1 See, e.g., Nussbaum, Martha C., Liberty of Conscience: In Defense of America's Tradition of Religious Equality (Basic Books 2008)Google Scholar; Feldman, Noah, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. Rev. 346 (2002) [hereinafter Feldman, Intellectual Origins]Google Scholar; Feldman, Noah, From Liberty to Equality: The Transformation of the Establishment Clause, 90 Cal. L. Rev. 673 (2002) [hereinafter Feldman, From Liberty to Equality]CrossRefGoogle Scholar; McConnell, Michael, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990)CrossRefGoogle Scholar.

2. 494 U.S. 872 (1990) (holding that the Free Exercise Clause does not require that exemptions be granted to those who have religious reasons not to comply with a neutral and generally applicable law).

3. See Feldman, From Liberty to Equality, supra note 1; McConnell, Michael, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990) [hereinafter McConnell, Free Exercise Revisionism]CrossRefGoogle Scholar; McConnell, Michael, Freedom From Persecution or Protection of the Rights of Conscience? A Critique of Justice Scalia's Historical Arguments in City of Boerne v. Flores, 39 Wm. & Mary L. Rev. 819 (1998) [hereinafter McConnell, Freedom From Persecution]Google Scholar.

4. See Laycock, Douglas, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1 (1990)Google Scholar; Smith, Steven D., What Does Religion Have to Do With Freedom of Conscience?, 76 U. Colo. L. Rev. 911 (2005)Google Scholar; Greenawalt, Kent, Religion and The Constitution: Free Exercise and Fairness 439–40 (2006)Google Scholar.

5. For example, the right to freedom of conscience was invoked as a basis for a woman's right to choose to have an abortion in Planned Parenthood v. Casey, 505 U.S. 833, 851-52 (1992). See Smith, supra note 4; Smith, Steven D., The Tenuous Case for Conscience, 10 Roger Williams U. L. Rev. 325 (2005)Google Scholar.

6. See McConnell, Free Exercise Revisionism, supra note 3; McConnell, Freedom From Persecution, supra note 3; NUSSBAUM, supra note 1; Laycock, supra note 4; GREENAWALT, supra note 4.

7. See McConnell, supra note 1 at 1491-1500; Nussbaum, supra note 1 at 164-73.

8. See, e.g., Smith, supra note 4, at 912; Eisgruber, Christopher L. & Sager, Lawrence G., Religious Freedom and the Constitution (Harv. Univ. Press 2007)CrossRefGoogle Scholar; Eisgruber, Christopher L. & Sager, Lawrence G., The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. Chi. L. Rev. 1245 (1994)CrossRefGoogle Scholar; Marshall, William P., In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev. 308 (1991)CrossRefGoogle Scholar.

9. See Eisgruber & Sager, Religious Freedom and the Constitution, supra note 8.

10. See Feldman, Noah, Divided by God: America's Church-State Problem—And What We Should do About It (Farrar, Straus & Giroux 2005)Google Scholar; Hasson, Kevin Seamus, The Right to be Wrong: Ending the Culture War Over Religion in America (Encounter Books 2005)Google Scholar; Smith, Steven D., The Iceberg of Religious Freedom: Sub-Surface Levels of Nonestablishment Discourse, 38 Creighton L. Rev. 799 (2005)Google Scholar.

11. See Feldman, supra note 10, at 7-8.

12. Smith, supra note 10, at 803-06.

13. For example, freedom of conscience plays a prominent role in the Catholic Church's Declaration on Religious Freedom, promulgated by Pope Paul VI in connection with the Second Vatican Council:

In all his activity a man is bound to follow his conscience in order that he may come to God, the end and purpose of his life. It follows that he is not to be forced to act in a manner contrary to his conscience. Nor, on the other hand, is he to be restrained from acting in accordance with his conscience, especially in matters religious.

Paul, VI, Dignitatis Humanae 3 (1965), available at http://www.vatican.va/archive/hist_councils/ii_vatican_cotmcil/documents/vat-ii_decl_19651207_dignitatis-humanae_en.htmlGoogle Scholar.

