The Progressive Free Exercise Clause
When Justice Kennedy reigned supreme, advocates on both sides had to frame arguments to appear to the swing vote’s proclivities. Mix a little federalism, sprinkle some dignity, balance everything out, and BAM! You got a narrow, incoherent 5-4 opinion in your favor. Thankfully, those days are long gone. But now, there is a new game in town: the way to win is religious liberty. And progressives have turned to the free exercise clause.
Exhibit A is abortion. Before Dobbs even dropped, members of progressive faiths argued that the Free Exercise Clause, and state RFRAs require exemptions to abortion restrictions. Indeed, Marci Hamilton, who has long assailed RFRA, has learned to stop worrying and love the substantial burden test. If there is hope to persuade a conservative Court to protect abortion, it must be based on religious liberty.
Exhibit B is affirmative action. Yesterday, a group of Catholic univ
Article from Reason.com
