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[...]The close relationship between the free exercise of religion and the freedom of speech points to the sensible assumption that they should receive similar interpretation when dealing with parallel types of problems, or at least that differences in interpretation should be carefully justified.
With this premise, this Article compares freedom of speech and free exercise jurisprudence in various parallel applications, with the suggestion of harmonizing them more closely. While other commentators have compared freedom of speech and free exercise case law with a narrower focus (most commonly, focusing on the incidental burdens issue presented in [Employment Division v. Smith]), I consider here multiple ways in which free exercise and free speech standards of protection differ, or where some have argued that they differ. These include the treatment of incidental burdens, underinclusive regulations, regulations that allow individualized exemptions, freedom of association, regulations that compel behavior, and conditions on public employment. In addition, I consider the overlapping protection these freedoms provide for religious expression, and what the Court’s apparent preference for using speech jurisprudence here signifies.
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William & Mary Bill of Rights Journal Volume 32 (2023-2024) Issue 3 Article 3 3-2024 Harmonizing Freedom of Speech and Free Exercise of Religion John Fee Follow this and additional works at: https://scholarship.law.wm.edu/wmborj  Part of the Constitutional Law Commons, and the First Amendment Commons Repository Citation John Fee, Harmonizing Freedom of Speech and Free Exercise of Religion, 32 Wm. & Mary Bill Rts. J. 677 (2024), https://scholarship.law.wm.edu/wmborj/vol32/iss3/3 Copyright c 2024 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj HARMONIZING FREEDOM OF SPEECH ANDFREE EXERCISE OF RELIGIONJohn Fee*INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 677I. SPEECH AND RELIGIOUS EXERCISE AS COMPLIMENTARY RIGHTS . . . . . . . . 682II. DOCTRINAL COMPARISON OF SPEECH AND FREE EXERCISE . . . . . . . . . . . . 686A. Religious Expression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 687B. Generally Applicable Law and Incidental Burdens . . . . . . . . . . . . . . . 691C. Regulations That Lack General Applicability . . . . . . . . . . . . . . . . . . . 697D. Rights of Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702E. Public Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 708F. Compelled Behavior. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 711CONCLUSION: POSITIVE PLURALISM AND CALIBRATED JUDICIAL SCRUTINY . . . . 714INTRODUCTIONFor the past several decades, judges, legislators, and commentators have dis-puted the core meaning of the Free Exercise Clause, leaving religious freedom in astate of uncertainty. A focal point of this dispute has been the Supreme Court’s 1990decision in Employment Division v. Smith,1 which held that the Free Exercise Clausedoes not require the government to exempt religious conduct from otherwise validregulations. It prohibits governmental discrimination against religion; not incidentalburdens of general and neutral laws.2 Smith overruled the standard associated withSherbert v. Verner3 and Wisconsin v. Yoder4 that any application of a law thatsubstantially burdens religious freedom must be narrowly tailored to serve a compel-ling governmental interest.5 In doing so, Smith triggered widespread alarm, prompt-ing Congress and many states to respond with legislation aimed at restoring the* Professor, Brigham Young University Law School. Many thanks to my colleague, FredGedicks, who has been a valuable discussion partner and has commented on drafts through-out the development of project. Also, many thanks to Rick Garnett, Andy Koppelman, NettaBarak-Corren, Nelson Tebbe, and participants at the Law and Religion Roundtable hostedby the University of Virginia Law School for their valuable comments on earlier drafts.Thank you to Elyse Slabaugh for her valuable research assistance.1 See generally 494 U.S. 872 (1990).2 Id. at 879 (“[T]he right of free exercise does not relieve an individual of the obligationto comply with a ‘valid and neutral law of general applicability on the ground that the lawproscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”).3 374 U.S. 398 (1963).4 406 U.S. 205 (1972).5 See Smith, 494 U.S. at 882–90.677678 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677Sherbert/Yoder strict scrutiny standard6 to various spheres of regulation,7 causingmore constitutional litigation8 and a patchwork of religious freedoms standardsacross the states.9 Meanwhile, some Supreme Court Justices have continued to callfor reconsideration of Smith as new problems have emerged.10Now, a majority of the Supreme Court seems poised to complete the comebackand overrule Smith. In Fulton v. Philadelphia,11 Justices Alito, Gorsuch, and Thomasrecently argued for the wholesale overruling of Smith and restoration of Sherbert,12while Justices Barrett and Kavanaugh indicated dissatisfaction with the Smith testbut found it unnecessary to decide yet whether to overrule Smith.13Justice Barrett wisely advised caution, recognizing that there are many interme-diate possibilities between holding that the Free Exercise Clause offers nothing morethan protection from discrimination (a position she attributes to Smith)14 and requir-ing strict scrutiny whenever a regulation burdens religion.15 In pondering thequestion, what should replace Smith? Justice Barrett instructively suggested that theCourt could take guidance from other areas of First Amendment jurisprudencewhere the Court has taken a “more nuanced” approach between the extremespresented by Smith and Sherbert.166 For simplicity I will refer to this as the Sherbert standard in this Article.7 E.g., Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb to bb-4 (1994)(applicable in its present version to federal law); Religious Land Use and InstitutionalizedPerson’s Act, 42 U.S.C. § 2000cc-1 (2006) (applicable to state and local land use regulation).8 E.g., City of Boerne v. Flores, 521 U.S. 507, 516–29 (1997) (holding that Congresslacks the power under the Fourteenth Amendment to impose RFRA’s obligations on the stateson the basis of a disagreement with the Court’s interpretation of the Free Exercise Clause).9 Twenty-one states have adopted state RFRAs; whereas ten states have no state RFRAbut require strict scrutiny under the state constitution; and nineteen states do not have stateRFRAs and require either intermediate scrutiny or no scrutiny. EUGENE VOLOKH, THE FIRSTAMENDMENT AND RELATED STATUTES 963 (6th ed. 2016).10 Justice Gorsuch has noted that “Smith has been criticized since the day it was decided.No fewer than ten Justices—including six sitting Justices—have questioned its fidelity to theConstitution.” Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1931 (2021) (Gorsuch, J.,concurring).11 See generally id. (majority opinion).12 Id. at 1883–926 (Alito, J., concurring) (joined by Justices Thomas and Gorsuch).13 Id. at 1882–83 (Barrett, J., concurring) (joined by Justice Kavanaugh). Justice Breyeralso joined much of Justice Barrett’s concurrence but not the paragraph expressing skep-ticism of Smith. Id. at 1882 (Barrett, J., concurring) (joined by Justice Kavanaugh and withwhom Justice Breyer joined as to all but the first paragraph).14 Id. This is an oversimplification of Smith’s implications, particularly if one considerspost-Smith case law that has supplemented it. The exceptions to Smith, while initially thoughtto be minor, have grown to become significant tools for protecting religious freedom againstfacially neutral systems of regulation and incentivizing government to leave ample space forreligious exercise. See infra Sections II.C–D.15 Fulton, 141 S. Ct. at 1882–83.16 Id. at 1883.2024] HARMONIZING SPEECH AND RELIGION 679An obvious candidate for this comparison is the Speech Clause. Freedom ofspeech is the most developed and multifaceted area of First Amendment jurispru-dence. In addition, it raises parallel problems and features that are at the core of theSmith/Sherbert debate. Among these is the question of how to interpret the SpeechClause to protect a meaningful range of expressive freedom beyond merely requir-ing government to refrain from speech discrimination.17 To the extent the SpeechClause protects positive liberty, how should courts reconcile this norm with compet-ing goals of law and order, and translate the balance into concrete rules or thresholdrequirements for strict scrutiny or intermediate scrutiny?In addition, the Speech and Free Exercise Clauses share a related purpose rootedin the libertarian idea that individuals have the capacity and natural right to think forthemselves on such matters as happiness, truth, right and wrong, our relationship tothe Divine, social welfare, and public policy.18 These Clauses protect not only anindividual’s freedom to hold opinions that differ from the mainstream, but also toact on those views and seek to influence others.19 The close relationship between thefree exercise of religion and the freedom of speech points to the sensible assumptionthat they should receive similar interpretation when dealing with parallel types ofproblems, or at least that differences in interpretation should be carefully justified.With this premise, this Article compares freedom of speech and free exercisejurisprudence in various parallel applications, with the suggestion of harmonizingthem more closely. While other commentators have compared freedom of speechand free exercise case law with a narrower focus (most commonly, focusing on theincidental burdens issue presented in Smith),20 I consider here multiple ways in whichfree exercise and free speech standards of protection differ, or where some have ar-gued that they differ. These include the treatment of incidental burdens, underinclusive17 See generally John Fee, Speech Discrimination, 85 B.U. L. REV. 1103 (2005) [here-inafter Fee, Speech Discrimination] (discussing how the First Amendment principle dis-favoring content-based regulation serves indirectly to promote a substantive expressivefreedom, rather than indicate a guiding norm of government viewpoint neutrality).18 See Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 HARV. L. REV.1175, 1197–98 (1996).19 David A. Bogen, Generally Applicable Laws and the First Amendment, 26 SW. U. L.REV. 201, 245–47 (1997).20 Commentators who have argued for a unified treatment of speech and free exerciseprotection against incidental regulatory burdens include: Thomas R. McCoy, A CoherentMethodology for First Amendment Speech and Religion Clauses, 48 VAND. L. REV. 1335,1364–74 (1995) (arguing that intermediate scrutiny standard based on speech jurisprudenceshould apply to inadvertent burdens to speech or religion); Dorf, supra note 18, at 1178–79(arguing that heightened scrutiny should apply to substantial regulatory burdens to speech,religion and other fundamental rights); Bogen, supra note 19, at 253–58 (arguing that theO’Brien test should apply to both speech and free exercise of religion). But see Dan T.Coenen, Free Speech and Generally Applicable Laws: A New Doctrinal Synthesis, 103 IOWAL. REV. 435, 464–68 (2018) (arguing that the differing dynamics of the Free Exercise andSpeech Clauses justify differing treatment).680 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677regulations, regulations that allow individualized exemptions, freedom of associa-tion, regulations that compel behavior, and conditions on public employment. Inaddition, I consider the overlapping protection these freedoms provide for religiousexpression, and what the Court’s apparent preference for using speech jurisprudencehere signifies.In arguing that free speech and free exercise jurisprudence should be moreclosely aligned in these respects, I am not claiming that they lack distinctive featuresand applications. Whereas some have argued that we should understand the freeexercise of religion as largely or wholly subsumed within the freedom of speech21(similar to the freedom of the press), in my view, this does not give adequate weightto the text of the First Amendment or to the historical reasons for protecting the freeexercise of religion independently.22 While the Free Exercise and Speech Clausesoverlap in their spheres of protection, the Court has correctly interpreted them asindependent rights that protect different sets of behavior.Comparing judicial treatment of these freedoms may potentially benefit bothlines of jurisprudence. While it is plausible to use the freedom of speech to informfree exercise jurisprudence, we should also recognize that freedom of speech juris-prudence remains puzzling, ambiguous, and contested in many ways, both as togeneral theory and specific doctrines. This Article is as much about how free speechjurisprudence may improve by adapting to free exercise jurisprudence as the reverse.Using free exercise jurisprudence to inform freedom of speech is particularlypromising in light of post-Smith free exercise developments. Smith initially causedwidespread alarm about the state of religious freedom by suggesting that the FreeExercise Clause is nothing more than a protection from religious discrimination.23But since Smith, the Court has regularly found ways to offer significant protectionfor religion in cases that have not involved facial or proven religious discrimination.These include by interpreting the “generally applicable” requirement of Smith rigor-ously, making it a test of underinclusiveness;24 interpreting the “individualizedexemptions” exception to Smith expansively;25 and recognizing another significant21 Mark Tushnet, The Redundant Free Exercise Clause?, 33 LOY. L.J. 71, 71–84 (2001)(arguing that the Free Exercise Clause offers little protection beyond what the Speech Clausealready provides); see also Christopher L. Eisgruber & Lawrence G. Sager, Does It MatterWhat Religion Is?, 84 NOTRE DAME L. REV. 807, 832–35 (2009) (arguing that the freedomof religion, properly understood, is an aspect of a wider human freedom that does not requiredefining religion as a distinct activity).22 See Michael W. McConnell, The Problem of Singling Out Religion, 50 DEPAUL L.REV. 1, 12–16 (2000) (discussing various reasons the framers sought to protect the freedomof religion independently).23 Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1882–83 (2021) (Barrett, J., concurring).24 See, e.g., Lukumi Babalu