Who Protects Religious Liberty? Judicial Power, Free Exercise, and Civic Thought

This paper examines the Supreme Court’s jurisprudence on the First Amendment protection of the Free Exercise of religion by focusing on the Court’s judicial role to provide civic education in America’s constitutional principles. It argues that the Court’s current Free Exercise jurisprudence has ignored the Court’s teaching role by favoring brightline tests that fail to apply constitutional principles to the circumstances of each case. In these cases, the Court has refused to model for citizens how to reflect on constitutional principles and carefully apply them to new circumstances. This hesitancy reflects a greater debate over whether the judiciary or the legislature is the best protection for religious liberty and the proper educator on constitutional rights. Despite the Court’s constitutional role as teacher on constitutional rights, there are inherent limits to its authority to educate on religion given the liberal nature of the American regime. The Court limits itself to legal questions affecting religion and leaves religious doctrine and its truth outside of its cognizance in order to restrain its educative function to the proper constitutional limits. The Court’s Free Exercise jurisprudence thus demonstrates the potential and limits for the Court to protect religious liberty and educate citizens on religious freedom.