What is religious freedom and how does the government guarantee it? These are the questions with which the United States Supreme Court has struggled throughout its history of attempting to interpret the two religion clauses of the First Amendment. No one seems happy with the results. To be fair to the Court, the words of the religion clauses are "at best opaque." The two clauses alternately prohibit the government from making a "law respecting an establishment of religion" and require that it not "prohibit[ ] the free exercise thereof." These two guarantees create an inevitable tension. Often, what one clause appears to require, the other prohibits. Without a clear and justifiable definition of religious freedom to guide interpretation, the Court's efforts to ensure the "preeminent goal of the First Amendment," government neutrality toward religion, will remain muddled.
Leslie G. Jacobs,
Adding Complexity to Confusion and Seeing the Light: Feminist Legal Insights and the Jurisprudence of the Religion Clauses,
Yale J.L. & Feminism
Available at: https://digitalcommons.law.yale.edu/yjlf/vol7/iss1/6