Aye, Inc. v. Hialieah, 508 U.S. 520, 542–46 (1993) (strikingdown three facially neutral city ordinances that outlawed animal sacrifices; citing Smith, theCourt held that the ordinances were underinclusive because they prohibited religious conductwhile allowing comparable secular conduct).25 See, e.g., Fulton, 141 S. Ct. at 1879 (“The creation of a formal mechanism for granting2024] HARMONIZING SPEECH AND RELIGION 681component of religious freedom that Smith did not mention—the right to chooseone’s religious teachers and ministers—as categorically protected.26 These emergingdoctrines usefully protect substantive religious liberty where it may reasonably beaccommodated, without requiring courts to scrutinize potentially any regulationbecause it conflicts with someone’s religion.27 Yet they do not have obvious ana-logues in free speech law, and one wonders why not? As Michael McConnell hassuggested, the religion clauses may serve as a model for understanding and enforc-ing other constitutional rights.28Part I develops the premise of this Article, that the Free Exercise Clause and theSpeech Clause are related, complementary provisions of the First Amendment. Therights of free exercise and speech arise from a common source: the individual’scapacity as a free agent in the use of one’s mind and the practice of one’s opinions.As pillars of American liberalism, they work in tandem to protect values rooted inconscience, the search for truth, pluralism, and participation. Because of their closerelationship, and the common sorts of judicial questions they invoke, we shouldharmonize free exercise and speech methodologies where possible.In Part II, the heart of this Article, I discuss various areas of application ascandidates for harmonization. This includes the constitutional treatment of religiousspeech, incidental burdens, regulations that lack general applicability, and the rightsof organizations to choose their representatives, compelled behavior, and publicemployment. The comparison reveals that the constitutional landscape has changedsignificantly since Smith, and the common assumption that the law treats religiousfreedom significantly less favorably than speech is no longer accurate. The Court’spost-Smith free exercise jurisprudence, as well as new rulings on speech, havebrought the enforcement of these rights closer in some ways, but have also creatednew differences. And in some respects, such developments have made the FirstAmendment more protective of free exercise than it is of speech. While each ofthese points of comparison invites further analysis, I offer tentative recommenda-tions for how speech and free exercise protections may be improved in these areasin relation to each other.In the Conclusion, I draw some general conclusions and offer a framework forharmonizing the two constitutional clauses. This framework is based on the normsof positive pluralism and selective judicial scrutiny. The first norm includes the ideathat government need not be—indeed, should not be—neutral to the value of speechexceptions renders a policy not generally applicable, regardless whether any exceptions havebeen given, because it ‘invite[s]’ the government to decide which reasons for not complyingwith the policy are worthy of solicitude . . . .”).26 See, e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171,190 (2012) (the Court distinguished Smith and affirmed that the First Amendment requiresa ministerial exception, even in instances involving “valid and neutral law[s] of generalapplicability.”).27 Fulton, 141 S. Ct. at 1877.28 McConnell, supra note 22, at 43.682 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677and religious exercise in society, but rather should promote and protect conditionsfor a wide variety of expressive behavior and religious behavior to flourish. Thesecond norm has to do with how courts protect religious and expressive pluralismwithout overstepping their role in relation to other branches of government.In both areas of jurisprudence, courts have developed useful threshold rules thatserve to identify suspicious regulations, which, in the words of Justice Roberts,“appear[] to reflect not expertise or discretion, but instead insufficient appreciationor consideration of the interests at stake,”29 and appropriately call for heightenedjudicial scrutiny. In examining the respective rules that courts have developed forthe protection of speech and religion, we see that each has some tools that the otherlacks and that could make sense to adopt.I. SPEECH AND RELIGIOUS EXERCISE AS COMPLIMENTARY RIGHTSIt is no accident that the freedom of speech and the free exercise of religionappear together in the First Amendment of the United States Constitution. The twoclauses protect what many early Americans considered natural individual rights inrelation to government.30 According to this view, the freedom of speech and the freeexercise of religion arise from the individual’s capacity as a free agent in the use ofone’s mind and practice of one’s opinions.31In his 1792 essay, Property, James Madison highlighted these as examples ofnatural rights, in which individuals have a property, and which government has aprimary duty to protect.32 According to Madison, whereas the term “property” in aparticular sense refers to one’s claims over the external things of the world inexclusion of others, “[i]n its larger and juster meaning, it embraces every thing towhich a man may attach a value and have a right; and which leaves to every one elsethe like advantage.”33 His leading examples were the freedom of speech and the freeexercise of religion: “In the latter sense, a man has a property in his opinions and thefree communication of them. He has a property of peculiar value in his religiousopinions, and in the profession and practice dictated by them.”34Madison’s thesis in Property is that “[g]overnment is instituted to protectproperty of every sort,”35 including especially these freedoms that are rooted in29 S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 717 (2021).30 See James Madison, For the National Gazette, 27 March 1792, in FOUNDERS ONLINE,NAT’L ARCHIVES, https://founders.archives.gov/documents/Madison/01-14-02-0238 [https://perma.cc/RX5B-G9XB].31 See id.32 Id.33 Id.34 Id. Madison follows these with “the safety and liberty of his person,” and “the free useof his faculties and free choice of the objects on which to employ them” as among the rightsin which all individuals have property. Id.35 Id.2024] HARMONIZING SPEECH AND RELIGION 683personhood.36 No matter how scrupulously a government protects the possessionsof individuals, sparing praise is owed to a government that “does not protect themin the enjoyment and communication of their opinions, in which they have an equal,and in the estimation of some, a more valuable property.”37 Likewise, a just govern-ment protects the religious freedom of individuals, for “[c]onscience is the mostsacred of all property; other property depending on part on positive law, the exerciseof that, being a natural and unalienable right.”38Madison’s pairing of speech and religious liberty makes sense in light of theirintertwined history during preceding centuries. During the Protestant Reformation,religious freedom was a widely disputed topic, as many sought the freedom toformulate their own religious beliefs and to worship God according to their ownconscience.39 However, as many scholars have noted, in seeking this freedom,religious leaders invoked a host of other rights.40 Among these was free speech.41Reformers and converts alike sought not just to have differing beliefs, but to expressthose differing beliefs.42 In fact, a phrase used by Martin Luther in his 1520Manifesto—that each person is “prophet, priest, and king”—was later used as apopular rally cry in favor of free speech, especially among English Calvinists.43Accordingly, some scholars have claimed that free speech during the Reformation“was treated primarily as an aspect of a wider issue, that of religious toleration.”44In the years following the Reformation, freedom of speech expanded to otherareas of society. Early iterations of the right to free speech in various foundingdocuments were primarily focused on formal political speech.45 For example, theEnglish Bill of Rights, enacted in 1689, established “that the Freedome of Speech36 Id.37 Id.38 Id.39 John Witte, Jr., Law, Religion, and Human Rights: A Historical Protestant Perspective,26 J. RELIGIOUS ETHICS 257, 258 (1998).40 Id. (“The Protestant Reformation was, in part, a human rights movement”); AnshumanA. Mondal, Articles of Faith: Freedom of Expression and Religious Freedom in Contem-porary Multiculture, 27 ISLAM & CHRISTIAN-MUSLIM RELS. 3, 5 (2016) (“[F]reedom ofspeech emerged out of the debates concerning religious toleration in the seventeenth andeighteenth centuries.”).41 Witte, supra note 39, at 260–61.42 Mondal, supra note 40, at 7 ([E]arly Protestants sought “not just to confess theirreligious beliefs in private without molestation . . . but also to profess them in public . . . .”).43 John Witte, Jr., Prophets, Priests, and Kings: John Milton and the Reformation ofRights and Liberties in England, 57 EMORY L.J. 1527, 1541 (2008).44 Joris van Eijnatten, In Praise of Moderate Enlightenment: A Taxonomy of Early ModernArguments in Favor of Freedom of Expression, in FREEDOM OF SPEECH: THE HISTORY OF ANIDEA 19, 20 (Elizabeth Powers ed., 2011). For an overview of how the Reformation in-fluenced liberalism in general, see John W. Shepard, Jr., The European Background ofAmerican Freedom, 50 J. CHURCH & STATE, 647, 654 (2008).45 Mondal, supra note 40, at 8–9.684 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677and Debates or Proceedings in Parlyament ought not to be impeached or questionedin any Court or Place out of Parlyament.”46During the American colonial period, arguments for an even wider freedom ofspeech developed as a natural exercise of liberty. Indeed, “[o]nce it was acknowl-edged that the offensiveness of religious beliefs did not justify suppression, itbecame easier to argue that the offensiveness of ideas did not make their expressionan ‘abuse’ of liberty.”47 Cato’s Letters was among the most influential publicationsarguing for a freedom of speech in the colonial period.48 Many of the essays ad-dressed the common source of free speech and religious freedom.49 In one essay,liberty was defined as “the Right of every Man to pursue the natural, reasonable, andreligious Dictates of his own Mind; to think what he will, and act as he thinks . . ..”50 It was argued, therefore, that freedom of speech was “the great [b]ulwark ofLiberty; they prosper and die together.”51As the American concept of the freedom of speech grew in the 18th century,concepts of religious liberty continued to develop as well, culminating in the FirstAmendment. Whereas a century earlier John Locke’s arguments in favor of religioustoleration were progressive by the standards of his time,52 for many Americans ofthe founding generation, Locke’s concept of “toleration” did not go far enough: theysought to recognize a natural right to religious freedom that does not depend onpositive law.53 Neither was the term “freedom of conscience” sufficient for some,as it potentially implied a mere right to hold one’s beliefs in private.54 After consid-ering earlier drafts for a Bill of Rights provision protecting religious toleration or46 An Act declaring the Rights and Liberties of the Subject and Settling the Successionof the Crown 1688, 1 W. & M., sess. 2, c. 2. Similarly, the Massachusetts Declaration ofRights (1780) stated: “The freedom of deliberation, speech and debate, in either house of thelegislature, is so essential to the rights of the people, that it cannot be the foundation of anyaccusation or prosecution, action or complaint, in any other court or place whatsoever.”Declaration of Rights para. XXI (Mass. 1780), reprinted in 1 B. SCHWARTZ, THE BILL OFRIGHTS: A DOCUMENTARY HISTORY 343 (1971).47 David Bogen, The Origins of Freedom of Speech and Press, 42 MD. L. REV. 429, 456(1983).48 See id. at 445.49 See id. at 446.50 2 JOHN TRENCHARD & THOMAS GORDON, CATO’S LETTERS; OR, ESSAYS ON LIBERTY,CIVIL AND RELIGIOUS, AND OTHER IMPORTANT SUBJECTS 248 (6th ed. London 1775).51 1 id. at 100.52 See Steven J. Heyman, The Light of Nature: John Locke, Natural Rights, and theOrigins of American Religious Liberty, 101 MARQ. L. REV. 705, 709–11 (2018); JOHNLOCKE, A LETTER CONCERNING TOLERATION (William Popple trans., London 1689).53 See Michael W. McConnell, The Origins and Historical Understanding of FreeExercise of Religion, 103 HARV. L. REV. 1409, 1431, 1443–44 (1990) (“The ways in whichAmerican advocates of religious freedom departed from Locke . . . are as significant as theways in which they followed him.”).54 See id. at 1449–55.2024] HARMONIZING SPEECH AND RELIGION 685freedom of conscience, Congress settled on the phrase “free exercise of religion” asit made clear that it covered a right to put one’s religious beliefs into practice.55The substitution of “free exercise of religion” for “freedom of conscience” mayhave influenced the placement of the freedom of speech in the First Amendment.Whereas an earlier draft of the Bill of Rights had placed the freedom of speech ina separate provision, the final Bill placed them adjacent in the First Amendment.56According to Anshuman Mondal, this made sense after the freedom of religion wasclarified as an active right to exercise one’s religious beliefs, which, without asecular counterpart, would seem incomplete or incongruous.57 The freedom ofspeech filled that void, as it too was based on the freedom to exercise one’s beliefs,even on secular subjects, in the mode of communicating them to others.58 This isconsistent with Madison’s treatment of speech and religious exercise as parallelrights in Property rooted in one’s capacity as an individual.59I do not wish to overstate the point, as one can also make distinctions in thehistorical development of these rights and the potential reasons for including themin the First Amendment. Free exercise of religion was a more developed conceptthan the freedom of speech in the late 18th century, and was closely connected to thedecision that government should make no establishment of religion.60 Madisonsuggested at times that religious freedom had “peculiar value,” because one’s obli-gations to God naturally precede one’s obligations to civil government.61 One couldalso point out that the freedom of speech has a differing and more direct role thanreligious freedom in politics, as republican government depends