14. Feldman, Intellectual Origins, supra note 1, at 351.

15. See id.; McConnell, supra note 1; see also Reyes, René, Justice Souter's Religion Clause Jurisprudence: Judgments of Conscience, 43 Conn. L. Rev. 303, 315–19 (2010)Google Scholar (discussing McConnell's and Feldman's writings on freedom of conscience); Reyes, René, The Fading Free Exercise Clause, 19 Wm. & Mary Bill Rts. J. 725, 740–41, 743–44 (2011) (discussing same)Google Scholar.

16. McConnell, supra note 1, at 1430.

17. Feldman, Intellectual Origins, supra note 1, at 354.

18. When Gentiles, who do not possess the law, do instinctively what the law requires, these, though not having the law, are a law to themselves. They show that what the law requires is written on their hearts, to which their own conscience also bears witness; and their conflicting thoughts will accuse or perhaps excuse them on the day when, according to my gospel, God, through Jesus Christ, will judge the secret thoughts of all.

Rom 2:14-16 (All Biblical citations are taken from the NRSV.). See also Rom 13:5; 1 Cor 10:2729. For an analysis of the origins and uses of conscience in the New Testament, see Pierce, C.A., Conscience in the New Testament (SCM Press 1955)Google Scholar.

19. These include Peter Lombard, Jerome, Philip the Chancellor and Bonaventure. See Potts, Timothy C., Conscience in Medieval Philosophy (Cambridge Univ. Press 1980)CrossRefGoogle Scholar.

20. See generally Thomas Aquinas, Summa Theologica, I, ques. 79; id. at I-II, ques. 19 (Fathers of the English Dominican Province trans., Benzinger Bros. 1948); Thomas Aquinas, Debated Questions on Truth, translated in Potts, supra note 19, at 122-26. For a more concise discussion of Aquinas's role in the intellectual history of conscience, see Reyes, René, Conscience Reexamined: Liberty, Equality, and the Legacy of Roger Williams, 36 Hastings Const. L.Q. 1 (2008)Google Scholar.

21. For example, Martha Nussbaum and Robert Vischer each makes only limited references to Thomas Aquinas in their respective books on freedom of conscience. See Nussbaum, supra note 1, at 44, 278, 322; Vischer, Robert K., Conscience and the Common Good: Reclaiming the Space Between Person and State 53, 55, 58, 90, 99 (Cambridge Univ. Press 2010)Google Scholar. Michael White devotes some attention to Aquinas's theory in a recent article, but finds that “with respect to most… forms of intentional human behavior, there seems to be little theoretical room within the Thomistic tradition for the legal accommodation of conscience.” White, Michael J., The First Amendment's Religion Clauses: “Freedom of Conscience” Versus Institutional Accommodation, 47 San Diego L. Rev. 1075, 1080 (2010)Google Scholar.

22. Potts, supra note 19, at 46. Brian Davies similarly describes synderesis as a disposition through which people have a natural tendency to understand and assent to first principles of morality, but argues that Aquinas does not consider such knowledge of fundamental moral principles to be “innate”-at least not “if that is taken to mean that people are just born knowing fundamental moral principles.” Davies, Brian, The Thought of Thomas Aquinas 233 (Oxford Univ. Press 1992)Google Scholar. Davies explains: “To say that people can understand and assent to the first principles of morality is to say more than that it is logically possible for them to do so, or that they can do so from time to time if they so chose. It is to say that they have a natural tendency to do so at any time.” Id. For additional definitions and discussions of synderesis, see generally Greene, Robert A., Instinct of Nature: Natural Law, Synderesis, and the Moral Sense, 58 J. Hist. Ideas 173, 184 (1997)CrossRefGoogle Scholar (explaining that, for Aquinas, synderesis remained “a habit of the intellect engaged in an intuitive rational recognition of basic moral principles”); Langan, John, Beatitude and Moral Law in St. Thomas, 5 J. Rel. Ethics 183, 189 (1977)Google Scholar (describing synderesis as “a habit of moral knowledge which operates with regard to the principles of practical reason in the same way as understanding or intuition does, for Aristotle, with regard to the principles of theoretical reason”).

23. D'Arcy, Eric, Conscience and Its Right to Freedom 51 (Sheed & Ward 1961)Google Scholar (translating Thomas Aquinas, Summa Theologica, I, art. 12, ques. 79).

