Skip to content

Mark Tushnet, The Redundant Free Exercise Clause?, 33 Loyola U. Chi. L.J. 71 (2002).

Abstract: This article examines the protection religious exercise receives independent of the Free Exercise Clause as currently construed. Much religious exercise is protected as speech or as symbolic speech. Under current free speech doctrine, religious practices that are speech or symbolic speech receive approximately the same protection as, or even somewhat more protection than, those practices receive under current Free Exercise doctrine. Government may not discriminate against religious speech, a result reached under current free exercise doctrine through a different route. Religious practices that are not speech or symbolic speech receive minimal protection under current Free Exercise doctrine, and little if any protection under the Free Speech Clause. The right of expressive association as articulated in Boy Scouts v. Dale provides additional protection for religious practices, particularly because Dale requires the courts to defer to associations' own definitions of the messages they wish to send and to their claims that including others in the association would interfere with those messages. Taken together, free speech doctrine and the right of expressive association may provide as much protection for religious practices as does the Free Exercise Clause as currently interpreted. The alternative doctrines, thus, may render the Free Exercise Clause redundant.