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Mary Ann Glendon, Religious Freedom - A Second-Class Right?, 61 Emory L.J. 971 (2012).

Abstract: Although the Bill of Rights does not establish a hierarchy among the values it seeks to protect, Supreme Court decisions over time have classified certain rights as essential to a fundamental scheme of ordered liberty. The prominent place of the First Amendment’s provisions protecting religious freedom on this “Honor Roll of Superior Rights” has seldom been openly challenged. Recent legal, political, and cultural developments, however, prompt the question whether religious freedom is becoming, de facto, a lesser right—one that can be easily overridden by other rights, claims, and interests. On the legal front, as freedom of religion comes into increasing conflict with nondiscrimination norms and claims based on abortion rights and various lifestyle liberties, the rights of religious entities to choose their own personnel, and even to publicly teach and defend their positions on controversial issues, are coming under intense attack. The deferential standard of review adopted by the Supreme Court in 1990, moreover, has put a considerable damper on efforts to mount effective legal challenges to restrictions on free exercise. A political consequence of the Court’s deferential standard has been not only to discourage religious persons and groups from defending their rights but also to embolden those who aim to reduce the influence of religion—especially organized religion—in American society. Nor is the status of religious freedom as secure in American culture as it once was. Recent social science data indicates that, ironically, the social consensus behind religious freedom seems to be weakening just when pathbreaking work has begun to document the social and political benefits of religious freedom. I conclude that among these legal, political, and cultural challenges, the most ominous is cultural. For, as Learned Hand once said, if liberty dies in the hearts of men and women, “no constitution, no law, no court can save it.” That does not mean that the legal and political efforts carried on by friends of religious freedom are fruitless. Whether religious freedom retains a prominent place on the honor roll of superior rights will certainly depend to some extent on those efforts. But even more decisive will be the attitudes and behavior of religious believers and leaders themselves.