24. It may be suggested that the maxim “do good and avoid evil” is not subject to these kind of exceptions. However, as Eric D'Arcy has argued, this maxim is too general and too removed from any factual context to be of much real use. It is therefore better described as a purely formal principle than a usable premise for moral reasoning. See id. at 50-52.

25. Cf. Justice Stewart's concurrence in Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (declining to attempt to define “hard-core pornography” but asserting that “I know it when I see it”).

26. See D'Arcy, supra note 23, at 41; Potts, supra note 19, at 48; Thomas Aquinas, Summa Theologica, supra note 20, at I, art. 12, ques. 79; Thomas Aquinas, Debated Questions on Truth, supra note 20, ques. 16.2-16.3.

27. D'Arcy, supra note 23, at 41.

28. Potts, supra note 19, at 49.

29. See id. at 50; Thomas Aquinas, Debated Questions on Truth, supra note 20, ques. 16.3.

30. See Thomas Aquinas, Debated Questions on Truth, supra note 20, ques. 17.1; see also Potts, supra note 19, at 50; D'Arcy, supra note 23, at 45.

31. See Thomas Aquinas, Debated Questions on Truth, supra note 20, ques. 17.2; see also Potts, supra note 19, at 54.

32. See D'Arcy, supra note 23, at 43.

33. Thomas Aquinas, Debated Questions on Truth, ques. 17.2 (as translated by Potts, supra note 19, at 133).

34. Thomas Aquinas, Debated Questions on Truth, supra note 20, ques. 17.4; Thomas Aquinas, Summa Theologica, supra note 20, I-II, art. 5, ques. 19.

35. Thomas Aquinas, Summa Theologica, supra note 20, I-II, art. 5, ques. 19.

36. Thomas Aquinas, Debated Questions on Truth, supra note 20, ques. 17.4.

37. Thomas Aquinas, Summa Theologica, supra note 20, I-II, art. 5, ques. 19.

38. Id. at II-II, art. 12, ques. 10.

39. Id. at II-II, art. 8, ques. 10.

40. Id. Aquinas does suggest that the rites of non-Christians should be allowed if some good ensues from their toleration (such as where the Jewish rites foreshadow the truth of the Christian faith), or if some evil would ensue from their prohibition (such as where prohibition of pagan rites would cause scandal or disturbance, or might hinder the salvation of those who might come to the faith gradually if left unmolested). See id. at art. 11.

41. Id. atari. 8.

42. Id

43. See D'Arcy, supra note 23, at 162.

44. Aquinas himself does not make this point explicitly. While Aquinas discusses Jews and other non-Christians in his writings on conscience, it is not clear that the discussion includes those who claim no religious faith or who deny the existence of God altogether. Nevertheless, Aquinas's insistence upon the universal and inextinguishable nature of synderesis plainly implies that agnostics and atheists have equal access to the principles that underlie judgments of conscience.

45. See Feldman, Intellectual Origins, supra note 1, at 357-68; Vischer, supra note 21, at 53-63.

46. For a recent extended analysis of Roger Williams's views on liberty of conscience, see Nussbaum, supra note 1; see also Reyes, supra note 20.

47. See supra note 14.

48. References are to Locke, John, A Letter Concerning Toleration (Tully, James H. ed., Hackett Publ'g 1983)Google Scholar.

49. For a discussion of Locke's historical, political, and intellectual context, see Marshall, John, Locke, John, Toleration, and Early Enlightenment Culture (Cambridge Univ. Press 2006)Google Scholar.

50. Letter Concerning Toleration, supra note 48, at 26.

51. Id.

52. Id.

53. Id.

54. Id. at 27. This is, of course, a debatable assertion—for forced indoctrination and psychological compulsion might well induce inward changes of heart in some circumstances. See Smith, supra note 4, at 920-21.

