WIP note: The following is an edited selection from a talk by attorney Peter Goldberger, given at the NWTRCC gathering at the Earlham School of Religion, November 8, 2014.
The Free Exercise Clause is the part of the First Amendment that assures each adherent of a minority faith the right to practice his or her religion without state interference. Taken literally, the Free Exercise Clause would seem to establish a general right of conscientious objection to any and all laws for religious people. When a law requires everyone to engage in certain conduct, and that conduct violates some people’s religion, or the law prohibits conduct that is required by some people’s religion, doesn’t the law violate the Free Exercise Clause as applied to those people? Well, logic would say yes, but for all of its history the Supreme Court has said no to that question.
The Supreme Court has never wavered from the position that the Free Exercise Clause “embraces two concepts: freedom to believe, and freedom to act; the first is absolute, the second, in the nature of things, cannot be.” And guess what case they said that in? The 1878 Reynolds decision, ruling against a Mormon for engaging in polygamy. That’s the foundation of American religious freedom law under the Free Exercise Clause…
To read more… http://vimeo.com/album/3451940/video/131442406