B. The Establishment Clause as a Protection of Freedom – For Religion
What about the Establishment Clause? How does it fit within this understanding of religious freedom? Does it fit at all? Does it not lean rather against the idea of special protection of religious conduct, and thus the strong pro-exemptions reading of the Free Exercise Clause, by forbidding government from “favoring” religion?
These questions have altogether straightforward answers, but those answers have eluded modern courts and commentators. Blinded by the modern paradigm, and seemingly indifferent to how anachronistic it is as a mode of understanding the religion clauses of the First Amendment (proposed and adopted in the late eighteenth century), modern would-be interpreters of the Establishment Clause have sought to transform it from a cognate protection of religious liberty into a limitation on religion. On this reading, the Establishment Clause checks religion‟s ability to play a role in public life and balances government‟s (including courts‟) constitutional duty to accommodate free exercise with a requirement of secular neutrality toward religion. The Establishment Clause comes first, textually, and on this view of it constrains both the Free Exercise Clause and the Free Speech Clause, which follow. Religion should be excluded from the public square; religious arguments and advocacy should be excluded from public discourse; religious motivations should invalidate laws reflecting such motivation or inspiration; religious speakers and groups should not be accorded equal access to public forums for expression or public benefits to which they would otherwise be entitled; and religious free exercise should never be specially accommodated, in the form of specifically religious exemption from laws of otherwise general applicability.101
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Constitution, supra note xx, at 362-368 [Notre Dame 1986] (discussing Bob Jones University v. United States). 101 For accounts (and criticism) of such views, as applied in various issue-specific contexts and discussing specific cases, see Michael Stokes Paulsen, A Funny Things Happened on the Way to the Limited Public Forum: Unconstitutional Conditions on „Equal Access‟ for Religious Speakers and Groups, 29 U.C. Davis L. Rev. 653, 653-668 (1996); Paulsen, Lemon is Dead, 43 Case Western Reserve L. Rev. at 800-819.
Under the original conception of religious liberty embodied in the religion clauses, each of these conclusions is wrong – indeed, 180 degrees wrong. They state exactly the opposite of the original meaning of the First Amendment. If religious liberty exists for the benefit of religion – as a freedom for religion, protecting it from government – it becomes utterly implausible to read the Establishment Clause as some sort of anti-religion counterweight to the Free Exercise Clause – a freedom from religion. (It is also implausible as a simple textual matter to read the First Amendment as deliberately embracing self-contradictory principles.)102 Rather, the Establishment Clause can be seen in its natural, and original, sense as a protection of religious liberty motivated by the second of the paradigms discussed in Section I, above: it embodies the view that religious truth exists but that the secular state has no proper role in prescribing religious orthodoxy or compelling religious observance. The Establishment Clause is not a freedom from religion provision. It is a freedom of religion from government provision. It specifically dis-empowers the State in matters of religious exercise. As such, it is of a piece with the conception of religious liberty as reflecting the view that God‟s commands have priority over the State‟s – a corollary proposition that the State is not competent to decide for individuals what is true religion and what God‟s commands are.
This too reflects religious premises, widely subscribed to in religious, post-Great Awakening (yet still Enlightenment-influenced) America – the America that existed at the time of the framing of the religion clauses – that genuine religious faith does not come from coercion, but from free inquiry and free persuasion; that religious truth prospers best in an atmosphere of liberty; and that religious truth does not require government coercion to prosper, but instead can be impeded by such coercion. Such notions are not in any sense a retreat from belief in the priority of God and God‟s commands. On the contrary, they are an application of that belief: the priority of God, taken seriously, means the consistent disavowal of state authority in matters of religion.
The Establishment Clause, then, is a provision that prohibits government from compelling or requiring persons to engage in religious exercise against their will. It “imposes a disability on the exercise of government power in such a manner as to compel religious belief or exercise or to punish failure to adhere to a state-prescribed religious orthodoxy.”103 As I have explained (at much greater length) elsewhere, the
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102 See Paulsen, Making Sense of Religious Freedom, supra note xx at 1613-1614 & n.9 (collecting arguments and authorities). See also Paulsen, Lemon is Dead, 43 Case Western Reserve L. Rev. at 801-802. The Supreme Court persists in embracing a limited version of this odd religion-clauses-as-self-contradiction position in dicta noting a supposed “tension” between the Free Exercise Clause and the Establishment Clause and the need to find some room for “play in the joints” between competing principles. See Hosanna Tabor; cite; Cutter v. Wilkinson cite; Locke v. Davey, cite. [HELP!]
