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33 Loyola University Chicago Law Journal 95 (2001)


This article responds to Professor Mark Tushnet's article, "The Redundant Free Exercise Clause?" Although its analysis and specific conclusions are distinctive, the article reaches a general conclusion similar to Tushnet's - namely, that the contemporary Free Exercise Clause is largely redundant, in that it provides little protection that is not afforded independently by other First Amendment doctrines. The article first contends that the core principle of the contemporary Free Exercise Clause, the nondiscrimination requirement of Employment Division v. Smith, might be subsumed, perhaps entirely, within the free speech principle that disfavors content discrimination. To that extent, the Free Exercise Clause is redundant. The article then considers whether the Free Exercise Clause might have additional, and potentially non-redundant meaning. First, the Clause might not merely forbid purposeful discrimination against religion; it might include a more robust requirement of "general applicability." Second, the Clause might provide some non-redundant constitutional protection against laws that are nondiscriminatory and generally applicable. Third, even when the Clause does no independent doctrinal work, it might have doctrinal significance by informing the particular substance of the Supreme Court's other First Amendment doctrines. The article contends that the exercise of religion now receives only limited constitutional protection, and very little of that protection is grounded distinctively in the Free Exercise Clause. It concludes by highlighting certain basic trends - philosophical, jurisprudential, and religious - that may help explain not only the Court's limited protection of religious exercise as such, but also the migration of religious freedom claims to other doctrinal rubrics.