generally, James M. Oleske Jr., Free Speech (Dis)Honesty, Wisconsin Law Review 690.
98 U.S. 145, (1878).
Id. at 166–67
Minersville Sch. Dist. V. Gobitis, 310 U.S. 586, 594 (1940) (overruled on separate grounds by West Virginia State Bd. of Educ. V. Barnette, 319 U.S. 624 [1943].)
374 U.S. 398 (1963); see, generally, James M. Oleske Jr., Free Exercise (Dis)Honesty.
Id. at 403.
Id. at 407.
Wisconsin v. Yoder, 406 U.S. 205, 220 (1972).
Employment Division v. Smith, 494 U.S. 872, 878–79 (1990).
141 S.Ct. 1868 (2021).
Id. Barret Concurrence.
See Oleske, supra note, at 691.
Sherbert at 412, Douglas concurrence.
The Supreme Court has consistently held that First Amendment rights confer only negative rights and that “a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right.” Regan v. Taxation With Representation, 461 U.S. 540, 549 (1983); see also Cammarano v. United States, 358 U.S. 498, 515 (1959) (Douglas, J., concurring) (rejecting the “notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State”).
Fulton at 1875.
138 S.Ct. 1719 (2018).
David Cole, “A New Assault on Marriage Equality.” The New York Review, December 3, 2020. Available online at
Fulton supra note at 1881.
In describing the doctrine of negative rights, Judge Richard Posner wrote that the Constitution was “a charter of negative rather than positive liberties. … The men who wrote the Bill of Rights were not concerned that Government might do too little for the people but that it might do too much to them. The Fourteenth Amendment, adopted in 1868 at the height of laissez-faire thinking, sought to protect Americans from oppression by the state government, not to secure them basic governmental services.” Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir.), cert denied, 465 U.S. 1049 (1983.
137 S.Ct. 2012 (2017).
Id. at 2022.
98 S.Ct. 1322 (1978).
Tilton v. Richardson, 403 U.S. 672 (1971).
Virginia Statute of Religious Freedom; see also Memorial and Remonstrance against Religious Assessments.
103 S.Ct. 2017 (1983).
Id. page 604.
Stephen I. Vladeck, “Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket” (Hearing Before the Senate Committee on the Judiciary), September 29, 2021. Available online at
South Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613 (2020); Calvary Chapel Dayton Valley v. Steve Sisolak, 141 S.Ct. 1285 (2021).
Cuomo v. Catholic Diocese supra note 2.
The term most favored nation status was first used by Douglas Laycock, The Remnants of Free Exercise, 1990 SUP. CT. REV. 1, 49–50.
Tyler Broker, “This Supreme Court’s Religious Liberty Approach Would Be Silly, If The Consequences Were Not So Dire.”, February 8, 2021. Available online at
Pritzker v. Republican Party Illinois, 973 F.3d 760 (7th Cir. 2020).
Id. at 761 “See EO43, § 4(a), at Emergency and governmental functions enjoy the same exemption. Otherwise, EO43 imposes a mandatory 50-person cap on gatherings.”
Id. at 764.
Widmar, Rosenberger, Good News, Heffron; Texas Monthly, Bd. Of Educ. Of Kiryas Joel Vill. Sch. Dist. V. Grumet, 512 U.S. 687, 696 (1994)
Gregory A. Smith, “About Three-in-Ten U.S. Adults Are Now Religiously Unaffiliated.” Pew Research Center, December 14, 2021. Available online at
“What Americans Know About Religion.” Pew Research Center, July 23, 2019. Available online at (demonstrating that atheists are viewed with the “coldest” attitude).
K. Rios, L. R. Halper, and C. P. Scheitle, “Explaining Anti-Atheist Discrimination in the Workplace: The Role of Intergroup Threat.” Psychology of Religion and Spirituality, vol. 14, no. 3 (2022), 371–380. Available online at; Beth Ellwood, “People Are Less Tolerant of Atheists Expressing Their Beliefs at Work Compared to Christians, Muslims, or Jews.” PsyPost, August 2, 2021. Available online at
“Attorney General William P. Barr Delivers Remarks to the Law School and the de Nicola Center for Ethics and Culture at the University of Notre Dame.” The United States Department of Justice, October 11, 2019. Available online at
“Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.” John Adams, “From John Adams to Massachusetts Militia, 11 October 1798.” National Archives (Founders Online). Available online at
See U.S. CONST. art. VI, § 1, cl. 3.
John Gramlich, “What the Data Says (and Doesn’t Say) about Crime in the United States.” Pew Research Center, November 20, 2020. Available online at This decline reflects a long-term trend (Steven Pinker, The Better Angels of Our Nature, Penguin Books, 2011, p. 64).
Lydia Anderson and Zachary Scherer, “See How Marriage and Divorce Rates in Your State Stack Up.” United States Census Bureau, December 7, 2020. Available online at
“About Teen Pregnancy.” Centers for Disease Control and Prevention. Available online at,decrease%20of%204%25%20from%202018.
Kathleen A. Ethier, Laura Kann, and Timothy McManus, “Sexual Intercourse Among High School Students—29 States and United States Overall, 2005–2015.” Morbidity and Mortality Weekly Report, vol. 66 (2018), 1393–1397. Available online at
Rachel K. Jones, Elizabeth Witwer, and Jenna Jerman, “Abortion Incidence and Service Availability in the United States, 2017.” Guttmacher Institute, September 2019. Available online at
Coleman Hughes, “The Case for Black Optimism.” Quillette, September 28, 2019. Available online at
Paige M. Harrison and Allen J. Beck, “Prisoners in 2001.” Bureau of Justice Statistics Bulletin, July 2002. Available online at
Jennifer Bronson and E. Ann Carson, “Prisoners in 2017.” Bureau of Justice Statistics Bulletin, April 2019. Available online at
Joyce A. Martin, Brady E. Hamilton, Paul D. Sutton, et al., “Births: Final Data for 2002.” National Vital Statistics Reports, vol. 52, no. 10 (2003). Available online at
Joyce A. Martin, Brady E. Hamilton, Michelle J.K. Osterman, et al., “Births: Final Data for 2017.” National Vital Statistics Reports, vol. 67, no. 8 (2018). Available online at
Timothy J. Cunningham, Janet B. Croft, Yong Liu, et al., “Vital Signs: Racial Disparities in Age-Specific Mortality Among Blacks or African Americans—United States, 1999–2015.” Morbidity and Mortality Weekly Report, vol. 66, no. 17 (2017), 444–456. Available online at
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West Virginia Board of Education v. Barnette, 319 U.S. 624, 638 (1943)
Id. “nor shall any state”
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Ukraine, Ireland, Yugoslavia, etc.
Sam Harris, The End of Faith, W. W. Norton, 2005.
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by Anonymous1 As membership on the United States Supreme Court has changed, religious liberty has been transformed. In 2021, the precedent governing the past thirty years of free exercise exemption from general applicable laws, Employment Division v. Smith,2 was not only overturned, but the Court did not adopt a new standard in its place. Instead, …