Abstract
A. The Key Choice of Rules: Two Competing Approaches to Freedom of Religious Practice Most of the contentious constitutional questions concerning government and religion in the United States since World War II have involved the "no establishment" provision of the First Amendment to our Constitution 1 - the provision that limits state support for religious practices, such as official prayers in state schools, direct government grants to churches or religious schools, and so forth. But the 1990s saw a major dispute over a different question: the scope of the right of private citizens to be free from governmental restrictions on their religious practices. The chief (though not the only) provision in question here is the First Amendment's Free Exercise Clause, which states that "Congress shall make no law ... prohibiting the free exercise [of religion]." 2 The primary constitutional dispute has been between two approaches to protecting the freedom to engage in religious practices. Under the narrow approach, religious practice and activity should primarily be protected under legal rights available also to individuals and organizations - primarily freedom of expression and association - and the Free Exercise Clause prevents only discrimination against religious activity. Under the broad approach, freedom of religious practice should be a distinctive concern of the law - under the Free Exercise Clause or other provisions - regardless of how the law treats nonreligious viewpoints or other organizations. The Supreme Court opened the battle in 1990 by adopting the narrow approach in ...