Academic

Kilmartin on Free Exercise & Free Speech

By Lawrence Solum

Alison M. Kilmartin (Penn State Dickinson School of Law) has posted Free Exercise, Free Speech, and 'Mere Religious Worship' on SSRN.  Here is the abstract:

On December 4, 1800, there was no objection in the House of Representatives' chamber when the "Speaker informed the House that the Chaplains had proposed . . . to hold Divine service every Sunday in their Chamber." On January 3, 1803, one year after President Jefferson penned the now-famous "separation between church and state letter," U.S. Representative Manasseh Cutler noted in his diary that, "[President Jefferson] and his family have constantly attended public worship in the Hall."

These stories provide a poignant backdrop to this discussion about which First Amendment clause religious groups should apply when they seek equal access to public spaces. Religious groups for years, as seen in the opening stories, have exercised their religion in public spaces. Beginning with Widmar v. Vincent in 1981, religious groups argued for protection under the Free Speech Clause and won equal access to public spaces. Parties seeking equal access have not, however, argued under the Free Exercise Clause despite its favorable strict scrutiny standard. Perhaps, parties have not argued under free exercise because the Free Speech Clause provided adequate protection. Perhaps, parties relied on 'stare decisis' and tended to make arguments that worked in the past. Regardless of the reasons why, it may be time for a change.

Full post as published by Legal Theory Blog on September 02, 2008 (boomark / email).