103 Paulsen, Making Sense of Religious Freedom, supra note xx at 1610. I have advanced the following as a statement of the rule of law supplied by the Establishment Clause: “Government may not, through direct legal sanction (or threat thereof), or as a condition of some other right, benefit, or privilege, require individuals to engage in acts of religious exercise, worship, expression, or affirmation; nor may it require individuals to attend or give their direct and personal financial support to a religious body or ministry.” Paulsen, Lemon is Dead, supra, 43 Case Western Res. L. Rev. at 797.
Establishment Clause protects the free non-exercise of religion in the same breath that the Free Exercise Clause protects the free exercise of religion.104 The clauses work in parallel, and operate in a similar fashion, protecting a single value of freedom for religion, but from two directions. The Establishment Clause forbids government prescription of religious exercise; the Free Exercise Clause forbids government proscription of religious exercise. They are not at all contradictory or even in tension. Rather, they are two sides of the same coin.105
It follows from this that the Establishment Clause certainly does not require exclusion of religious speakers, groups, and persons, from public forums and public benefits. It follows that the Establishment Clause is not so much concerned with government “endorsement” of religion as with actual coercion of religious exercise.106 (Endorsement without coercion is simply government speech, which may be troubling and irritating at times, but in principle poses no different problem for government speech about religion than for government speech on any other topic.) And it follows, most significantly, that the Establishment Clause neither disfavors accommodation of genuine religious exercise, leans against the exemptions reading of the Free Exercise Clause as an affirmative substantive right, nor requires that religious and non-religious conscientious claims be treated alike. A reading of the Establishment Clause that emasculates the Free Exercise Clause – and the core idea that religious liberty exists specifically to protect religion – is simply not faithful to the original, core conception of religious liberty under the First Amendment.
Conclusion
The view I have sketched here is in some ways radical. It represents a major departure, in its basic conception, from most accounts of constitutional religious freedom in America today. Further, it contemplates a fairly radical revision of current First Amendment doctrine. In another sense, however, the view I have sketched here is merely restorative. Its radicalism (if it really can be called that) lies in its return to original principles – a return to a lost, or at least neglected, account of the real reason for religious liberty as understood at the time of the formation of the Constitution. To the extent we have wandered far from those original principles and reasons; to the extent that our world today looks and feels very different from the more religiously serious world in which the religion clauses of the First Amendment were incubated and hatched; to the extent that our long-familiar modern doctrinal constructs and paradigms ignore or slight those original reasons for, and original meanings of, freedom for religion; and to the extent
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104 Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L. Rev. 311, 313-314 (1986); see also Paulsen, Lemon is Dead, 43 Case Western Reserve L. Rev. at 800-808.
105 See sources cited in note [104].
106 Michael W. McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary L. Rev. 993 (1986). For a lighthearted take on the issue of government “endorsement” of religion through speech or symbols, see Michael Stokes Paulsen, Is St. Paul Unconstitutional?, 23 Const. Comm. 1 (2006).
returning to those original views would produce sometimes surprising conclusions and results, the constitutional view I have sketched here will appear radical. The challenge I offer is to return to this lost world, on the ground that it is the correct way of understanding religious liberty under the original meaning of the Constitution‟s religion clauses, and that that meaning must be regarded as controlling for us today for as long as we are governed by a written Constitution that contains those provisions.
In his insightful commentary on this paper in draft form, when I presented it at the “Conflicting Claims” conference sponsored by Pepperdine University School of Law in February 2012, Professor Eugene Volokh cut me to the quick – or so I felt, at first – with the seemingly devastating objection (or insult) that my proposed reinterpretation of the religion clauses, under which good faith claims of religious liberty very often but not always defeat application of society‟s laws to particular religious conduct, transformed the Free Exercise Clause into a “Super-Lochner” doctrine. My reading, Volokh charged, like the discredited Lochner doctrine of “substantive due process,” would license courts to strike down the application of society‟s laws whenever they impair specified claims of “liberty.” 107
Professor Volokh‟s objection has some persuasive force, and considerable rhetorical power. It is essentially the objection that Justice Scalia made to a strong reading of the Free Exercise Clause, at the conclusion of his majority opinion in Employment Division v. Smith,108 and that may well have been the driving psychological intuition underlying the entire Smith opinion.