upon the participa-tion of enlightened, informed citizens in the formation of governmental policy.Nevertheless, the Framers did not provide a Speech Clause limited to protectingpolitical speech, nor suggest that the freedom of speech exists solely for facilitatingdemocratic government.62 Martin Redish has argued that the ultimate value of theSpeech Clause is better described as individual self-realization, which encompassesdemocratic participation and much more.63 Such an explanation resonates with the55 See id. at 1488–91.56 See id. at 1481–84.57 Mondal, supra note 40, at 10–11.58 See id.59 See also Bogen, supra note 47, at 456 (“[T]he stylistic innovation that led to thecoupling of free speech and religious freedom in a single amendment [leads] to a perceptionthat they are related.”).60 See id. at 454–55, 459–62.61 See Madison, supra note 30; see also JAMES MADISON, A Memorial and Remonstranceagainst Religious Assessments, in SELECTED WRITINGS OF JAMES MADISON 21, 25 (RalphKetcham ed., 2006).62 See Martin H. Redish, The Value of Free Speech, 130 U. PA. L. REV. 591, 596–611(1982) (arguing against a limited democratic process model for freedom of speech).63 Id. at 593, 625–45.686 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677original natural law understanding of the freedom of speech as beginning with theindividual and makes it a natural companion to religious freedom.64Consistent with this, Supreme Court decisions emphasized the connectionbetween the freedom of speech and the free exercise of religion. In Capitol SquareReview & Advisory Board v. Pinette, for example, the Court explained that “inAnglo-American history, at least, government suppression of speech has so com-monly been directed precisely at religious speech that a free-speech clause withoutreligion would be Hamlet without the prince.”65 In Lee v. Weisman, the Court notedthat “[t]he Free Exercise Clause embraces a freedom of conscience and worship thathas close parallels in the speech provisions of the First Amendment . . . .”66 Morerecently, in Kennedy v. Bremerton, the Court stated: “These Clauses [the FreeExercise and Free Speech Clauses] work in tandem. . . . That the First Amendmentdoubly protects religious speech is no accident. It is a natural outgrowth of theframers’ distrust of government attempts to regulate religion and suppress dissent.”67Accordingly, it is natural to treat the freedoms of speech and religious exerciseas companion rights. They arise from a strong conception of individuals as havingthe natural capability and prerogative to judge truth and error, right and wrong, andpursue happiness (within the bounds of respecting similar freedom for others)according to their own consciences. They are pillars of American liberalism.II. DOCTRINAL COMPARISON OF SPEECH AND FREE EXERCISEThe freedom of speech and free exercise of religion are not only related in pur-pose, but also in sharing various common challenges in translating their ideals intoconcrete rules and standards. In this Part, I compare various aspects of free exerciseand free speech jurisprudence under currently controlling constitutional law. Bothare patchworks of various standards, threshold rules, levels of scrutiny, and excep-tions. While in some ways the law treats these Clauses harmoniously,68 in otherways, the law for each diverges inexplicably.69 Moreover, the common assumptionthat the law treats free exercise as weaker than the freedom of speech is no longeraccurate. Since the Supreme Court’s decision in Employment Division v. Smith, thepicture has become more nuanced, even reversed in several important ways.To be clear, by questioning differences between speech and free exercise pro-tections, I am not referring to the fact that the Speech and Free Exercise Clauses64 See id.65 515 U.S. 753, 760 (1995).66 505 U.S. 577, 591 (1992).67 Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421 (2022); see also MADISON,supra note 61.68 See, e.g., Kennedy, 142 S. Ct. at 2421; Murdock v. Pennsylvania, 319 U.S. 105, 107–17 (1943).69 See, e.g., Widmar v. Vincent, 454 U.S. 263, 277 (1981); Pinette, 515 U.S. at 757, 760;Rosenburger v. Rector, 515 U.S. 819, 823, 837, 846 (1995).2024] HARMONIZING SPEECH AND RELIGION 687protect different, although overlapping, sets of interests and behavior. We maysuppose that some claims should prevail on free exercise grounds but not on speechgrounds and vice versa, as one should expect if these Clauses are not redundant.Rather, I focus here on questionable differences between judicial rules for the en-forcement of those respective spheres. I also consider the area where speech and freeexercise protection overlap, and are sometimes coterminous, but where some haveargued that the Court has preferred relying on the Speech Clause.70 The question offavoritism here is not about substantive differences between speech and free exerciseprotections, but rather about whether this preference symbolically indicates a pri-macy of speech over religion.For illustration, I make tentative suggestions in each of these areas for how freeexercise and free speech protections might be harmonized, but a complete explora-tion of these individual points requires further development. My primary importantpoint is that there is an opportunity for improvement or clarification of First Amend-ment jurisprudence in various ways by adjusting speech or religion protectionstoward one another and presuming their common method of enforcement.A. Religious ExpressionLet us first consider the Supreme Court’s treatment of the overlap between freeexercise and free speech protection. It has been common historically, and remainsso today, for First Amendment litigants to make speech and free exercise claims sideby side.71 This happens where the government seeks to regulate or punish behaviorthat, to the claimant at least, is both expressive and religious.72 The practice of com-bining speech and free exercise claims began in the early 20th century with theJehovah’s Witnesses cases and continues today.73The overlap represents a significant portion of both religious behavior and ofcontested expressive behavior. While not all religious behavior is necessarily ex-pressive, arguably most of it is. This includes not only such verbal acts as teaching,evangelizing, writing, distributing literature, reciting or singing phrases and organiz-ing to worship with others; it also includes various forms of nonverbal expression,including rituals, sacraments, gestures, dress, art and architecture and many other70 See Stephen M. Feldman, The Theory and Politics of First Amendment Protections:Why Does the Supreme Court Favor Free Expression Over Religious Freedom?, U. PA. J.CONST. L. 431, 447–48 (2006); TIMOTHY ZICK, THE DYNAMIC FREE SPEECH CLAUSE: FREESPEECH AND ITS RELATION TO OTHER CONSTITUTIONAL RIGHTS 109–17 (2018).71 See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 300 (1940); Murdock, 319 U.S. at107; Kennedy, 142 S. Ct. at 2419.72 See, e.g., Cantwell, 310 U.S. at 300–02; Murdock, 319 U.S. at 106–07; Kennedy, 142S. Ct. at 2415, 2419.73 See Cantwell, 310 U.S. at 300–02; Murdock, 319 U.S. at 106–07; Kennedy, 142 S. Ct.at 2415, 2419.688 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677potential forms.74 It is also a common tenet of religion to abstain from saying somethings (such as blasphemy or swearing allegiance to anyone other than God)75 orfrom making certain symbolic representations (“Thou shalt not make unto thee anygraven image . . . .”),76 which implicates speech doctrines concerning compelledspeech.It is also remarkable that many speech cases involve religious claimants, eventhough the Speech Clause protects a much wider sphere. The story of the Jehovah’sWitnesses’ significant influence on free speech developments of the 20th centuryis well known,77 and the pattern of religious claimants often appearing in importantspeech cases continues to this day, as indicated by the Supreme Court’s recent de-cisions in Kennedy v. Bremerton School District78 and Masterpiece Cakeshop, Ltd.v. Colorado Civil Rights Commission,79 and the Court’s recent decision in 303Creative LLC v. Elenis.80 Presumably the reason for this is that fervent religiousbelievers and communities often are cultural minorities and therefore find them-selves in conflict with majority-influenced regulations of speech; and the majority,whether due to purposeful discrimination or simple indifference to the outsider’speculiar religious interests, is unwilling to adjust.81In early First Amendment cases, the Supreme Court tended to treat the two rightstogether, even in unison. For example, in Cantwell v. Connecticut,82 the SupremeCourt struck down a licensing requirement for solicitors of religious or charitablecauses based on the freedom of speech and free exercise of religion without differ-entiating the two.83 Likewise, in Murdock v. Pennsylvania,84 the Court relied on bothspeech and free exercise to hold unconstitutional the State’s application of a licensingtax to door-to-door sales of religious literature. In doing so, the Court held that spread-ing one’s faith by selling religious literature is a protected form of religious exercise,as protected as worshiping in the churches, and “has the same claim as [other formsof religion] to the guarantees of freedom of speech and freedom of the press.”85 The74 See Daniel J. Hay, Baptizing O’Brien: Towards Intermediate Protection of ReligiouslyMotivated Expressive Conduct, 68 VAND. L. REV. 177, 179, 188, 200, 212–13 (2015).75 Exodus 20:3–7 (King James); Leviticus 24:16 (King James).76 Exodus 20:4 (King James).77 See Richard C. C. Kim, The Constitutional Legacy of the Jehovah’s Witnesses, 45 SW.SOC. SCI. Q. 125, 125 (1964); William Shepard McAninch, A Catalyst for the Evolution ofConstitutional Law: Jehovah’s Witnesses in the Supreme Court, 55 U. CIN. L. REV. 997,997–99 (1987).78 142 S. Ct. at 2415–16, 2419.79 584 U.S. 617, 621–25 (2018).80 See 600 U.S. 570, 580 (2023).81 See Kennedy, 142 S. Ct. at 2423–25.82 310 U.S. 296 (1940).83 Id. at 303, 307, 311.84 319 U.S. 105, 107–17 (1943).85 Id. at 109; accord Jamison v. Texas, 318 U.S. 413, 417 (1943).2024] HARMONIZING SPEECH AND RELIGION 689Court also discussed the limitations of free exercise and free speech together, im-plying that their limitations are structurally parallel.86Nevertheless, in other cases from the same period, and for decades thereafter,the Supreme Court began to treat the Speech Clause as the preferred grounds forprotecting religious and other interests where possible.87 Thus, in West Virginia v.Barnette,88 the Court relied on the Speech Clause to hold that Jehovah’s Witnessescould not be compelled to say the Pledge of Allegiance and salute the Americanflag, overruling its prior holding in Minersville School District v. Gobitis89 on thatpoint, but conspicuously did not overrule Gobitis’s holding that the compulsion wasvalid under the Free Exercise Clause.90 Perhaps most remarkably, the Court in casessuch as Widmar v. Vincent,91 Capitol Square Review and Advisory Board v. Pinette,92and Rosenburger v. Rector93 often relied on the Speech Clause alone to strike downregulations that were both content-based and religiously discriminatory, even thoughthe Court could just as easily relied upon the Free Exercise Clause alone or bothclauses together.More recently, in Kennedy v. Bremerton School District,94 the Court returnedto the Cantwell/Murdock approach of relying on both Clauses to protect religiousexpression, emphasizing “[t]hese Clauses work in tandem.”95 Whether this signalsa new trend remains to be seen.Why the apparent judicial preference (until recently) for relying on the SpeechClause rather than the Free Exercise Clause in cases where both kinds of discrimina-tion are clearly present? Stephen Feldman suggests that this represents a twentiethcentury shift in the Supreme Court’s political leanings from a Protestant-groundedform of republican pluralism to one of broader democratic pluralism.96 Whereasreligious free exercise was a natural pillar of the older republican framework, it did86 For example, the Court pointed to Chaplinsky v. New Hampshire, 316 U.S. 568, 574(1942), and Cox v. New Hampshire, 312 U.S. 569, 578 (1941), both speech cases in whichthe government prevailed, to assure that freedom of speech and religion are not unbounded.Murdock, 319 U.S. at 110.87 See Feldman, supra note 70, at 432.88 319 U.S. 624, 639, 642 (1943).89 310 U.S. 586, 587 (1940).90 The emphasis in Barnette on the Speech Clause seems justified on the basis that thecompulsion was undoubtedly content-based and communication-oriented, both in its gov-ernmental purpose and objectively, whereas it only incidentally implicated religion due tothe conflicting beliefs of the claimants. Nevertheless, some have taken Barnette to be anindication of an emerging general preference for the Speech Clause over the Free ExerciseClause. See Feldman, supra note 70, at 450–51; ZICK, supra note 70, at 110.91 454 U.S. 263, 277 (1981).92 515 U.S. 753, 760 (1995).93 515 U.S. 819, 837, 846 (1995).94 142 S. Ct. 2407, 2421 (2022).95 Id.96 Feldman, supra note 70, at 432.690 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677not comfortably fit within the emerging democratic pluralism framework that guidedthe Court in the middle- and later-twentieth century; instead freedom of speechbecame the paramount First Amendment freedom.97Feldman’s descriptive explanation is persuasive in some respects but may notadequately account for the Court’s occasional vigorous enforcement of free exercisein this period, particularly in Sherbert and Yoder. Moreover, there may be a morefree-exercise-friendly explanation for the Court’s reliance on the Speech Clausewhere possible to resolve cases involving religious speech: to keep both First Amend-ment protections harmonious and inclusive. Resolving cases involving religiouslycontent-based regulations under the Speech Clause seems justified by the value ofruling on more inclusive grounds where possible, thus avoiding any implicationsthat the First Amendment creates special privileges for religious speech. If courtswere to interpret the Free Exercise Clause as protecting religious speech independ-ently (and, therefore, potentially more favorably, as the Speech Clause protects non-religious speech), this would create a kind of content-based constitutional structureand bring the norms of two clauses into apparent conflict.98 By relying whereverpossible on the Speech Clause to confront content-based regulations of religiousspeech, the Court reduces the risk or appearance of pitting these freedoms