55. Letter Concerning Toleration, supra note 48, at 27-28.

56. Id. at 38.

57. Id. at 51.

58. Id. at 50.

59. Id.

60. Id.

61. As John Marshall has noted, the arguments in Locke's Letter on Toleration “have usually been taken, both by Locke's near contemporaries, and by many but not all scholars since, as showing that Locke simply excluded all Catholics from toleration.” Marshall, supra note 49, at 690. Yet Marshall suggests that Locke might have been willing to tolerate at least some Catholics if political circumstances had been different. For example, while Marshall acknowledges that “[a]t many moments from the 1660s to the 1690s, Locke expressed considerable fear of Catholic threats to Protestant rule in England and Ireland,” he also emphasizes that Locke “displayed at many moments a desire to distinguish loyal and tolerable from seditious and intolerable Catholics in England, albeit often in the context of recording reasons why such a distinction was exceedingly difficult or currently impossible to make.” Id. at 686, 688. James Tully likewise argues that “Locke was willing to tolerate Catholics if they would relinquish their political obedience to the Pope but the various efforts for this failed. … [T]he calculus of interest and duty, not prejudice, was the source of Locke's view.” Letter Concerning Toleration, supra note 48, at 8.

62. Locke was hardly alone among his contemporaries in taking this position. Marshall notes that “[i]n early modern Europe atheists were generally held to be intolerable,” and that “t[]he advocates of religious toleration in the 1680s who discussed atheists, including Aubert, Locke, and Bayle, explicitly denied toleration to ‘atheists’.” Marshall, supra note 49, at 694, 695. However, Marshall further notes that Bayle “seems to have wanted at the least to provide toleration for atheists who held atheistic views in private but did not proselytize on behalf of their beliefs.” Id. at 698; see also Tully, in Letter Concerning Toleration, supra note 48, at 8 (“An atheist lacks the motivation to act socially and thus could not be tolerated according to almost everyone in the seventeenth century except Pierre Bayle.”).

63. Letter Concerning Toleration, supra note 48, at 51.

64. Id.

65. Id. at 46.

66. W. at 48.

67. Id. at 42.

68. McConnell, supra note 1, at 1435.

69. Martha Nussbaum identifies separation as one of the six fundamental normative principles related to religious liberty that “are amply recognized in our constitutional tradition and in the philosophical works related to it.” Nussbaum, supra note 1, at 22.

70. As noted above, Locke's position with respect to Roman Catholics may well have been influenced by political-as opposed to simply religious-considerations. See supra note 61.

71. Indeed, as noted above, Aquinas's discussion of conscience is much more focused on issues of moral judgment than on issues of conflict between civil and religious authority; he does not share Locke's primary goal of “distinguish[ing] exactly the Business of Civil Government from that of Religion, and [of] settling] the just Bounds that lie between the one and the other.” See supra notes 49-50 and accompanying text.

72. See supra notes 40-43 and accompanying text.

73. Eric D'Arcy makes the case along the following lines. First, it can be argued that each person has a particular end–namely, to achieve human flourishing through the harmonious fulfillment of his or her human potentialities. Second, it can be argued that harmonious fulfillment of one's potentialities requires freedom to make and act on moral judgments—i.e., freedom to exercise one's conscience. Third, it can be argued that since individuals do not exist to serve the ends of the state, but rather the state exists to serve the ends of individuals, then individuals have the moral right to demand from the state whatever is necessary to accomplish their ends. Individuals therefore have the right to demand that the state recognize the right to freedom of conscience. See D'Arcy, supra note 23, at 190-237. But cf. White, supra note 21, at 1080 (“[A] dictate of conscience is a private, concrete judgment of practical reason, while a positive law is public, general judgment of practical reason. In the political sphere, the latter controls the former except in those cases in which … the law, or its legislator, elects to remain silent.”).

74. Feldman, Intellectual Origins, supra note 1, at 373.

75. Id. at 378. Feldman defends his position against the argument that there were actually “several competing strands of thought about church-state relations that form[ed] the background of the religion clauses”-an argument that Feldman contends “has done a disservice to clear thinking about the emergence of the Establishment Clause” by obscuring shared understandings about the primacy of conscience. Id. at 372, 373. For a recent articulation of the “competing strands” argument, see Witte, John Jr., The Essential Rights and Liberties of Religion in the American Constitutional Experiment, 71 Notre Dame L. Rev. 371 (1996)Google Scholar.

