Document Type

Article

Publication Date

2019

Disciplines

Constitutional Law | First Amendment | Law | Legal History | Religion Law | Supreme Court of the United States

Abstract

A central issue about redundancy concerns how far the exercise of religion is simply a form of speech that is, and should be, constitutionally protected only to the extent that reaches speech generally. Insofar as a constitutional analysis leaves flexibility, we have questions about wise legislative choices. To consider these issues carefully, we need to have a sense of what counts as relevant speech and the exercise of religion. That is the focus of this article.

It addresses the basic categorization of what counts as “speech” for freedom of speech and what counts as religious exercise when each is engaged in by ordinary individuals and private organizations. There is an obvious overlap, but does the category or combination matter for how state and federal governments may treat practices? Does speech just swallow religious exercise? The most obvious form of government involvement is prohibition, but favorable treatment, including financial aid, can also matter. Of concern here are constitutional limits, acceptable and wise legislative and administrative choices, and what the common law provides, including what counts as a tort.

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