The politics of a second class right: free exercise in contemporary America.

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

I want to begin with a few comments on the title of today's symposium. It strikes me that there are at least three reasons why free exercise of religion is a "second class right" in our own particular period of American history. The first, of course, is that this right was essentially written out of the Constitution by the Supreme Court in Smith v. Employment Division. To put it plainly, I believe that the decision in that case effectively repealed the Free Exercise Clause of the First Amendment to the US Constitution rendering it, at best, a second class right. We have no right to the free exercise of religion at this moment, unless that exercise exists in tandem with other rights specifically set out in the Constitution, or unless that exercise is directly targeted, per se, by state action.

Second, and speaking now more directly to my own field of political analysis, it seems to me that political developments have rendered free exercise law "less sexy" recently as compared with establishment law. At the heart of this development is the fact that the United States is so deeply divided in political terms on the matter of religion's proper role in the public square. To be sure, the United States population is still arguably the most religious population in the industrialized world. There are polls that indicate, for example, that forty percent of Americans attend religious services on a weekly basis. That figure is not an accurate reflection of actual attendance patterns, of course, but the mere fact that forty-percent say that they attend service probably tells you a great deal about religious culture in America. Nevertheless, there is a large, vocal slice of the American public that is vehemently and resolutely secular, and another larger slice that is at the very least "de-churched." These populations face off against another large, and even more vocal element that is devoted with zeal (in the true sense of that term) to resist efforts to secularize public life in the United States, and to ensure that public institutions, and public law continue to reflect what they consider to be the religious, and often Christian traditions of American culture and politics. As a result, political conflicts surrounding the Establishment Clause took center stage in American political strife over the last twenty five years or so. People who never heard of Smith or Sherbert or Yoder, very definitely have heard of Jerry Falwell, and if you tell them that they are going to be governed by laws written by Falwell and his supporters then...