76. Feldman, Intellectual Origins, supra note 1, at 374.

77. Id. at 379.

78. McConnell, supra note 1, at 1431.

79. Id.; see also Reyes, Justice Souter's Religion Clause Jurisprudence, supra note 15, at 317.

80. See McConnell, supra note 1, at 1443-44.

81. See Feldman, Intellectual Origins, supra note 1, at 381; McConnell, supra note 1, at 1455-61; McConnell, Freedom From Persecution, supra note 3, at 830-32.

82. McConnell, supra note 1, at 1456-57.

83. Id. at 1456 (quoting N.Y. Const, of 1777, art. XXXVIII).

84. McConnell, Freedom From Persecution, supra note 3, at 831.

85. Feldman, Intellectual Origins, supra note 1, at 398; see also Reyes, Justice Souter's Religion Clause Jurisprudence, supra note 15, at 315.

86. James Madison, Memorial and Remonstrance Against Religious Assessments, ¶ 4, http://religiousfreedom.lib.virginia.edu/sacred/madison_m&r_1785.html.

87. Feldman, Intellectual Origins, supra note 1, at 401-02.

88. Id. at 402 (citing 1 Annals of Cong. 451 (Joseph Gales ed. 1789)).

89. Id. at 403 (citing Journal of the First Session of the Senate of the United States, Aug. 1789, reprinted in 1 Documentary History of the First Federal Congress of the United States of America 104, 136 (Linda Grant DePauw ed., Johns Hopkins Univ. Press ( 1972)).

90. Id. (citing Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 207 (Oxford Univ. Press 1986)).

91. Id.

92. U.S. Const, amend. I.

93. Feldman, Intellectual Origins, supra note 1, at 403.

94. Id. at 404.

95. Id.; see also Reyes, The Fading Free Exercise Clause, supra note 15, at 743-44.

96. McConnell, supra note 1, at 1488.

97. Id. at 1489-90.

98. McConnell, Freedom From Persecution, supra note 3, at 846.

99. McConnell, supra note 1, at 1491-93.

100. Id. at 1496.

101. See id. at 1415, 1511-12. Philip Hamburger draws the opposite conclusion, arguing that, “[i]n fact, late eighteenth-century Americans tended to assume that the Free Exercise Clause did not provide a constitutional right of religious exemption from civil laws.” Hamburger, Philip, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915, 916 (1992)Google Scholar. Martha Nussbaum assays both arguments, and while she acknowledges that neither carries the day completely, she finds that McConnell's position is defensible historically and preferable normatively:

McConnell has shown that a widespread understanding of the ideas of liberty of conscience and the free exercise of religion involved the idea of accommodation. … Whether accommodations are implicit in the constitutional language is less clear, and Hamburger is correct in suggesting that uncertainty remains on that question. … On the other hand, the absence of an open-and-shut case for original textual meaning does not entail that our constitutional language is not best read in hindsight-given our long experience with majority law and minority disability-as entailing such a right.

Nussbaum, supra note 1, at 125-26.

102. Reynolds v. U.S., 98 U.S. 145 (1878); see also Michael McConnell, W., The Supreme Court's Earliest Church-State Cases: Windows on Religious-Cultural-Political Conflict in the Early Republic, 37 Tulsa L. Rev. 7, 7 (2001)Google Scholar (noting that the “Court's first decision under the Free Exercise Clause did not come until 1879, almost a century after the adoption of the First Amendment”).

103. Reynolds, 98 U.S. at 164.

104. 321 U.S. 158 (1944) (rejecting challenge to state child labor laws as applied to Jehovah's Witness who permitted child to distribute religious literature on the street).

105. Mat 166.

106. 366 U.S. 599 (1961) (rejecting challenge to state Sunday closing laws brought by members of Orthodox Jewish faith).

107. Id. at 603.

108. See supra note 66.

109. 374 U.S. 398 (1963) (applying heightened standard to strike down the application of a law that would have required a Seventh-Day Adventist to agree to work on Saturdays in order to be eligible for unemployment benefits).

110. 406 U.S. 205 (1972).

111. Id. at215.

112. Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 38 (1989) (Scalia, J., dissenting) (emphasis in original); see also Laycock, supra note 4, at 3 (quoting same).

113. Emp't Div. v. Smith, 494 U.S. 872, 878-79 (1990). The contrasting language of Bullock and Smith is highlighted and discussed in greater detail in Laycock, supra note 4.