againstone another.Nevertheless, the Court’s tendency to rely on the Speech Clause alone in caseswhere it might have relied upon both clauses in unison has given air to the belief thatthe Free Exercise Clause has become a subordinate freedom at best.99 If Feldman isright about twentieth century democratic pluralism leaving little role for religious free-dom, it is an unfortunate narrative, as it is possible to envision a Constitutional systemthat encourages various forms of pluralism of independent value, including religiouspluralism, toward the end of achieving individual fulfillment and social progress.100Tentative Recommendation: Kennedy’s approach to treating the Free Exerciseand Speech Clauses in tandem represents a positive development for the treatmentof religious expression. By more frequently relying upon both Clauses where theirprotections overlap, the Court avoids sending a message that the Free ExerciseClause is subordinate to the Speech Clause, or that it has wholly separate purposes.At the same time, by including the Speech Clause in the analysis, the Court makesclear that it is not creating special advantages for religious speech but enforcing anequivalent freedom for all.97 See id. at 433.98 This coincides with the plurality’s analysis in Texas Monthly v. Bullock, 489 U.S. 1,25 (1989), that government may not favor religious publications over non-religious publi-cations in sales taxes, even for the benign purpose of reducing governmental burdens onreligion.99 See Widmar v. Vincent, 454 U.S. 263, 277 (1981); Capitol Square Rev. & Advisory Bd.v. Pinette, 515 U.S. 753, 760 (1995); Rosenberger v. Rector, 515 U.S. 819, 837, 846 (1995).100 See Feldman, supra note 70, at 432–33.2024] HARMONIZING SPEECH AND RELIGION 691B. Generally Applicable Law and Incidental BurdensA commonly noticed difference between judicial protections of speech and freeexercise has to do with incidental burdens that arise from general laws of conduct.All agree that religious conduct and expressive conduct must remain bounded attimes by general regulations, but does the First Amendment require exceptions wherethe government can accommodate them?Employment Division v. Smith holds that, under the Free Exercise Clause, theanswer is no, provided that the regulation is generally applicable and religiouslyneutral.101 On the other hand, in United States v. O’Brien,102 the Supreme Courtprovided a more generous test for expressive exemptions that has not been over-ruled. Under O’Brien, where government seeks to prohibit or punish conduct thatis expressive, the government must show that its regulation (a) “furthers an impor-tant or substantial governmental interest”; (b) that the regulation is “unrelated to thesuppression of free expression”; and (c) “the incidental restriction on alleged FirstAmendment freedoms is no greater than is essential to the furtherance of thatinterest.”103The O’Brien test has been described as an intermediate scrutiny test, parallelingthe level of scrutiny that courts apply to content-neutral regulations of speech.104 Itis true that, in practice, courts usually defer to governmental interests while applyingthe test, as the Court did in O’Brien itself,105 so perhaps it is a soft form of interme-diate scrutiny.106 Nevertheless, some expressive actors have prevailed againstgeneral conduct laws in the lower courts under the O’Brien test.107 Moreover, theO’Brien test provides a negotiating point for those seeking exemptions from generallaws, and even the threat of litigation may nudge some governmental actors towards101 494 U.S. 872, 882, 890 (1990).102 See generally 391 U.S. 367 (1968).103 Id. at 377.104 Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 298 (1984) (explaining thatthe O’Brien test “in the last analysis is little, if any, different from the standard applied totime, place, or manner restrictions.”).105 391 U.S. at 376–77.106 See Dorf, supra note 18, at 1208 (noting that the Court has applied the O’Brien testwith deference to the government).107 E.g., Baribeau v. City of Minneapolis, 596 F.3d 465, 477–78 (8th Cir. 2010) (dressingas zombies to protest consumer culture was protected as expressive conduct); Hodgkins v.Peterson, 355 F.3d 1048, 1059–60, 1064 (7th Cir. 2004) (holding curfew law for minors failsthe O’Brien test); see also Aimee Green, Judge Clears Nude Bicyclist in Portland, THEOREGONIAN (Nov. 13, 2008, 12:46 AM), https://www.oregonlive.com/news/2008/11/judge_throws_out_charges_again.html [https://perma.cc/ZHS2-XHZU] (“A Multnomah Countyjudge has cleared a Northeast Portland nude bicyclist of criminal indecent exposure charges,saying cycling naked has become a ‘well-established tradition’ in Portland and understoodas a form of ‘symbolic protest.’”).692 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677accommodation of expression.108 The O’Brien test’s presence reminds governmentactors to remember the constitutional value of private expression and to accommo-date it where possible.109Even if the O’Brien test’s protectiveness for expressive conduct is modest, thereis no justification for lacking a parallel First Amendment standard that protects re-ligious conduct. Some may point out that a high percentage of religious conduct isin fact expressive, and thus is already protected under O’Brien,110 but this is notenough to solve the discrepancy. First, the Supreme Court requires conduct to be“inherently expressive” to merit O’Brien-level protection, which the Court hasinterpreted as limited to traditional forms of expression or such acts that would beunderstood as expressive without the benefit of words.111 Under such standards,some religious conduct, even that is intended to be expressive, may not qualify.112In any case, relying on O’Brien and the Speech Clause to protect religious conductmisses the point that the Free Exercise Clause protects a sphere of behavior thatneed not be communicative to any other person, but can be wholly private.Potential differences in the Speech and Free Exercise Clauses’ purposes do notjustify elevating expressive conduct above religious conduct in relation to incidentalburdens. First, let’s suppose that O’Brien rests on the idea that the freedom of speechprotects individual self-fulfillment through expression.113 There is no doubt thatcreative and symbolic expressive action, in many forms, can be both satisfying andedifying to the individual actor, as well as to those who observe. Symbolic behaviorcan demonstrate love, express anger, and evoke many other emotions. These effects,108 See John Fee, The Freedom of Speech-Conduct, 109 KY. L.J. 81, 94–95 (2021)[hereinafter Fee, Speech-Conduct].109 Even when government actors refuse to give exemptions for expressive conduct, theO’Brien test may lead officials to show greater respect to freedom of speech claimants in theprocess, by forcing them to articulate a substantial interest for the decision rather than simplysaying “we are not required to give your peculiar personal interests any weight.” See id. Asthe Supreme Court’s decision in Masterpiece Cakeshop reminds us, the manner in whichgovernment actors reject an individual’s request for an exemption, whether respectful ordisrespectful, has independent constitutional significance, even if the result could have beenproperly justified. See 584 U.S. 617, 617–37 (2018).110 See generally Hay, supra note 74.111 United States v. O’Brien, 391 U.S. 367, 376 (1968).112 For example, in Masterpiece Cakeshop members of the Court struggled at oral ar-gument with whether making a wedding cake would be sufficiently expressive to warrantSpeech Clause protection, Transcript of Oral Argument at 4–47, 77–84, MasterpieceCakeshop, 584 U.S. 617 (2018) (No. 16-111), before ultimately resolving the case on narrowfree exercise grounds, 584 U.S. at 639–40.113 See Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALEL.J. 877, 879–81 (1963) (describing the freedom of expression as justified first of all as aprotection for individual self-fulfillment); Procunier v. Martinez, 416 U.S. 396, 427 (1974)(Marshall, J., concurring) (“The First Amendment . . . serves the needs . . . of the humanspirit—a spirit that demands self-expression.”).2024] HARMONIZING SPEECH AND RELIGION 693in turn, may facilitate stability in society and greater happiness for all. (Of course,symbolic expression run amok can also create disorder and other civic problems, butpresumably the O’Brien test filters those negative effects.) This justification forO’Brien is plausible if one reads the Speech Clause broadly—that is, as protectingexpression for what it means to the speaker.The self-fulfillment justification, however, fails to distinguish the freedom ofspeech from the free exercise of religion; if anything, this understanding of the free-dom of speech makes it a close parallel to religion. The Free Exercise Clause has asmuch claim, and perhaps even more directly so, to protecting individual and socialmeans of achieving self-realization and of practicing one’s conscience as the SpeechClause. Anything that can be said about expressive conduct’s potential to enhancepersonal or community fulfillment, whether political or artistic or otherwise, couldbe said of religious conduct, which the First Amendment explicitly protects.114What then of the Speech Clause’s outward functions, namely facilitating po-litical deliberation and society’s search for truth?115 While these justifications maydistinguish the Speech Clause from the Free Exercise Clause for some purposes, theydo not explain large portions of current Speech Clause jurisprudence. Specifically,they are weak justification for exempting nonverbal expressive acts from generalconduct laws under the O’Brien test. To the extent that the freedom of speech aimsto ensure participation in public deliberation and the marketplace of ideas, towardsthe end of assisting audiences to make informed and rational assessments of truth,it makes sense to ensure that speakers have adequate means to get their concreteideas across. Normally, however, one would expect a healthy deliberative processto favor communication through words, whether spoken or written, which the FirstAmendment’s explicit protections for “speech” and “press” presupposes. Words,after all, remain generally the best way to communicate ideas that are precise, in-formative, and persuasive.Nonverbal symbolic expression, on the other hand, such as through gestures anddemonstrations, are supplementary at best to constructive deliberation, and evenhave the potential to distract from it. They may be more effective than words forventing frustration or making appeals to emotion, but that is not the same as rationalpublic deliberation. What does nude dancing or burning things in the public squarecontribute to public deliberation, one may ask? And if such actions do contributesomething positive, are they the only adequate way?Importantly, the O’Brien test does not ask whether the actor has adequate al-ternative means to contribute to public deliberation for the audience’s benefit.116 It114 See Emerson, supra note 113, at 883.115 See Coenen, supra note 20, at 466–67 (arguing that the Speech Clause’s importanceto the political process justifies giving enhanced protection to expression under O’Brien ascompared to Smith’s treatment of free exercise).116 391 U.S. at 388–89 (Harlan, J., concurring).694 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677simply asks, as a threshold matter, whether the conduct is inherently expressive.117This suggests that the test is aimed at protecting some other interest. If courts did askthe “alternative means” question from a public deliberation perspective, they wouldneed to consider whether spoken words, written words, and all lawful forms of ex-pressive conduct would be enough to make the point so that audiences would under-stand. In O’Brien, for example, the Court might have asked whether David O’Briencould have used a sign, an essay, a public speech, a march, a dramatic performance(without draft card burning) or any other legal means to inform audiences that hewas strongly opposed to the draft and willing to disobey it. A fair answer wouldhave been yes: he had plenty of legal ways to make his point, even strenuously.118This is not to say that the O’Brien test is unjustified; only that it is best under-stood as protecting expression for what it means to the actor and perhaps for howit may inspire others (both of which may be said of religious exercise), rather thanits value to the political deliberative process. The Speech Clause’s special concernsfor informing the political process and marketplace of ideas do not justify havinggreater protections for expressive conduct against incidental burdens than the FreeExercise Clause offers for religious conduct.If the O’Brien test or its equivalent should apply to incidental regulatory bur-dens to the free exercise of religion, we should also consider O’Brien’s limitedscope under existing law. Courts do not apply O’Brien scrutiny to every instance inwhich a generally applicable law conflicts with a person’s subjective desire to expresssomething through action.119 In O’Brien, the Court cautioned: “We cannot accept theview that an apparently limitless variety of conduct can be labeled ‘speech’ when-ever the person engaging in the conduct intends thereby to express an idea.”120Instead, O’Brien scrutiny applies only where the individual’s conduct is “inherentlyexpressive”—that is, expressive in an objectively discernable sense.121 In practice,this means that O’Brien applies to traditional forms of symbolic expression122 and117 Id. at 385.118 Of course, symbolic conduct can potentially spur discussions that might not otherwiseoccur, so, in that sense, contribute to public deliberation. But the same could be said ofreligious conduct generally and many other forms of behavior, including illegal acts notintended as expressive. If merely having the potential to prompt discussion were enough toinvoke O’Brien-level scrutiny, then every application of law to conduct should be subject toO’Brien-level scrutiny. Such a rationale for O’Brien is overbroad and does not distinguishreligious conduct.119 See Fee, Speech-Conduct, supra note 108, at 99–100 (discussing the Supreme Court’sapplication of the “inherently expressive” requirement for expressive conduct).120 391 U.S. at 376.121 See Rumsfeld v. FAIR, 547 U.S. 47, 65–66 (2006).122 Hurley v. Irish Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569–70(1995) (recognizing parades and other traditional expressive forms as constitutionallyprotected even without a particularized