But I wonder. As I replied at the conference: What if there really were a “Substantive Due Process Clause” in the Constitution? What if the Constitution actually said something like this: “Government may make no law prohibiting economic freedom.” As undesirable as Professor Volokh and I might think such a constitutional provision, if it were really there in the Constitution it presumably would be the duty of judges and political officials (and law professors) to apply and follow it faithfully, irrespective of their views as to its desirability. The task of faithful constitutional interpretation would be to seek to discern and apply correctly the original public linguistic meaning of such an Economic Substantive Due Process Clause. And if the
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107 The doctrine of “substantive due process,” while intellectually discredited, keeps coming back – like a bad penny. Its first cataclysmic appearance to invalidate a major legislative act was in the Supreme Court‟s monstrous opinion in Dred Scott v. Sandford, 60 U.S. 393 (1857), though the doctrine is most closely associated with the case of Lochner v. New York, 198 U.S. 45 (1905). The Supreme Court decisively repudiated the Lochner approach, which reigned for nearly forty years in the early twentieth century, in a series of cases in the mid-twentieth century, only to return to the doctrine in a different form in the last third of the twentieth century. Paulsen et al. The Constitution of the United States (2010) 1515-1547. For an excellent grand tour of the rise, fall, rise, fall, and rise of this generally discredited doctrine, see Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 Mich. L. Rev. 1555 (2004).
Professor Volokh‟s comments “cut me to the quick” because I have been a consistent and sometimes vehement critic of the doctrine. See, e.g., Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995, 1007-1025 (2003); see also Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation? 103 Nw. U. L. Rev. at 895-897.
108 See Smith, 490 U.S. at 889 n.5 (“It is . . . horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice.”)
proper performance of that task produced something resembling a Lochner doctrine – even a “Super-Lochner” doctrine – so be it.
And so I chose, and still choose, to embrace Professor Volokh‟s insult-insight rather than deny it: The Free Exercise Clause is, within the sphere of its objects, a Super-Lochner doctrine. If the account I have given here is correct, the Free Exercise Clause in fact says something akin to my hypothetical Economic Substantive Due Process clause. It does not say that government may “make no law prohibiting economic freedom,” but it does say that government shall “make no law . . . prohibiting the free exercise” of religion. Interpreting and applying such a provision may be very much like interpreting my imagined Economic Substantive Due Process Clause. Accordingly, taken seriously on its own terms, the Free Exercise Clause may well entail a “Super-Lochner” doctrine of a sort. It is a Super-Lochner Clause limited to specific kinds of claims of individual liberty. The objects the right embraces, and the limitations on its scope, are ones specific to that text. It does not operate to invalidate a law in its entirety, but merely to prevent its application to specific individual or group religious conduct. But it does trump, more than occasionally, the usual powers of government. It is like Lochner in that respect, to be sure.
But it is unlike Lochner in that, unlike the hypothetical Economic Substantive Due Process Clause, there really is a Free Exercise Clause of the First Amendment. That clause, understood in historical-social and linguistic context, takes as its starting point the premise that individual claims to freely exercise the requirements or duties of their religious faith really should and do, in principle, have priority over the competing commands of the State. The Free Exercise Clause is thus best read to bar application of laws that operate so as to prohibit the free exercise of religion. It generally excludes – exempts – good-faith (pun intended) religious conduct from the ambit of secular government‟s authority, subject to defeasance only in the most clear and extreme circumstances in which the claimed right can be said not to have a good-faith basis in anything that can plausibly attributed to the commands of God. The First Amendment religion clauses, in short, are a constitutional trump on what would otherwise be regarded as the proper authority of the State, flowing from a natural law understanding of the priority of God‟s true claims on human conduct over any competing obligation imposed by Man. –By Michael Stokes Paulsen, Distinguished University Chair and Professor of Law, University of St. Thomas School of Law
Foot Note: This paper can be downloaded without charge from The Social Science Research Network electronic library here. A complete list of University of St. Thomas School of Law Research Papers can be found here.
