The constitutional requirement of sensitivity to religion.

• Author: Hesse, Richard A.
• Position: Symposium: A Second-Class Constitutional Right? Free Exercise and the Current State of Religious Freedom in the United States

I don't know whether the Smith opinion can stand much more whipping today. It's received quite a bit. Unfortunately from my point of view, it's not a dead horse. It lives, breathes, and continues to do harm. So I think it deserves more attention in a way that we haven't quite touched on today. That's going to be the direction which I hit.

I want to begin by looking back a considerable amount of time. If we don't know where we came from, we don't know who we are, and we don't know where we're going. That is not an invention of mine, but I like it. So I want to look at where we came from with free exercise. There was a time when religion and government were in fact one. That time existed in our country. So we don't need to go back beyond Jamestown. We don't need to go back into European history or history elsewhere. We can look here at our own history and find that government and religion were one. As the separation between the two grew, it became necessary to establish spheres of authority and power for each and hence a boundary line of some sort that would exist between the two. While all that was going on we had the Enlightenment and the development of individualism. Thus, we have a number of currents contributing to the, dare I say it, evolution that produced the free exercise doctrine as it exists in the Federal Constitution.

I stress that the state constitution has been mentioned here in the earlier panel and deserves mentioning yet again because the free exercise concept, or should I say concepts, existed at the state level prior to the time they existed at the national level and indeed it is fair to ask whether the Federal Constitution introduces anything new with respect to free exercise. Now we have had two hundred and sixteen years since the adoption of the Bill of Rights and in that time religion, however it is defined, and religious activity has expanded and in the government sphere the state has expanded its influence as well. And so while the state is more active by far than it was at the time of the framing of the Bill of Rights and religion is both more numerous and more diverse in its theocratic concepts we find both asserting themselves today in 2007 and for perhaps the last fifteen, twenty years, in fact, you can plug in any number of years there and you will see a progression in which both the state and religious activity expanded. Therefore the opportunities for conflict between the two have grown enormously. So free exercise is more important today than it was in 1791 when the Founders struggled with how they would draw the appropriate lines between government authority and the religious propositions.

Now I want to stress that from my point of view and my reading the history the Free Exercise Clause is about individuals while the Establishment Clause is about groups. The Founders had a particular view of establishment that is really quite different than the view that has grown from...