This chapter addresses symmetry’s implications for expressive freedom and religious liberty. Symmetry supports maintaining First Amendment law’s current focus on neutrality, notwithstanding emerging critiques that this approach lacks a strong historical foundation and unduly limits governmental regulation of offensive or dangerous ideas. At the same time, symmetric interpretation counsels against expanding the emerging “First Amendment Lochnerism” that threatens to extend constitutional protections for free expression into areas of economic and workplace regulation. A preference for symmetry also supports protecting religious groups, when possible, through more general protections for freedom of expressive association rather than through religion-specific constitutional doctrines. Although religious liberty may once have been a symmetric principle, today religion-specific protections risk placing constitutional law on one side of a fraught political divide over religion’s place in public life.

The eighteenth-century American founders believed that religion is special and deserves special constitutional protection, and that all peaceable faiths must be drawn into the constitutional process and protection. The founders introduced six constitutional principles for the protection of religious freedom – freedom of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and no federal establishment of religion. Since the 1940s, the US Supreme Court has upheld these religious freedom principles in more 170 cases, albeit unevenly of late. Moreover, in recent years religious freedom has come under sharp popular and academic attack, particularly as religious pathologies have come to light and religious freedom claims have clashed with sexual liberty claims. This chapter calls for a return to the first principles of religious freedom for all, at home and abroad, and for a new balance between religious freedom and other fundamental rights claims.

The Supreme Court has devoted nearly a third of its religious freedom cases to questions of religion and education. While government has the power to mandate basic education for all children, the Court has held, parents have the right to choose public, private, or homeschool education for their minor children, and government may now facilitate that choice through vouchers and tax breaks. While the First Amendment forbids most forms of religion in public schools, it protects most forms of religion in private schools. While the First Amendment forbids government from funding the core religious activities of private schools, it permits delivery of general governmental services, subsidies, scholarships, and tax breaks to public and private schools, teachers, and students alike. While the First Amendment forbids public-school teachers from offering religious instruction and expression in public-school classes and events, it permits public-school students to engage in private religious expression free from coercion. The amendment further requires that religious parties have equal access to public facilities, forums, and funds that are open to their nonreligious peers.

Christopher Tollefsen addresses institutions’ conscience rights. The Supreme Court’s description in Burwell v. Hobby Lobby of the rights of religious corporations affects that question. Institutional conscience attracts more skepticism than individual conscience. Skeptics wonder if an institution can have a conscience or make others respect it. Some medical institutions, looking to exercise conscience, ask if they should be forced to offer patients all services the law allows, including abortion, sterilization, physician-aided suicide and gender transition. If they don’t, others fear unwanted costs to clients and employees. Hobby Lobby involved a closely-held corporation’s refusal to obey a law mandating the purchase of health insurance covering drugs and devices that could destroy an embryo. In other institutional conscience cases, religion could be exercised by the group-subject’s doing or abstaining from acts, as a group and for religious reasons. As in Hobby Lobby, shielding group conscience claims, through corporations, vindicates humans’ rights to achieve certain ends: business efficiencies and the goods of working as a family and as co-believers.

Models the structure and content for the five following jurisdiction-specific chapters, pointing out that the separation of church and state was established as an explicit requirement and explains the context that gave rise to the free exercise and anti-establishment clauses. Explores the policy background, outlines the contemporary relevant legal framework, as governed by statutory and constitutional provisions, noting the extent to which the country is a signatory state to relevant international law. Considers the genesis of the state neutrality principle in the anti-establishment clause as confirmed by decisions of the US Supreme Court. It delves into the religion-related case law to identify the principle’s bearing on the rights to freedom of religion, of conscience, expression and association, examines how it relates to equality law. It focuses on the various tests successively applied by the USSC in its efforts to police the church–state boundary. It identifies and discuses some different academic views, including the Habermas argument that “the principle of separation of Church and State demands that the institution of the State operates with strict impartiality”.

Chapter 5 is the lynchpin chapter of this book. It offers contextual analysis of Locke’s most important tolerationist texts: the unpublished ‘Answer to Stillingfleet’ and the famed Epistola de Tolerantia. These works are shown to have moved beyond the idioms of civil religion, monarchical prerogative, and prudential indulgence. They offer a full-blown, rights-oriented defence of religious freedom and free exercise. They justify, potentially, political resistance in defence of these rights. They also offer, for the first time, a Lockean ecclesiology: a positive theory of churches, their autonomy, and ends. In argument and tone the ‘Answer’ and the Epistola dramatically break with Locke’s earlier writings on toleration. This break is presented, from one angle, as a break with the politique tolerationism of Restoration Hobbism. Locke is shown to have developed a ‘non-domination’ account of religious freedom and free exercise. His thinking was no longer subservient to the needs of the state, and indeed his theory of conscience freedom could undermine those interests. This chapter interprets Lockean toleration theory as an emancipation from the civil religion and prerogative-oriented logic of Hobbesian toleration.

The First Amendment’s religious clauses-“Congress shall make no law respecting an establishment of religion, or prohibiting the exercise thereof”-were adopted, somewhat begrudgingly, as an accommodation to the concerns of vocal religious minorities. Yet they also embodied a set of shared principles about church, state, and rights of conscience that had taken firm root in revolutionary America. Whereas “free exercise” had connoted limited grants to specific groups in particular areas, the term now referred to a broad freedom to assemble and preach. There was less consensus about what an establishment of religion entailed. However, the tide had clearly turned against exclusionary privileges. If the resulting constitutional language seemed somewhat ambiguous, it nonetheless clearly encompassed both an enlarged conception of religion and an unequivocal endorsement of liberty.

This chapter engages in a critical review of the main thesis of Christopher Eisgruber and Lawrence Sager in Religious Freedom and the Constitution (Harvard, 2007), that religion is not “a … category of human experience that demands special benefits and/or necessitates special restrictions” or any “special immunity for religiously motivated conduct.” Against this position, this chapter argues that natural religion of the form manifested in the New York Regents’ prayer outlawed by the U.S. Supreme Court in Engel v. Vitale (1962) is not to be put on the same constitutional level as (or below) other human passionate interests or even conscience. The paper considers the Indian and the European Convention provisions on religious liberty.