message).2024] HARMONIZING SPEECH AND RELIGION 695to conduct that would convey a particularized message understandable to audienceswithout accompanying verbal explanation.123The Supreme Court’s concerns under O’Brien with applying heightened scrutinyto protect a “limitless variety” of conduct also apply to the free exercise of reli-gion.124 The Constitution places no limits on the types of religious beliefs one mayhave,125 so any behavior could (and likely does) have religious significance to somebelievers; indeed, there are likely many who consider all of their daily behavior tobe an exercise of religion, as, for example, the Bible counsels this.126 It was thislimitless variety concern that motivated the Court in Smith to reject across-the-boardheightened scrutiny for incidental regulatory conflicts with religious exercise.127Smith may have been an overreaction, but the Court was correct to observe that ap-plying heightened scrutiny to any regulation that incidentally burdens religion froma religious believer’s perspective cannot be sustainable.For these reasons, applying heightened scrutiny to regulations that incidentallyburden religious conduct under the Free Exercise Clause presumably should comewith limitations parallel to those under the Speech Clause. This suggests that theheightened scrutiny test for incidental burdens should apply to common forms ofreligious exercise and religious conduct that would be discernable in its context assuch (without verbal explanation). This includes such recognized forms of worshipas organizing in congregations, prayer, rituals, sacraments, and likely much more.But heightened scrutiny would not apply to every regulated action that the actorpersonally believes is religiously significant. For example, if free exercise scrutinywere parallel to speech protections, heightened scrutiny should not apply to a reli-gious believer’s refusal to obey a general anti-discrimination law while doingbusiness with the public.128 This does not mean that less traditional or recognizableforms of religious exercise would have no protection under the Free ExerciseClause, only that the incidental burden/heightened scrutiny test does not apply. As123 See FAIR, 547 U.S. at 66 (“If combining speech and conduct were enough to createexpressive conduct, a regulated party could always transform conduct into ‘speech’ simplyby talking about it.”).124 391 U.S. at 376.125 See U.S. CONST. amend I.126 Colossians 3:17 (King James) (“And whatsoever ye do in word or deed, do all in thename of the Lord Jesus . . . .”); Deuteronomy 6:7–8 (King James) (“[T]hou shalt teach [theLord’s words] diligently unto thy children, and shalt talk of them when thou sittest in thinehouse, and when thou walkest by the way, and when thou liest down, and when thou risestup. And thou shalt bind them for a sign upon thine hand, and they shall be as frontletsbetween thine eyes.”).127 494 U.S. 872, 896–97 (1990) (O’Connor, J., concurring).128 Such a case arising under the Free Exercise Clause would be similar to Rumsfeld v.FAIR, where the Court held that O’Brien scrutiny did not apply to law schools’ refusal toprovide services to military recruiters as a protest against the military’s treatment of gayservice members because such conduct did not qualify as inherently expressive. 547 U.S. at65–66.696 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677under current law, religious conduct of this sort would remain fully protected byother facets of free exercise jurisprudence, including anti-discrimination and under-inclusivity protections.129Another limitation to the O’Brien test comes from the Supreme Court’s decisionin Arcara v. Cloud Books,130 and has to do with general background laws thatindirectly affect speech and expression.131 In Arcara, the Court held that the O’Brientest did not apply to a city’s closure of a bookstore due to its finding of illegal pros-titution connected to the business.132 Even though the City’s action shut down ad-mittedly protected First Amendment behavior, the Court did not even apply O’Brienscrutiny because the predicate rule of conduct (a prohibition on prostitution) lackedany focus on communication or purpose having to do with communication.133Observing that there are countless legal rules that affect speech and expression insimilar indirect ways (consider traffic laws, property laws, business laws, and taxlaws—all of which affect one’s legal capacity to exercise First Amendment free-doms), the Court stated: “[W]e have subjected such restrictions to scrutiny onlywhere it was conduct with a significant expressive element that drew the legalremedy in the first place . . . or where a statute based on a nonexpressive activity hasthe inevitable effect of singling out those engaged in expressive activity.”134The Arcara rule qualifies the idea that incidental regulatory restrictions onspeech or inherently expressive conduct call for heightened scrutiny. Dan Coenencalls these “doubly-incidental-burdens.”135 I prefer to think of them as inherentlimitations and effects of general background laws.136 Either way, taking Arcara intoaccount, even when dealing with a general law that has a clear effect on protectedFirst Amendment behavior, one may need to additionally find that the relevant lawoperates directly on the protected conduct, or at least targets behavior that is oftenexpressive or religious, or creates potential disparate impacts toward protectedconduct before O’Brien-level scrutiny would apply.While contours of Arcara’s holding remain imprecise and in need of develop-ment,137 Arcara shows that some limiting principle must exist to prevent the applica-tion of heightened scrutiny to any regulation remotely affecting speech and religion(even in their traditional forms), as essentially all law affects the backgroundconditions, privileges, property rights, and entitlements within which speech and129 See Randall P. Bezanson et al., Mapping the Forms of Expressive Association, 40 PEPP.L. REV. 23, 44–45 (2012).130 478 U.S. 697 (1986).131 Id. at 706, 707.132 Id. at 705, 707.133 Id. at 707.134 Id. at 706–07.135 Coenen, supra note 20, at 441, 475–78.136 Fee, Speech-Conduct, supra note 108, at 111–13.137 For a thorough treatment of many possible interpretations of the Arcara principle, seeCoenen, supra note 20, at 479–94.2024] HARMONIZING SPEECH AND RELIGION 697religious exercise operate. The concerns that give rise to the Arcara principle for thefreedom of speech would be equivalent for the free exercise of religion to the extentthat heightened scrutiny applies to incidental burdens in that sphere as well.Tentative Recommendation: The Court should apply meaningful intermediatescrutiny to incidental restrictions that directly burden traditional forms of symbolicexpression and of religious exercise. The limitations on the O’Brien-test’s applica-bility should be parallel for religion and expression. These limitations includeboundaries on what may be considered a traditional or recognized form of expres-sion or religion respectively, and Arcara’s exclusion of broad and general back-ground laws that create no disparate impact to religion or expression.C. Regulations That Lack General ApplicabilityFree exercise and speech jurisprudence also differ in the treatment of regulationsthat are underinclusive in relation to their objectives or that allow individualizedexemptions. The Supreme Court has interpreted the Free Exercise Clause moreprotectively than the Speech Clause with respect to such regulations, holding suchregulations subject to strict scrutiny on the basis that they are lacking in generalapplicability.138 By contrast, under the Speech Clause, it is possible for strict, inter-mediate, or no scrutiny to apply to these kinds of underinclusive regulations.139 Thedifference should prompt us to consider why general applicability matters to reli-gious and expressive freedom, and consider adjusting both areas of jurisprudencetoward another. This feature of free exercise jurisprudence indicates that speechjurisprudence is not protective enough in some applications, while at the same time,free exercise jurisprudence may be too strict in its treatment of general applicability.Under the Free Exercise Clause, a regulation that burdens religious exercise issubject to strict scrutiny if it is not generally applicable.140 Such regulations falloutside the scope of Employment Division v. Smith, and, therefore, are subject to thepre-Smith strict scrutiny regime.141Moreover, the Supreme Court has interpreted general applicability to mean morethan religious neutrality, which is a separate prong of the Smith test.142 One way aregulation may lack general applicability is “if it prohibits religious conduct whilepermitting secular conduct that undermine the government’s asserted interests in asimilar way.”143 Put another way, a regulation lacks general applicability if it isunderinclusive in relation to its secular objectives.144138 Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1872 (2021).139 Williams-Yulee v. Fla. Bar, 575 U.S. 433, 449 (2015).140 Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 521 (1993).141 See 494 U.S. 872, 882 (1990).142 See Lukumi, 508 U.S. at 540–45 (analyzing neutrality and general applicabilityseparately).143 Fulton, 141 S. Ct. at 1877.144 See Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (“[W]hether two activities are698 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677The Supreme Court applied this understanding of general applicability inChurch of Lukumi Babalu Aye, Inc. v. Hialeah,145 where it held unconstitutional cityregulations prohibiting the ritual slaughter of animals, which burdened the religiouspractices of the Santeria. The government justified the prohibition against ritualslaughter on the grounds of preventing animal cruelty and public health concernsrelated to disposing carcasses.146 The Supreme Court found, however, that the ordi-nances were underinclusive in relation to these objectives because the law permittedother forms of animal killing, including hunting and commercial animal slaughter,which implicated these same interests.147 Accordingly, the Court applied strict scru-tiny and found the ordinances unconstitutional.148More recently, the Court used the same principle to enjoin several COVID-relatedregulations that restricted the ability of religious groups to gather and worship duringthe pandemic.149 Whereas the Court did not question that regulations of group meet-ings would serve the government’s significant interest in limiting the spread ofCOVID, the Court found some regulations lacking in general applicability where thelaw allowed secular activities under more favorable terms than the religious gatheringsat issue. For example, in Tandon v. Newsom, the Court found that a state prohibitionon gatherings at homes with more than three households lacked general applicabilityunder the Free Exercise Clause, even though it applied to all at-home gatheringsregardless of religious purpose, because the law failed to restrict some commercialactivities in a like manner, potentially allowing them to bring together more thanthree households at time.150 The commercial activities that the Court deemed com-parable to home gatherings included hair salons, retail stores and restaurants.151 TheCourt dismissed the argument that the State could reasonably conclude that at-homegatherings posed a greater risk of COVID transmission than these commercialactivities by noting only the lack of factual findings to support this.152 Tandon showshow rigorous the Free Exercise Clause’s general applicability requirement can bewhere it places a factual burden on the government, even during a pandemic, tojustify religiously neutral and plausibly sensible regulatory classifications that resultin restrictions to religious liberty, the failure of which results in strict scrutiny.Another way for a regulation to lack general applicability for free exercise pur-poses is if it allows for individual exemptions. The Court has held that “where thecomparable for purposes of the Free Exercise Clause must be judged against the assertedgovernmental interest that justified the regulation at issue.”).145 508 U.S. at 521.146 Id. at 545.147 Id.148 Id. at 546–47.149 Tandon, 141 S. Ct. at 1296; Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14,15, 17–18 (2020); S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 716 (2021).150 141 S. Ct. at 1297.151 Id.152 Id.2024] HARMONIZING SPEECH AND RELIGION 699State has in place a system of individual exemptions, it may not refuse to extend thatsystem to cases of ‘religious hardship’ without compelling reason.”153 In Smith, theCourt relied on this principle to distinguish prior religious freedom cases, includingSherbert v. Verner, involving unemployment compensation regulations that had con-tained a “good cause” requirement for refusing alternative work.154 More recently,in Fulton v. City of Philadelphia,155 the Court used this test of general applicabilityto invalidate a religious foster care agency’s contractual obligation to certify fosterfamilies without discriminating against same-sex couples. The Court noted that theagency’s contract allowed the commissioner responsible for foster care to makeexceptions to the non-discrimination requirement “in his/her sole discretion.”156 TheCourt found that this potential exception required strict scrutiny of the government’senforcement of the non-discrimination requirement against a religious objector, eventhough the government had never made an exception under this provision.157There are no equivalent rules in speech jurisprudence for regulations lacking ingeneral applicability. To be sure, some underinclusive regulations affecting speechmay draw strict scrutiny where they are content based. For example, in Reed v.Gilbert,158 the Court applied strict scrutiny to a sign regulation enacted to controlvisual clutter because it treated temporary directional signs less favorably than othertypes of signs.159 But content-based regulations are not the only potentially under-inclusive regulations that burden speech.Consider Price v. Garland, where the D.C. Circuit recently upheld a federalregulation requiring a permit and fee for commercial filmmaking in nationalparks.160 The regulation, enacted for the purposes of raising revenue and controllingthe overuse of sensitive federal lands, imposes a clear burden and tax on FirstAmendment–protected behavior.161 It applies even to a single hiker who uses a cellphone to capture video for purposes of profit,162 and yet does not apply to a varietyof comparable