Inazu on the Future of Religious Liberty

John D. Inazu (Washington University School of Law) has posted The Four Freedoms and the Future of Religious Liberty. The abstract follows.

The First Amendment’s rights of speech, press, religion, and assembly were once “interwoven” but distinct. Together, these freedoms advanced a pluralist skepticism of state orthodoxy that protected religious and other forms of liberty. The connections among these rights were evident at the Framing. They were also prominent during the 1930s and 1940s, when legal and political rhetoric recognized the “preferred position” of the “Four Freedoms.” We have lost sight of the Four Freedoms, supplanting their unified distinctiveness with an undifferentiated free speech framework driven by unsatisfying concepts like content neutrality and public forum analysis. It did not have to be this way, and it may not be too late to change course. This Article seeks to renew the pluralist emphasis once represented by the Four Freedoms.

The consequences of losing the pluralist vision are nowhere more evident than in the diminishing constitutional protections for religious groups, which are paradigmatic of the expressive, dissenting, and culture-forming groups of civil society. The Four Freedoms remind us that the boundaries of religious liberty have never rested solely in the First Amendment’s free exercise clause — religious liberty is best strengthened by ensuring robust protections of more general forms of liberty. But the normative effort to reclaim pluralism is not without costs, and it confronts powerful objections from anti-discrimination norms pertaining to race, gender, and sexual orientation — objections that cannot go unanswered.

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