Religion as Speech: The Growing Role of Free Speech Jurisprudence in Protecting Religious Liberty

This article explores the role of free speech jurisprudence in protecting religious liberty, both describing how that role has grown in recent years and evaluating its propriety for the twenty-first century. The article begins by briefly examine the historic role free speech doctrine has played in protecting religious liberty through the mid-1980’s, when the Rehnquist Court began. Part two will then discuss how during the Rehnquist Court free speech became perhaps the primary vehicle to protect religious liberty. Although the Rehnquist Court largely followed earlier holdings regarding religious speech, it changed the analysis in two significant ways: first, by characterizing the exclusion of religious speech from public for a as viewpoint, rather than subject-matter discrimination, and second, by making neutral treatment of religion the defining feature of the Court’s Establishment Clause jurisprudence. Taken together, these two development made free speech a potent vehicle to protect religious activity and expression in American public life. At the same time, the Rehnquist Court also greatly limited the scope of protection under the Free Exercise Clause, further shifting protection of religious liberty toward the Free Speech Clause. Finally, part three will briefly discuss what this increasing focus on free speech as the primary basis to protect religion means and what role it might play in the twenty-first century. Part A discusses how the Supreme Court’s recent cases suggest that the Court itself views religion as a full co-participant in America’s public life, to be received on the same terms as any other world view or value system. Under this vision, religion is neither privatized on the one hand nor given special constitutional protections on the other, in contrast to views often advocated by legal scholars. This more minimalist approach to the religion clauses deprives religion of much, though not all, of its unique status under the Constitution, but also grants its full entry into the public square. Part B then assesses how well this “religion as speech” approach fits with America in the twenty-first century, arguing that in most respects it does quite well. In particular, treating religion as a co-participant poses little threat to American values and political stability at this stage of our nation’s history, and in fact enhances, rather than detracts from the core American values of equality and individual liberty. It arguably is also well suited to the challenges that religion itself will face this century, which will more likely focus on societal attempts to privatize religious influences, rather than intentional interference with or promotion of religion. Free speech doctrine, which requires equal treatment, is well-positioned to address such societal pressures