114. For recent commentary, see generally Symposium, Twenty Years After Employment Division v. Smith: Assessing the Twentieth Century's Landmark Case on the Free Exercise of Religion and How It Changed History, 32 Cardozo L. Rev. 1655 (2011)Google Scholar; Reyes, The Fading Free Exercise Clause, supra note 15.

115. The Congressional measure was known as the Religious Freedom Restoration Act of 1993 (“RFRA”), and was struck down as applied to the states by the Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1997).

116. Smith, 494 U.S. at 878-79; see also Laycock, supra note 4, at 8-9 (identifying and discussing Court's new standard).

117. The Smith decision did not overturn the decisions in Sherbert or Yoder, but did effectively limit their reach by characterizing them as “hybrid” cases that involved “not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech … or the rights of parents … to direct the education of their children.” See 494 U.S. at 881-82.

118. Id. at 879.

119. Frazee v. Illinois Dep't Emp't Sec, 489 U.S. 829, 833 (1989).

120. See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). In Hialeah, the Court invalidated city ordinances that prohibited the sacrificing of animals or the slaughter of animals outside of certain zoned areas. Despite the fact that ordinances were facially neutral, the Court found that the object of the ordinances was to suppress the sacrificial rites of the Santeria religion.

121. See generally Tushnet, Mark, The Redundant Free Exercise Clause?, 33 Loy. U. Chi. L.J. 71, 72 (2001)Google Scholar (“Much religious activity is speech, pure and simple, and therefore protected by the Free Speech Clause. … Further, much religious activity, while not conducted in words, may fairly be described as symbolic speech, triggering free speech protection.”).

122. U.S. v. O'Brien, 391 U.S. 367, 377 (1968) (applying this standard in upholding law prohibiting destruction of draft cards).

123. See Texas v. Johnson, 491 U.S. 397 (1989). In Johnson, however, the Court concluded that the law at issue was aimed at suppressing a particular message and so was not a truly neutral, generally applicable law.

124. Laycock, supra note 4, at 21.

125. 505 U.S. 833, 852 (1992).

126. Id. at 916; see also Smith, supra note 4, at 914 (arguing "that Stevens is the Justice who in recent times has exhibited the greatest solicitude for conscience—except, that is, when conscience is directly tied to religious belief”).

127. 42U.S.C. §2000bb-1.

128. 42 U.S.C. § 2000bb.

129. See City of Boerne v. Flores, 521 U.S. 507 (1997).

130. 546 U.S. 418(2006).

131. Mat439.

132. 42 U.S.C. §2000cc-1.

133. RLUIPA was more narrowly tailored than RFRA and has been upheld in cases brought against state prison officials. See Cutter v. Wilkinson, 544 U.S. 709, 714-17 (2005). In addition to making the compelling interest test applicable to claims brought by prisoners, RLUIPA also makes the test applicable to challenges against certain land use regulations brought by religious individuals or institutions. See 42 U.S.C. § 2000cc.

134. See Laycock, Douglas, Theology Scholarships, The Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty, 118 Harv. L. Rev. 155, 212 (2004)CrossRefGoogle Scholar (noting that through statutory law and state constitutional interpretation, “more than half the states appear to have adopted some version of the Sherbert-Yoder test”).

135. 398 U.S. 333 (1970).

136. Id. at 336 (quoting 50 U.S.C. App. § 456(j) (1967)).

137. Id. at 341.

138. Id. at 340 (citing U.S. v. Seeger, 380 U.S. 163 (1965)).

139. Id. at 344.

140. Id. at 356, 358. For further discussion of the draft exemption cases, see generally Nussbaum, supra note 1, at 171-73; Greenawalt, supra note 4, at 49-67.

141. Callahan, Sidney, In Good Conscience: Reason and Emotion in Moral Decisionmaking 14 (Harper 1991)Google Scholar.

142. Little, David, Conscientious Individualism: A Christian Perspective on Ethical Pluralism, in The Many and the One: Religious and Secular Perspectives on Ethical Pluralism in the Modern World 229, 232 (Madsen, Richard & Strong, Tracy B. eds., Princeton Univ. Press 2003)Google Scholar.