activities including filmmaking for newsgathering,163 non-commercial153 Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1877 (2021) (quoting Emp. Div. v.Smith, 494 U.S. 872, 884 (1990)).154 Smith, 494 U.S. at 884.155 141 S. Ct. at 1877.156 Id. at 1878.157 Id. at 1879.158 576 U.S. 155 (2015).159 Id. at 163–71.160 45 F.4th 1059, 1064 (D.C. Cir. 2022).161 Although the court distinguished filmmaking on federal lands from communicativebehavior for purposes of its forum analysis (as filmmaking is only a step towards ultimatepublication of a film), it acknowledged that such activity is “protected as speech under theFirst Amendment.” Id. at 1070.162 43 C.F.R. § 5.12 (2022) (defining “commercial filming” as “the film, electronic,magnetic, digital, or other recording of a moving image by a person, business, or other entityfor a market audience with the intent of generating income.”).163 Id. § 5.4.700 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677video production,164 taking of still pictures for profit,165 or non-expressive visitorconduct.166 The D.C. Circuit found the permit and fee requirement constitutional asa reasonable, viewpoint-neutral regulation of speech in a nonpublic forum.167 Whilerecognizing that the regulation did not apply to some similar activities, the courtexplained that underinclusiveness has limited relevance to freedom of speech analy-sis.168 If the regulation had burdened religion instead of only speech, perhaps be-cause the filmmaker sought to make a religious film, free exercise analysis would haverequired strict scrutiny, and application of the law would have been unconstitutional.There is also no general freedom of speech principle requiring strict scrutinywhere there are individualized exemptions available.169 It is true that where agovernment imposes prior restraints on speech, such as permit requirements, thegovernment must employ neutral, nondiscretionary standards to avoid the potentialfor content-based discrimination.170 Thus, a parade permit regulation with discretion-ary exemptions would likely be unconstitutional. But the general rule for freedomof speech is that content-neutral regulations require only intermediate scrutiny, evenif the regulatory structure allows for exemptions.171 Indeed, local land use regulationalmost always contains a system for allowing variances based on hardship, andcourts have not suggested that this makes the zoning of bookstores, schools, meetinghalls, performance venues, or theaters172 subject to strict scrutiny.It is even possible for some regulations lacking in general applicability to bur-den sincere communicative behavior and require no scrutiny at all under the SpeechClause. This arises because the Court has held that the Speech Clause only requiresscrutiny where the claimant’s conduct is “inherently expressive.”173 As the Court heldin FAIR, combining conduct with words that explain its meaning is not sufficient forthis purpose.174 Accordingly, the Court did not even apply intermediate scrutiny toFAIR’s claim to be exempt from admitting military recruiters to its buildings.175164 Id. § 5.2(c).165 Id. § 5.2(b).166 Id. § 5.2(c).167 Price v. Garland, 45 F.4th 1059, 1075 (D.C. Cir. 2022).168 See id. at 1074; see also ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 957(D.C. Cir. 1995) (“[A]n underinclusive . . . regulation that is otherwise valid must be foundto be constitutional so long as it does not favor one side of an issue and its rationale is notundermined by its exemptions.”).169 See, e.g., McCullen v. Coakley, 573 U.S. 464, 485 (2014).170 Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153 (1969) (“[W]e have con-sistently condemned licensing systems which vest in an administrative official discretion togrant or withhold a permit upon broad criteria unrelated to proper regulation of public places.”).171 See Reed v. Town of Gilbert, 576 U.S. 155, 166 (2015).172 Cf. Renton v. Playtime Theaters, 475 U.S. 41 (1986) (applying intermediate scrutinyto a city zoning regulation affecting the location of adult movie theaters).173 Rumsfeld v. FAIR, 547 U.S. 47, 66 (2006).174 Id.175 Id. at 67.2024] HARMONIZING SPEECH AND RELIGION 701FAIR did not make the argument that the federal law requiring equal treatmentof military recruiters lacked general applicability, as that is not an element of SpeechClause analysis.176 If the argument were available, however, FAIR might have pointedout that the Religious Freedom Restoration Act requires religious exemptions fromfederal laws, including the recruiting regulation in question, except in compellingcircumstances.177 Accordingly, federal law would have required an exemption foranother school with religious reasons to refuse military recruiters.178 The disparityunder federal law between FAIR’s request for an expressive conscientious exemp-tion (which the Court gave no scrutiny) and the availability of religious exemptionsto the same regulation (which would receive strict scrutiny) creates a failure of gen-eral applicability much like the failures the Court has found in free exercise cases.179The Court has offered no justification for such differing standards in the treat-ment of underinclusive regulations affecting speech and religious conduct.180 Wherereligious freedom is affected, the Supreme Court has explained that a regulation’sfailure to cover comparable non-religious conduct in relation to the government’sinterests is an indicator of potential religious bias on the part of the government.181Even if the government has no discriminatory purpose, underinclusiveness indicates“insufficient appreciation or consideration of the interests at stake.”182 For thesereasons, it is reasonable to hold that where a law affecting religious freedom issignificantly underinclusive, the usual conditions of judicial deference do not apply.The same observations should apply to significantly underinclusive regulationsaffecting the freedom of speech. As in Price v. Garland, where the underinclusiveregulatory structure showed that the government could permit expressive freedomwithout undermining important governmental objectives, regulating protected expres-sive behavior should be presumed unconstitutional.183 Indeed, to fail to protect the176 See id. at 53.177 42 U.S.C. §§ 2000bb-1, 2000bb-2(1).178 See id.179 The Court’s conclusion that FAIR’s conduct was not protected by the Speech Clausebecause refusing military recruiters is not inherently expressive points to another divergencewith Free Exercise Clause jurisprudence. See FAIR, 547 U.S. at 66. In Fulton, the Court did notask whether refusing to certify same-sex couples for foster care is inherently religious con-duct, but rather found it sufficient that the claimant considered its conduct to have religioussignificance. See Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1872, 1877 (2021). Whethersuch a requirement should be a prerequisite for scrutiny of speech and free exercise claims,treating such similar First Amendment claims differently in this respect is questionable.180 See generally Fulton, 141 S. Ct. 1868; FAIR, 547 U.S. 47. 181 See Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 545–46 (1993)(The ordinances “‘ha[ve] every appearance of a prohibition that society is prepared to imposeupon [Santeria worshippers] but not upon itself’. . . . This precise evil is what the requirementof general applicability is designed to prevent.”) (alternation in original) (citation omitted).182 S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 717 (2021) (Roberts,C.J., concurring).183 45 F.4th 1059, 1074–75 (D.C. Cir. 2022).702 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677freedom of speech in a comparable way to the free exercise of religion creates abiased structure to the First Amendment itself.At the same time, courts should defer to reasonable justifications for differentcategories of regulatory treatment. Otherwise, this line of jurisprudence could leadto the use of strict scrutiny too often, where no presumption of improper govern-mental decision-making is warranted. Many, perhaps even most, regulations affect-ing speech and religion are arguably underinclusive in some respect, particularly tothose who disagree with the underlying regulatory policies and to courts that arewilling to substitute their policy judgments for those of elected officials. The Court’sdecision in Tandon illustrates these dangers, where the Court imposed an unreason-able burden on the government to justify a regulatory distinction that was religiouslyneutral on its face and plausibly correlated to the government’s purpose of protect-ing health.184 Analyzing a regulation for general applicability should not be a pretextfor rigorously scrutinizing laws that courts do not agree with.Tentative Recommendation: Courts should apply doctrines that have developedunder free exercise jurisprudence for regulations that also lack general applicabilityto the freedom of speech, as well. Regulations that are significantly underinclusiveor that contain systems of exemptions that lend themselves to discrimination shouldbe subject to strict scrutiny if they burden religious or expressive conduct. At thesame time, courts should defer to plausibly reasonable regulatory classifications sothat this does not lead to the overuse of strict scrutiny.D. Rights of AssociationThe freedom of speech and the free exercise of religion are not only individualrights, but also collective rights for those who join toward a common goal. The rightto associate with others for First Amendment purposes is another area where speechand free exercise raise parallel jurisprudential challenges, and yet have diverged intheir doctrine. Understanding these rights as parallel can improve the understandingand application of both, even if there are sound arguments in some cases for treatingone differently than the other.The Constitution does not protect an independent freedom of association, butthe Supreme Court has appropriately recognized that the freedom of speech includesa right to associate with others for expressive purposes.185 This is a significant com-ponent of the freedom of speech, as almost all influential cases involve associationat some level. Association can significantly enhance the freedom of speech forindividuals by facilitating communication and education both internally to groups184 See Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021).185 See Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984) (“[W]e have long understoodas implicit in the right to engage in activities protected by the First Amendment a corres-ponding right to associate with others in pursuit of a wide variety of political, social,economic, educational, religious, and cultural ends.”).2024] HARMONIZING SPEECH AND RELIGION 703and externally through resource-pooling and coordinated campaigns. Accordingly,the freedom of expressive association protects various facets of individual and groupbehavior, including rights of individuals to affiliate with or donate to expressive orga-nizations, as well as rights of organizations to control their message, membership,educational practices, and representatives.186 At the same time, the Supreme Courthas often protected the freedom of expressive association under a flexible approachthat, at times, is intrusive and can leave organizations subject to various limitations.An example of the Supreme Court’s flexible approach to the freedom of associa-tion can be found in Roberts v. United States Jaycees.187 In Roberts, the SupremeCourt held that it was constitutional for a state to apply public accommodation lawto the membership policies of the Jaycees’ organization, a charitable organizationdedicated to fostering the growth of young men, so as to prohibit sex discriminationin its ranks.188 Although the Jaycees did allow women as associate members, its poli-cies prohibited women from having full membership with voting rights.189 TheJaycees’ claim of expressive association included the argument that allowing womenas voting members could affect the direction of the organization and the positionsit chose to take.190 The Supreme Court, however, rejected this argument by finding itto be based on improper assumptions about the relative viewpoints and priorities thatmale and female members are likely to hold.191 Remarkably, the Court substitutedits own judgment about gender tendencies for that of the private organization, stating:“Although such generalizations may or may not have a statistical basis in fact withrespect to particular positions adopted by the Jaycees, we have repeatedly condemnedlegal decisionmaking that relies uncritically on such assumptions.”192 The Courtfurther held that even if public accommodation law would substantially interfere withthe Jaycees’ freedom of expressive association, the organization’s interest was out-weighed by the State’s significant interest in expanding opportunities for women.193The Court’s weak treatment of expressive association in Roberts contrasts withthe Supreme Court’s treatment of religious associational freedom, particularly in itsministerial exemption cases.194 By the same logic that the Speech Clause implies afreedom of expressive association, the Free Exercise Clause implies a right to186 See generally Bezanson et al., supra note 129 (detailing various kinds of expressiveassociation and their constitutional protection).187 468 U.S. 609.188 Id. at 628–29.189 Id. at 613.190 Id. at 627–28.191 Id. at 628.192 Id.193 Id. at 628–29.194 See Kalvis Golde, Christian School Renews Effort to Expand Religious Freedom OverEmployment, SCOTUSBLOG (Mar. 17, 2023, 5:45 PM), https://www.scotusblog.com/2023/03/christian-school-renews-effort-to-expand-religious-freedom-over-employment/ [https://perma.cc/T59J-8TYA].704 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677associate for religious purposes, including a right for such religious organizationsto choose their own leaders, members, teachers, and doctrines. And like expressiveassociations, religious associations sometimes are burdened by employment andpublic accommodation regulations in the exercise of these choices.195The Supreme Court has fewer freedom of religious association cases as such,possibly because the freedom of expressive association provides overlapping pro-tection. But in the case of a religious organization’s selection of religious leadersand teachers, the Court’s ministerial exemption doctrine operates as a super-freedomof religious association rule that has no parallel for speech. In Hosanna-Tabor Evan-gelical Lutheran Church and School v. Equal Employment