What about the Establishment Clause? How does it fit within this understanding of religious freedom? Does it fit at all? Does it not lean rather against the idea of special protection of religious conduct, and thus the strong pro-exemptions reading of the Free Exercise Clause, by forbidding government from “favoring” religion?
These questions have altogether straightforward answers, but those answers have eluded modern courts and commentators. Blinded by the modern paradigm, and seemingly indifferent to how anachronistic it is as a mode of understanding the religion clauses of the First Amendment (proposed and adopted in the late eighteenth century), modern would-be interpreters of the Establishment Clause have sought to transform it from a cognate protection of religious liberty into a limitation on religion. On this reading, the Establishment Clause checks religion‟s ability to play a role in public life and balances government‟s (including courts‟) constitutional duty to accommodate free exercise with a requirement of secular neutrality toward religion. The Establishment Clause comes first, textually, and on this view of it constrains both the Free Exercise Clause and the Free Speech Clause, which follow. Religion should be excluded from the public square; religious arguments and advocacy should be excluded from public discourse; religious motivations should invalidate laws reflecting such motivation or inspiration; religious speakers and groups should not be accorded equal access to public forums for expression or public benefits to which they would otherwise be entitled; and religious free exercise should never be specially accommodated, in the form of specifically religious exemption from laws of otherwise general applicability.101
———————–
Constitution, supra note xx, at 362-368 [Notre Dame 1986] (discussing Bob Jones University v. United States). 101 For accounts (and criticism) of such views, as applied in various issue-specific contexts and discussing specific cases, see Michael Stokes Paulsen, A Funny Things Happened on the Way to the Limited Public Forum: Unconstitutional Conditions on „Equal Access‟ for Religious Speakers and Groups, 29 U.C. Davis L. Rev. 653, 653-668 (1996); Paulsen, Lemon is Dead, 43 Case Western Reserve L. Rev. at 800-819.
Under the original conception of religious liberty embodied in the religion clauses, each of these conclusions is wrong – indeed, 180 degrees wrong. They state exactly the opposite of the original meaning of the First Amendment. If religious liberty exists for the benefit of religion – as a freedom for religion, protecting it from government – it becomes utterly implausible to read the Establishment Clause as some sort of anti-religion counterweight to the Free Exercise Clause – a freedom from religion. (It is also implausible as a simple textual matter to read the First Amendment as deliberately embracing self-contradictory principles.)102 Rather, the Establishment Clause can be seen in its natural, and original, sense as a protection of religious liberty motivated by the second of the paradigms discussed in Section I, above: it embodies the view that religious truth exists but that the secular state has no proper role in prescribing religious orthodoxy or compelling religious observance. The Establishment Clause is not a freedom from religion provision. It is a freedom of religion from government provision. It specifically dis-empowers the State in matters of religious exercise. As such, it is of a piece with the conception of religious liberty as reflecting the view that God‟s commands have priority over the State‟s – a corollary proposition that the State is not competent to decide for individuals what is true religion and what God‟s commands are.
This too reflects religious premises, widely subscribed to in religious, post-Great Awakening (yet still Enlightenment-influenced) America – the America that existed at the time of the framing of the religion clauses – that genuine religious faith does not come from coercion, but from free inquiry and free persuasion; that religious truth prospers best in an atmosphere of liberty; and that religious truth does not require government coercion to prosper, but instead can be impeded by such coercion. Such notions are not in any sense a retreat from belief in the priority of God and God‟s commands. On the contrary, they are an application of that belief: the priority of God, taken seriously, means the consistent disavowal of state authority in matters of religion.
The Establishment Clause, then, is a provision that prohibits government from compelling or requiring persons to engage in religious exercise against their will. It “imposes a disability on the exercise of government power in such a manner as to compel religious belief or exercise or to punish failure to adhere to a state-prescribed religious orthodoxy.”103 As I have explained (at much greater length) elsewhere, the
———————–
102 See Paulsen, Making Sense of Religious Freedom, supra note xx at 1613-1614 & n.9 (collecting arguments and authorities). See also Paulsen, Lemon is Dead, 43 Case Western Reserve L. Rev. at 801-802. The Supreme Court persists in embracing a limited version of this odd religion-clauses-as-self-contradiction position in dicta noting a supposed “tension” between the Free Exercise Clause and the Establishment Clause and the need to find some room for “play in the joints” between competing principles. See Hosanna Tabor; cite; Cutter v. Wilkinson cite; Locke v. Davey, cite. [HELP!]