143. Smith, The Tenuous Case for Conscience, supra note 5, at 328.

144. Eisgruber & Sager, The Vulnerability of Conscience, supra note 8, at 1248.

145. Eisgruber & Sager, Religious Freedom and The Constitution, supra note 8; see also Reyes, Justice Souter's Religion Clause Jurisprudence, supra note 15, at 318 (discussing Eisgruber's and Sager's theory); Reyes, The Fading Free Exercise Clause, supra note 15, at 739 (discussing same).

146. See Eisgruber & Sager, Religious Freedom and the Constitution, supra note 8, at 51-77.

147. Id. at 52.

148. Id.

149. Id. at 83.

150. Id. at 52-53.

151. For a preliminary version of the argument in favor of such a theory of conscientious and religious liberty, see Reyes, The Fading Free Exercise Clause, supra note 15, at 742-46.

152. See supra note 73 and accompanying text.

153. This is not to deny that the Thomistic theory is also narrower than the original understanding of the Religion Clauses is some ways. See supra notes 40-43 and accompanying text.

154. See Texas v. Johnson, 491 U.S. at 406 (flag burning is conduct “sufficiently imbued with elements of communication to implicate the First Amendment”).

155. See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 874 (1997) (transmission of sexual material that is “indecent but not obscene” over the internet is protected by the First Amendment).

156. Eisgruber and Sager similarly support their theory of equal liberty by analogizing to settled interpretations of other constitutional provisions. See Eisgruber, Christopher & Sager, Lawrence, Does it Matter What Religion Is?, 84 Notre Dame L. Rev. 807, 833 (2009)Google Scholar:

Finally, it is worth noting that our approach to the Religion Clauses has much in common with familiar features of free speech doctrine.… [M]any people would consider laws against flag-burning as paradigmatic First Amendment violations even though they involve neither speech nor press.… See also Reyes, The Fading Free Exercise Clause, supra note 15, at 744.

157. Roper v. Simmons, 543 U.S. 551, 609 n.1 (2005) (Scalia, J. dissenting) (internal citations omitted).

158. Id. at 561; see also Reyes, The Fading Free Exercise Clause, supra note 15, at 744.

159. Smith, supra note 4, at 917-26.

160. See id. at 918.

161. See id. at 922.

162. Madison, supra note 86, at ¶ 1; see also Smith, supra note 4, at 923.

163. McConnell, supra note 1, at 1496; see also Reyes, Justice Souter's Religion Clause Jurisprudence, supra note 15, at 318; Reyes, The Fading Free Exercise Clause, supra note 15, at 741.

164. Eisgruber & Sager, Religious Freedom and the Constitution, supra note 8, at 103.

165. See Smith, supra note 4, at 924-26. Smith gives the example of a Christian Scientist who believes that her duty to God forbids her to obtain medical help for her gravely ill child. The public authorities are likely to conclude that the Christian Scientist is simply wrong on this count—or to override her judgment in any case—and to order medical intervention.

166. See D'Arcy, supra note 23, at 210-17; Davies, supra note 22, at 227-32.

167. See D'Arcy, supra note 23, at 210-28.

168. Smith, supra note 4, at 932.

169. Id. at 929.

170. Id. at 935.

171. Id. at 936-37.

172. McConnell, supra note 1, at 1493; see also Reyes, The Fading Free Exercise Clause, supra note 15, at 744-46 (discussing arguments relating to breadth and administrability).

173. Greenawalt, supra note 4, at 67.

174. Smith, supra note 4, at 937.

175. Nussbaum, supra note 1, at 173; see also Reyes, supra note 20, at 8-9 (discussing Nussbaum on religious and non-religious conscience); Reyes, The Fading Free Exercise Clause, supra note 15, at 745 (discussing same).

176. Greenawalt, Kent, Diverse Perspectives and the Religion Clauses: An Examination of Justifications and Qualifying Beliefs, 74 Notre Dame L. Rev. 1433, 1473 (1999)Google Scholar [hereinafter Diverse Perspectives and the Religion Clauses]. See also Greenawalt, Kent, Fundamental Questions About the Religion Clauses: Reflections on Some Critiques, 47 San Diego L. Rev. 1131, 1146 (2011)Google Scholar (“I conclude that if particular kinds of individual non-religious claims of conscience are common and truly analogous to religious ones, and if they do not present added dangers of fraud, they should be treated comparably.”).

