Religion

Chapter 4 addresses the relationship between the Free Speech Clause and the Free Exercise Clause. It explains that although these provisions have a collaborative and synergistic history, beginning in the 1980s, the Free Speech Clause began to dominate the relationship. This important shift also affected, to some extent, interpretation of the First Amendment’s other religion clause, the Establishment Clause. The course of the free speech/free exercise relationship has also complicated several free speech doctrines, including those relating to public forum, content neutrality, and government speech. In addition to explaining these relational dynamics, the chapter advocates reinvigorating the Free Exercise Clause and reconnecting it with the Free Speech Clause in ways that recover the mutually facilitative relationship that once existed between the two. To illustrate, the chapter considers the respective functions of the Free Speech and Free Exercise Clauses as they relate to claims involving worship in public buildings and application of anti-discrimination laws to religious speakers.