103 Paulsen, Making Sense of Religious Freedom, supra note xx at 1610. I have advanced the following as a statement of the rule of law supplied by the Establishment Clause: “Government may not, through direct legal sanction (or threat thereof), or as a condition of some other right, benefit, or privilege, require individuals to engage in acts of religious exercise, worship, expression, or affirmation; nor may it require individuals to attend or give their direct and personal financial support to a religious body or ministry.” Paulsen, Lemon is Dead, supra, 43 Case Western Res. L. Rev. at 797.
Establishment Clause protects the free non-exercise of religion in the same breath that the Free Exercise Clause protects the free exercise of religion.104 The clauses work in parallel, and operate in a similar fashion, protecting a single value of freedom for religion, but from two directions. The Establishment Clause forbids government prescription of religious exercise; the Free Exercise Clause forbids government proscription of religious exercise. They are not at all contradictory or even in tension. Rather, they are two sides of the same coin.105
It follows from this that the Establishment Clause certainly does not require exclusion of religious speakers, groups, and persons, from public forums and public benefits. It follows that the Establishment Clause is not so much concerned with government “endorsement” of religion as with actual coercion of religious exercise.106 (Endorsement without coercion is simply government speech, which may be troubling and irritating at times, but in principle poses no different problem for government speech about religion than for government speech on any other topic.) And it follows, most significantly, that the Establishment Clause neither disfavors accommodation of genuine religious exercise, leans against the exemptions reading of the Free Exercise Clause as an affirmative substantive right, nor requires that religious and non-religious conscientious claims be treated alike. A reading of the Establishment Clause that emasculates the Free Exercise Clause – and the core idea that religious liberty exists specifically to protect religion – is simply not faithful to the original, core conception of religious liberty under the First Amendment.
Conclusion
The view I have sketched here is in some ways radical. It represents a major departure, in its basic conception, from most accounts of constitutional religious freedom in America today. Further, it contemplates a fairly radical revision of current First Amendment doctrine. In another sense, however, the view I have sketched here is merely restorative. Its radicalism (if it really can be called that) lies in its return to original principles – a return to a lost, or at least neglected, account of the real reason for religious liberty as understood at the time of the formation of the Constitution. To the extent we have wandered far from those original principles and reasons; to the extent that our world today looks and feels very different from the more religiously serious world in which the religion clauses of the First Amendment were incubated and hatched; to the extent that our long-familiar modern doctrinal constructs and paradigms ignore or slight those original reasons for, and original meanings of, freedom for religion; and to the extent
———————–
104 Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L. Rev. 311, 313-314 (1986); see also Paulsen, Lemon is Dead, 43 Case Western Reserve L. Rev. at 800-808.
105 See sources cited in note [104].
106 Michael W. McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary L. Rev. 993 (1986). For a lighthearted take on the issue of government “endorsement” of religion through speech or symbols, see Michael Stokes Paulsen, Is St. Paul Unconstitutional?, 23 Const. Comm. 1 (2006).
returning to those original views would produce sometimes surprising conclusions and results, the constitutional view I have sketched here will appear radical. The challenge I offer is to return to this lost world, on the ground that it is the correct way of understanding religious liberty under the original meaning of the Constitution‟s religion clauses, and that that meaning must be regarded as controlling for us today for as long as we are governed by a written Constitution that contains those provisions.
In his insightful commentary on this paper in draft form, when I presented it at the “Conflicting Claims” conference sponsored by Pepperdine University School of Law in February 2012, Professor Eugene Volokh cut me to the quick – or so I felt, at first – with the seemingly devastating objection (or insult) that my proposed reinterpretation of the religion clauses, under which good faith claims of religious liberty very often but not always defeat application of society‟s laws to particular religious conduct, transformed the Free Exercise Clause into a “Super-Lochner” doctrine. My reading, Volokh charged, like the discredited Lochner doctrine of “substantive due process,” would license courts to strike down the application of society‟s laws whenever they impair specified claims of “liberty.” 107
Professor Volokh‟s objection has some persuasive force, and considerable rhetorical power. It is essentially the objection that Justice Scalia made to a strong reading of the Free Exercise Clause, at the conclusion of his majority opinion in Employment Division v. Smith,108 and that may well have been the driving psychological intuition underlying the entire Smith opinion.
