Document Type
Essay
Abstract
The unconstitutional conditions doctrine, which holds that “the government may not deny a benefit to a person because [that person] exercises a constitutional right,” has been applied inconsistently to matters within the Free Exercise Clause and without, including entitlements to unemployment benefits, licenses to proselyte, educational benefits, and the right to run for public office.
In this Essay, I use the way the Supreme Court has applied the unconstitutional conditions doctrine and other anomalous cases, history, and comparative law to reconstruct a more nuanced Free Exercise regime, one that in many ways more closely parallels U.S. protections for speech and assembly. I propose adopting an approach with an inner core of rights like proselytism and institutions’ right to religious autonomy that would garner more protection than rights less closely tied to the history and purpose of the Free Exercise Clause, such as religious rights in mass commercial settings. Moreover, these non-core rights, I argue, have in fact been less protected by the Supreme Court over time.
Recommended Citation
Elizabeth A. Clark,
A Non-Categorical Approach to Free Exercise Rights,
98
Notre Dame L. Rev. Reflection
124
(2023).
Available at:
https://scholarship.law.nd.edu/ndlr_online/vol98/iss4/1