Opportunity Commis-sion, the Court held that a religious school was immune from a lawsuit under theAmericans with Disabilities Act for allegedly firing a religious teacher on the groundsof her disability.196 The Court did not inquire about the factual accuracy of thedismissed employee’s claims, nor did it ask the organization to demonstrate that itsaction was justified on the basis of its religious teachings or religious mission.197Finally, the Court did not even apply strict scrutiny to the State’s interest.198 TheCourt simply held that churches have an absolute right to choose their ministers, andonce it concluded that the ministerial exemption applied, that was the end of theinquiry.199 The Court extended the principle in Our Lady of Guadalupe School v.Morrissey-Berru to teachers who did not formally have religious titles, holding thatthe ministerial exemption applies on the basis of whether the employee has signifi-cant religious duties.200What could be the justification for providing significantly stronger protectionfor religious associations to choose their representatives than for non-religious ex-pressive organizations? The Court’s ministerial exemption cases imply two possiblearguments, one that is quite weak and another that is serious but that may notexplain the whole difference.The weak argument is that the text of the First Amendment suggests extraprotection for religious associations’ selection of leaders and representatives. InHosanna-Tabor, the Court dismissed the plaintiff’s argument that the Court’sexpressive association standards should govern a church’s selection of its ministers,stating “[t]hat result is hard to square with the text of the First Amendment itself,which gives special solicitude to the rights of religious organizations. We cannotaccept the remarkable view that the Religion Clauses have nothing to say about areligious organization’s freedom to select its own ministers.”201 The problem with195 See Transcript of Oral Argument at 41, Boy Scouts of Am. v. Dale, 530 U.S. 640(2000) (No. 99-699).196 565 U.S. 171, 179 (2012).197 See generally Hosanna-Tabor, 565 U.S. 171.198 See generally id.199 See id. at 188–90.200 See 140 S. Ct. 2049, 2080 (2020).201 565 U.S. at 189.2024] HARMONIZING SPEECH AND RELIGION 705this textual argument is that the First Amendment actually says nothing about re-ligious organizations.202 It is reasonable, of course, to infer protection for religiousorganizations from both the Free Exercise Clause and the Speech Clause,203 but theFirst Amendment does not include anything suggesting that the former inference isstronger or distinct from the latter. Nor would interpreting the Free Exercise andSpeech Clauses as providing parallel, equivalent protections for freedom of associa-tion in this respect render the Free Exercise Clause superfluous, or even close tosuch, as there are many other applications of the Free Exercise Clause outside of thescope of this implied right of association where the Free Exercise Clause providessubstantially different protection than what the Speech Clause provides.204A potentially stronger argument for more rigorously protecting the rights ofreligious organizations to select their representatives, at least in some applications,is that the Establishment Clause imposes additional limitations on the adjudicationof religious questions.205 Employment claims often involve disputes over an em-ployer’s motives, which, in turn, often leads to a probing of sincerity and pretext.206In a case involving a religious employer who dismisses an employee for reasonsrelating to religion, there is a risk that a court would be drawn into adjudicating thereasonableness or correctness of the supposed religious views, which could turncourts into religious tribunals. This could have been a problem in the Hosanna-Tabor litigation, where the church employer reportedly had a religious justificationfor dismissing the teacher.207 Without the ability to adjudicate that issue, and withthe risk of even probing the church’s sincerity, the Court’s decision in favor of202 See U.S. CONST. amend. I.203 One could also infer some private association rights from the Establishment Clause,which I address as a separate argument. For purposes of this textual argument, it is enoughto note that the Establishment Clause’s relationship to private freedom of association is alsobased on inference, even more distant than that of the Free Exercise Clause. The plain mean-ing of the Establishment Clause is aimed at the government’s ability to establish religion andwould not become superfluous by finding that private freedoms of religious association andexpressive association are equivalent.204 For example, under any interpretation of the ministerial exemption, the Free ExerciseClause would continue to provide strong protection against religious discrimination, as wellas protection from non-discriminatory burdens outside the scope of Employment Division v.Smith where the behavior would not qualify as speech. See Kennedy v. Bremerton Sch. Dist.,142 S. Ct. 2407, 2421 (2022). Given that the Speech and Free Exercise Clauses provideoverlapping protection for many types of behavior, it is also natural that two clauses mayprovide redundant protection against certain types of governmental action. For example,Speech Clause and Free Exercise Clause protection is often redundant where the governmentattempts to regulate religious speech.205 See Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171,188–89 (2012) (relying on the Establishment Clause in combination with the Free ExerciseClause, including is prior religious decisions cases, to support the ministerial exemption).206 See id. at 205 (Alito, J., concurring).207 See id. at 204–05. But see Frederick Mark Gedicks, Narrative Pluralism and DoctrinalIncoherence in Hosanna-Tabor, 64 MERCER L. REV. 405, 409–15 (2013).706 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677Hosanna-Tabor seems justified. The ministerial exemption may also be justifiedeven where sincerity is not in question, as a court could be drawn into religiousadjudication if it is required to weigh the strength or reasonableness of an organiza-tion’s religious interest (as the Jaycees’ Court did for speech) in selecting its leadersagainst competing governmental interests.208A weakness with this justification for the ministerial exemption doctrine,however, is that the ministerial exemption does not depend on the existence of areligious question in the case. In Hosanna-Tabor, the Court stated: “The purpose ofthe exception is not to safeguard a church’s decision to fire a minister only when itis made for a religious reason. The exception instead ensures that the authority toselect and control who will minister to the faithful . . . is the church’s alone.”209 Ina case where there is no religious justification at issue, and the only applicableregulations are secular, any concern that a court would be drawn into establishingreligion through adjudication is wholly absent.This is not to say that the ministerial exemption is unjustified, but rather that thedoctrine as framed by the Court resonates more directly and completely with FreeExercise Clause concerns than with Establishment Clause concerns. We shouldunderstand the ministerial exemption doctrine as holding that the free exercise ofreligion includes a right to form religious organizations with internal power to selectthe organization’s leaders and teachers, even where such decisions conflict withreligiously neutral governmental regulations. Put this way, the ministerial exemptiondoctrine is another exception to Employment Division v. Smith, and it ensures thatindividuals and communities have adequate freedom to practice religion accordingto the dictates of their own conscience.If the ministerial exemption arises primarily from the Free Exercise Clause,courts should take seriously the argument that the First Amendment provides a par-allel right under the Speech Clause for expressive organizations to choose their ownleaders and representatives without probing inquiry. To be sure, the Supreme Courthas upheld the rights of expressive organizations to choose their representatives insome cases,210 but its standards for adjudicating these rights are less deferential,211 al-lowing lawsuits potentially to influence organizations’ speech and internal decisions.Consider Boy Scouts of America v. Dale, where the Supreme Court upheld, by afive–four vote, the national scouting organization’s constitutional right to dismiss agay scoutmaster, which New Jersey courts had found violated state anti-discrimination208 This is a double-edged argument for religious freedom, however, as it has also beenused as a reason for courts to avoid granting individualized accommodations from generallyapplicable laws. See Emp. Div. v. Smith, 494 U.S. 872, 887 (1990) (noting inappropriatenessof adjudicating the centrality of religious beliefs or the proper interpretation of doctrine).209 565 U.S. at 194–95.210 E.g., Cal. Democratic Party v. Jones, 530 U.S. 567, 586 (2000) (Kennedy, J.,concurring); Boy Scouts of Am. v. Dale, 530 U.S. 640, 659 (2000).211 See Dale, 530 U.S. at 653, 659.2024] HARMONIZING SPEECH AND RELIGION 707law.212 In order to prevail in its expressive association claim, Boy Scouts introducedevidence that its teachings included a proscription against homosexual conduct thatwould be undermined if Dale were allowed to remain a scoutmaster.213 The NewJersey courts, however, were not convinced that the Boy Scouts teachings were clearenough on this point,214 and neither were four Justices of the Supreme Court.215A majority of the Supreme Court deferred to the Boy Scouts, in part because ithad spelled out a clear enough position against homosexuality in the course of liti-gation,216 but even that probing inquiry seems to have come at a price to the BoyScouts’ expressive freedom and quite possibly steered the organization’s publicexpression. What if, as seems likely, the Boy Scouts would have preferred to leaveits admonition to be “morally straight”217 open to interpretation with respect tohomosexuality, as the Boy Scouts had sponsored members with differing views onthis divisive subject?218 This is consistent with evidence that the reason the BoyScouts dismissed Dale as a scoutmaster had less to do with his private behavior andmore to do with the fact that he made himself a public figure and was quoted innewspapers declaring that one can be openly gay and a scoutmaster.219 If this is right,Boy Scouts v. Dale was ultimately a loss for the Boy Scouts’ expressive freedom (itlost the ability to emphasize a general message of morality while choosing howmuch to say on the topic of homosexuality), even if it technically won the case. If theSpeech Clause were understood to include the equivalent of a ministerial exemptionfor expressive organizations (a categorial right to choose their own leaders and rep-resentatives), the Boy Scouts would have been spared from this speech-coercivelitigation over the meaning of its Scout Oath.Treating expressive association and religious association as parallel freedomsmay also provide guidance for defining the types of organizations qualified forstrong protection versus others that must generally abide by employment and publicaccommodation regulations. The Supreme Court’s ministerial exemption casesspeak of protecting “churches” or alternatively “religious institutions” in the selec-tion of their representatives;220 the Court has not suggested that the ministerial212 See id. at 659.213 See id. at 651–53.214 See Dale v. Boy Scouts of Am., 734 A.2d 1196, 1223–24 (N.J. 1999) (“We are notpersuaded . . . that a ‘shared goal[]’ of Boy Scout members is to associate in order topreserve the view that homosexuality is immoral.”) (alteration in original).215 Dale, 530 U.S. at 665–68 (Stevens, J., dissenting).216 See id. at 652–53.217 See id. at 650.218 See id. at 654–55.219 See Transcript of Oral Argument, supra note 195, at 9, 25 (indicating the Boy Scouts’practice was not to inquire into the sexual orientation of leaders, but that Dale drewobjections within the organization by interviewing with newspapers and creating a reputationfor himself).220 See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020).708 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677exemption protects any organization with some religious component, which wouldbe far more disruptive. Many private corporations and organizations could have somereligious component, as owners may treat any business organization with religiouspurpose, and organizations not currently religious would be incentivized to addreligion to their mission if this would exempt them from onerous regulations.Likewise, under the Speech Clause, it is not sustainable to extend strong expressiveassociation protection to any organization that engages in some protected speech,or takes some political or ideological positions, as nearly all business corporationswould qualify.The problem of keeping First Amendment association rights within workablebounds points to a necessary distinction between organizations whose primarypurpose relates to the exercise of First Amendment rights versus others that areprimarily organized for commerce or other non-constitutional purposes. Though theline may be difficult to draw, the ministerial exemption inevitably requires it.221 Andif it is possible for religious organizations, it is possible to draw such a line for pre-dominately expressive organizations.222 This would likely provide a clearer justifica-tion than current expressive association case law for why some organizations shouldwin expressive association claims while others should lose.Tentative Recommendation: The freedom of expressive association should beapplied with more deference to expressive organizations’ claims concerning whatwould interfere with their message, in accordance with the Court’s approach inreligious association cases. At the same time, extending such deference to expressiveassociations may highlight the need for limitations on what may qualify as a pre-dominately expressive or religious organization.E. Public EmploymentThe Supreme Court’s analysis in Kennedy also exposed an apparent anomalybetween the application of these two rights.223 The question concerns what level ofscrutiny applies to government conditions restricting its employees’ constitutionallyprotected behavior for speech and religious exercise respectively. Although avoidinga decision on this question, Kennedy suggested that current law points toward strict221 See Roberts v. U.S. Jaycees, 468 