But I wonder. As I replied at the conference: What if there really were a “Substantive Due Process Clause” in the Constitution? What if the Constitution actually said something like this: “Government may make no law prohibiting economic freedom.” As undesirable as Professor Volokh and I might think such a constitutional provision, if it were really there in the Constitution it presumably would be the duty of judges and political officials (and law professors) to apply and follow it faithfully, irrespective of their views as to its desirability. The task of faithful constitutional interpretation would be to seek to discern and apply correctly the original public linguistic meaning of such an Economic Substantive Due Process Clause. And if the
———————–
107 The doctrine of “substantive due process,” while intellectually discredited, keeps coming back – like a bad penny. Its first cataclysmic appearance to invalidate a major legislative act was in the Supreme Court‟s monstrous opinion in Dred Scott v. Sandford, 60 U.S. 393 (1857), though the doctrine is most closely associated with the case of Lochner v. New York, 198 U.S. 45 (1905). The Supreme Court decisively repudiated the Lochner approach, which reigned for nearly forty years in the early twentieth century, in a series of cases in the mid-twentieth century, only to return to the doctrine in a different form in the last third of the twentieth century. Paulsen et al. The Constitution of the United States (2010) 1515-1547. For an excellent grand tour of the rise, fall, rise, fall, and rise of this generally discredited doctrine, see Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 Mich. L. Rev. 1555 (2004).
Professor Volokh‟s comments “cut me to the quick” because I have been a consistent and sometimes vehement critic of the doctrine. See, e.g., Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995, 1007-1025 (2003); see also Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation? 103 Nw. U. L. Rev. at 895-897.
108 See Smith, 490 U.S. at 889 n.5 (“It is . . . horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice.”)
proper performance of that task produced something resembling a Lochner doctrine – even a “Super-Lochner” doctrine – so be it.
And so I chose, and still choose, to embrace Professor Volokh‟s insult-insight rather than deny it: The Free Exercise Clause is, within the sphere of its objects, a Super-Lochner doctrine. If the account I have given here is correct, the Free Exercise Clause in fact says something akin to my hypothetical Economic Substantive Due Process clause. It does not say that government may “make no law prohibiting economic freedom,” but it does say that government shall “make no law . . . prohibiting the free exercise” of religion. Interpreting and applying such a provision may be very much like interpreting my imagined Economic Substantive Due Process Clause. Accordingly, taken seriously on its own terms, the Free Exercise Clause may well entail a “Super-Lochner” doctrine of a sort. It is a Super-Lochner Clause limited to specific kinds of claims of individual liberty. The objects the right embraces, and the limitations on its scope, are ones specific to that text. It does not operate to invalidate a law in its entirety, but merely to prevent its application to specific individual or group religious conduct. But it does trump, more than occasionally, the usual powers of government. It is like Lochner in that respect, to be sure.
But it is unlike Lochner in that, unlike the hypothetical Economic Substantive Due Process Clause, there really is a Free Exercise Clause of the First Amendment. That clause, understood in historical-social and linguistic context, takes as its starting point the premise that individual claims to freely exercise the requirements or duties of their religious faith really should and do, in principle, have priority over the competing commands of the State. The Free Exercise Clause is thus best read to bar application of laws that operate so as to prohibit the free exercise of religion. It generally excludes – exempts – good-faith (pun intended) religious conduct from the ambit of secular government‟s authority, subject to defeasance only in the most clear and extreme circumstances in which the claimed right can be said not to have a good-faith basis in anything that can plausibly attributed to the commands of God. The First Amendment religion clauses, in short, are a constitutional trump on what would otherwise be regarded as the proper authority of the State, flowing from a natural law understanding of the priority of God‟s true claims on human conduct over any competing obligation imposed by Man. –By Michael Stokes Paulsen, Distinguished University Chair and Professor of Law, University of St. Thomas School of Law
Foot Note: This paper can be downloaded without charge from The Social Science Research Network electronic library here. A complete list of University of St. Thomas School of Law Research Papers can be found here.
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