Is the First Amendment's right of free exercise of religion conditional upon government interests? Many eighteenth-century Americans said it was utterly unconditional. For example, James Madison and numerous contemporaries declared in 1785 that "the right of every man to exercise ['Religion'] ... is in its nature an unalienable right" and "therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society." In contrast, during the past forty years, the United States Supreme Court has repeatedly conditioned the right of free exercise on compelling government interests. The Court not merely qualifies the practice of the free exercise of religion, but places conditions on the First Amendment's right of free exercise. As explained by the Court, a compelling government interest "'can justify exacting a sacrifice of First Amendment freedoms"' and even can "be sufficient to warrant a substantial infringement of religious liberties." Evidently, conceptions of the right of free exercise of religion have changed. How did this happen? How did the inalienable right of free exercise of religion come to be understood as a right contingent upon compelling government interests?
Philip A. Hamburger,
More Is Less,
Va. L. Rev.
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