177. Greenawalt, Diverse Perspectives and the Religion Clauses, supra note 176, at 1472.

178. See, e.g., Thomas v. Review Bd., 450 U.S. 707 (1981) (upholding Free Exercise claim of individual whose religious objections were imprecisely articulated and not widely shared among other members of his religion). See also Reyes, The Fading Free Exercise Clause, supra note 15, at 745-46 (noting individualized nature of religious and secular beliefs); Nussbaum, supra note 1, at 170 (arguing that the scope of religious freedom “cannot in good conscience exclude many good-faith seekers whose account of meaning finds no communal home.”).

179. See Nussbaum, supra note 1, at 164; Reyes, The Fading Free Exercise Clause, supra note 15, at 745-46.

180. Greenawalt, supra note 4, at 227.

181. See Lupu, Ira C., The Trouble With Accommodation, 60 Geo. Wash. L. Rev. 743 (1992)Google Scholar; Greenawalt, supra note 4, at 214-16 (citing same); Eisgruber & Sager, Religious Freedom and the Constitution, supra note 8, at 42-44.

182. Ira C. Lupu, The Failure of RFRA, 20 U. Ark. Little Rock L.J. 575, 591 (1998); Greenawalt, supra note 4, at 227-28 (discussing same).

183. Greenawalt, supra note 4, at 215; see also McConnell, Free Exercise Revisionism, supra note 3, at 1127 (“In an area of law where a genuine ‘compelling interest’ test has been applied, intentional discrimination against a racial minority, no such interest has been discovered in almost half a century. Even the Justices committed to the doctrine of free exercise exemptions have in fact applied a far more relaxed standard to these cases, and they were correct to do so.”); Reyes, The Fading Free Exercise Clause, supra note 15, at 744-45 (noting arguments in favor of alternate standards of review).

184. Greenawalt, supra note 4, at 215.

185. McConnell, Free Exercise Revisionism, supra note 3, at 1128.

186. Greenawalt, supra note 4, at 227-28.

187. See text pp. 129-31 supra.

188. Nussbaum, supra note 1, at 165-66.

189. A recent study by the Program on Public Values at Trinity College finds the percentage of atheists in America to be approximately 12%. See Kosmin, Barry A. & Keysar, Ariyela, American Religious Identification Survey (ARIS) 2008: Summary Report (03. 2009), available at http://b27.cc.trincoll.edu/weblogs/AmericanReligionSurvey-ARIS/reports/ARlS_Report_2008.pdfGoogle Scholar.

190. Holy Trinity Church v. U.S., 143 U.S. 457, 470 (1892).

191. Id. 471.

192. Zorach v. Clauson, 343 U.S. 306, 313 (1952).

193. See Wallis, Jim, The Great Awakening: Reviving Faith And Politics in a Post-Religious Right America (HarperCollins 2008)Google Scholar.

194. See, e.g., Hitchens, Christopher, God is Not Great: How Religion Poisons Everything (Twelve Books 2007)Google Scholar; Dawkins, Richard, The God Delusion (Houghton Mifflin Harcouit 2006)Google Scholar; Harris, Sam, The End of Faith: Religion, Terror, and the Future of Reason (W.W. Norton & Co. 2004)Google Scholar.

195. Pew Research Center for the People & the Press, Trends in Political Values and Core Attitudes: 1987-2007: Political Landscape More Favorable to Democrats (Mar. 22, 2007), available at http://people-press.Org/reports/pdf/312.pdf.

196. Id.

197. Pew Research Center for the People and the Press, A Portrait of “Generation Next”: How Young People View Their Lives, Futures and Politics (Jan. 9, 2007), available at http://people-press.org/reports/pdf/300.pdf.

198. See Kosmin & Keysar, supra note 189; see also Conkle, Daniel O., Religious Truth, Pluralism, and Secularization: The Shaking Foundations of American Religious Liberty, 32 Cardozol. Rev. 1755, 1771–73 (2011) (discussing ARIS surveys)Google Scholar.