U.S. 609, 635 (1984) (providing background on thedifficulty of articulating such standards under the First Amendment).222 Justice O’Connor instructively proposed such a line in her concurring opinion inRoberts v. United States Jaycees, which, unlike the majority, avoids second-guessing an ex-pressive organization’s protected viewpoints. Id. For Justice O’Connor, the Jaycees appro-priately lost their expressive association claim because the organization was essentially abusiness networking organization engaged in commerce, with only limited involvement inpublic issue advocacy, and therefore did not have strong freedom of association rights. Id.at 638–40. Had the organization qualified as a predominately expressive association, shewould have ruled in its favor. See id.223 See Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2426 (2022).2024] HARMONIZING SPEECH AND RELIGION 709scrutiny if the prohibited behavior implicates the Free Exercise Clause, but onlyintermediate scrutiny under the Speech Clause.224In Kennedy, a school district had disciplined a football coach for praying withthe participation of student-athletes before football games after being instructed tostop.225 The Court found that the coach’s conduct was both religious and expressive,and that it was outside the scope of his official duties, so the school’s instruction tocease praying implicated both his free exercise of religion and his freedom ofspeech.226 The Court took the opportunity to emphasize how the Free Exercise andSpeech Clauses work “in tandem” and point together to the same conclusion: todiscipline Kennedy for such protected behavior is unconstitutional.227The Court’s analytical method of getting to that unified conclusion, however,awkwardly suggested a divergence.228 For Kennedy’s free exercise claim, the Courtused the general applicability test of Church of Lukumi Babalu Aye v. Hialeah todetermine that heightened scrutiny applies and noted that, under Lukumi, this “gen-erally” means strict scrutiny.229 When considering Kennedy’s speech claim, how-ever, the Court used the Pickering-Garcetti framework to determine that heightenedscrutiny applies, and noted that under Pickering, this requires “a delicate balancingof the competing interests surrounding the speech and its consequences,” which iscommonly known as the Pickering balancing test.230 Many consider Pickering aform of intermediate scrutiny,231 but whatever one calls it, it is less rigorous thanstrict scrutiny.232Apparently sensing the problem of differing levels of scrutiny for speech andfree exercise in the public employment context, the Court avoided deciding whatstandard should apply to Kennedy’s claim under either Clause. It found simply thatthe school district could not justify its actions under either possible standard, and soviolated both the Free Exercise Clause and the Speech Clause.233Indeed, it would be troubling if there were a stricter standard for free exerciseclaims arising from public employment than for speech claims. It would signal thatreligious freedom is the superior First Amendment right, and that the First Amend-ment even favors religious speech over non-religious speech in otherwise similarcircumstances. Suppose a high school teacher publishes sufficiently disturbingmaterial on the internet (say derogatory comments about students or salacious sexual224 See generally id.225 See id. at 2415–17.226 See id. at 2433.227 See id. at 2421.228 See generally id.229 See 508 U.S. 520, 531 (1993).230 Kennedy, 142 S. Ct. at 2423.231 See id. at 2426.232 See id.233 See id. at 2416; see also id. at 2433 (Thomas, J., concurring).710 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677material),234 such that a school district would be justified under Pickering in firingthe teacher because it would disturb the school’s learning environment. A differentstandard for free exercise protection would suggest that the teacher might still beprotected, but only if the disturbing speech is also religious in nature; the Free Ex-ercise Clause would in that case demand that the government satisfy strict scrutinyin order to take action. There is no apparent constitutional justification for incongru-ous standards favoring religious speech over non-religious speech in such a case; thestate’s interest is the same whether or not the material is religious, and the employee’soff-duty behavior is prima facie protected by the First Amendment either way.If there should be an equivalent standard for speech and religious exerciseprotections in public employment, which is preferable between Lukumi’s strictscrutiny and Pickering’s “delicate balance”?235 In this case, the answer seemsstraightforward. Government agencies, public employees, and courts have relied onthe Pickering test for decades, and in many varying circumstances, to establish ameaningful balance between employees’ freedom of speech and legitimate govern-mental concerns.236 To substitute strict scrutiny for all such claims previouslygoverned by the Pickering standard (to bring speech into alignment with freeexercise) would be highly disruptive and could undermine significant governmentalobjectives in unforeseen ways. On the other hand, as Kennedy shows, the Pickeringscrutiny is plenty rigorous to protect an employee’s religious freedom in situationswhere the government lacks clear and adequate justification, just as it providesmeaningful protection for public employees’ speech.237This need not mean, however, that the threshold requirements for Pickering-level balancing should be precisely the same for speech and free exercise. Courtsreach the Pickering balance for speech only where an employee’s speech implicates“a matter of public concern.”238 The public concern element of the Pickering test canonly be justified in relation to the Speech Clause’s special concern for communica-tion that has the potential to influence society on serious matters. In contrast, theFree Exercise Clause aims at a different set of behavior, including behavior that maybe private and have no social or communicative element. To apply Pickering’spublic concern requirement to Free Exercise claims would make no sense and wouldeven deprive the Free Exercise Clause of any independent significance in public234 See Craig v. Rich Twp. High Sch. Dist. 227, 736 F.3d 1110, 1113 (7th Cir. 2013)(allowing the school district to terminate school psychologist because of sexually provocativeself-published book that would disrupt the learning environment and deter students fromseeking the counselor’s help); Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 257 (3d Cir.2015) (allowing the school district to terminate a teacher because of blog posts makingderogatory and hateful comments about students that would disrupt her duties as a teacher).235 See Kennedy, 142 S. Ct. at 2423.236 See David L. Hudson Jr., Pickering Connick Test, FREE SPEECH CTR. (Jan. 1, 2019),https://firstamendment.mtsu.edu/article/pickering-connick-test/ [https://perma.cc/6D43-TM75].237 See Kennedy, 142 S. Ct. at 2426.238 See id. at 2424.2024] HARMONIZING SPEECH AND RELIGION 711employment claims. If there is a parallel to Pickering’s public concern requirementfor free exercise, it is simply that the employee’s conduct must be religious.Tentative Recommendation: The Court should rely upon equivalent levels ofscrutiny—based on the Pickering balance test—to scrutinize public employmentconditions affecting either speech or free exercise. Nevertheless, the “matter ofpublic concern” requirement of Pickering should not apply to Free Exercise claims.Instead, courts should ask simply whether the regulated conduct is religious.F. Compelled BehaviorStephanie Barclay and Mark Rienzi have argued that current free speech lawprotects individuals against compelled expressive behavior more stringently thancurrent free exercise law protects against analogous compulsions affecting reli-gion.239 This claim is worth considering, and its validity naturally depends on whatone considers analogous. Unlike Professors Barclay and Rienzi, I find the treatmentof compelled behavior under current free speech and free exercise standards to beequivalent. In fact, to reinterpret the Free Exercise Clause as requiring heightenedscrutiny or an exemption whenever a general regulation compels behavior in vio-lation of one’s religious beliefs would create a significant new anomaly.It is worth separating two sorts of compelled behavior claims relating to religionthat may arise under the First Amendment: (1) compelled religious behavior and (2)compelled behavior that violates one’s personal religious tenets. There are seldomFree Exercise Clause cases in the first category.240 Although it is natural to interpretthe Free Exercise Clause as prohibiting compelled religious behavior (such ascompelled participation in a religious ritual) in the same way that the Speech Clauseprohibits compelled expressive behavior, these cases are few because the Establish-ment Clause also prohibits the government from compelling religious conduct.241Moreover, the Establishment Clause does so under a standard that is more sensitivethan the Speech Clause (and presumably the Free Exercise Clause).242 Governmentmay violate the Establishment Clause, at least in some contexts, simply by creatingan environment in which there is social pressure to participate in a prayer or reli-gious observance.243 Under the Speech Clause, by contrast, the government does notunconstitutionally compel expression, even involving school children, unless itimposes concrete penalties for opting out.244239 Stephanie H. Barclay & Mark L. Rienzi, Constitutional Anomalies or As-Applied Chal-lenges? A Defense of Religious Exemptions, 59 B.C. L. REV. 1595, 1614–18 (2018).240 See, e.g., Lee v. Weisman, 505 U.S. 577, 587 (1992) (focusing an analysis of compelledprayer under the Establishment Clause).241 See id.242 See id.243 Id. at 586 (holding practice of prayer at school graduation ceremony unconstitutionalunder the Establishment Clause because of social pressure for audience to participate).244 See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 635 n.16 (1943) (noting the712 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677Professors Barclay and Rienzi are primarily concerned with religious compul-sions of the second type, where religious believers are required by general laws,such as anti-discrimination laws, to affirmatively act in contradiction of their re-ligious tenets.245 Whereas under Smith the Free Exercise Clause generally allowsgovernment to refuse religious accommodation without heightened scrutiny, theSupreme Court’s Speech Clause precedents, they argue, are more protective againstsimilar compulsory violations of conscience.246 They point to such cases as Woolleyv. Maynard247 and West Virginia v. Barnette,248 where the claimants had both re-ligious and speech-related reasons for refusing to obey compulsory regulations, andwhere the Court upheld their claims on freedom of speech grounds alone.249This analysis overlooks an element of compelled speech jurisprudence thatdistinguishes it from the more rigorous religious exemption model many religiousaccommodationists would prefer250: it is that the compelled behavior must qualifyobjectively as expressing a message or as interfering with the actor’s own inherentlyexpressive behavior. It is not enough under Speech Clause precedents that a claim-ant subjectively feels that the compelled behavior would send a message that theclaimant does not wish to send, or that the compulsion would strongly offend theclaimant’s conscience. In fact, the Supreme Court squarely rejected this interpreta-tion in Rumsfeld v. FAIR, where the Court held government could require lawschools to provide recruiting services to military employers notwithstanding theschools’ strong objection to military policies concerning gay service members andtheir belief that their cooperation in recruiting would express that they see nothingwrong with such policies.251 The Court rejected the law schools’ compelled speechclaim by finding, as a matter of law, that recruiting services are not inherentlyexpressive behavior.252 Accordingly, compliance with the Federal requirement toprovide recruiting services for military employers would not express a message inand of itself, nor would it interfere with the law school’s own expression.In cases where the Supreme Court has held that government violated the com-pelled speech doctrine, it has made the opposite finding: that cognizable expressionwas at issue.253 In Barnette and Wooley, the government sought to require individualsstate may generally lead students to recite the Pledge of Allegiance and salute the Americanflag, provided that conscientious objectors may opt out).245 Barclay & Rienzi, supra note 239, at 1614–18.246 Id. at 1617–18.247 430 U.S. 705 (1977).248 319 U.S. 624.249 Barclay & Rienzi, supra note 239, at 1617–18.250 E.g., id. at 1597–98 (arguing that the Religious Freedom Restoration Act may be jus-tified as a correction to the Court’s differing treatment of speech and free exercise, eventhough RFRA’s categorical strict scrutiny approach goes far beyond free speech methodology).251 547 U.S. 47, 64–70 (2006).252 Id. at 64–65.253 See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 634–35 (1943); Wooley v.Maynard, 430 U.S. 705, 713 (1977).2024] HARMONIZING SPEECH AND RELIGION 713to use specific words or specific patriotic gestures for the purpose of promoting agovernmental message.254 The laws did not incidentally affect private expression;their whole point was to compel expression and even did so in a content-basedmanner.255 There would be an analogous case under the Free Exercise Clause if, forexample, government required school children to participate in a daily prayer ritualor required driver license applicants to be baptized. To require forms of conduct thatare inherently religious, for the purpose of promoting religion, surely would violatethe Free Exercise Clause (as well as the Establishment Clause) by the same logicthat the compulsions in Barnette and Woolley violated the Speech Clause.Another way the government can violate the compelled speech doctrine is byrequiring additional expressive action as a condition of the claimant’s own expres-sive conduct. In some cases, this may require the government to exempt claimantsfrom general non-discrimination regulations, but the requirement remains that therelevant conduct must be inherently expressive. Thus, in Hurley v. Irish AmericanGay, Lesbian, and Bisexual Group of Boston,256 the Supreme Court held that itwould be unconstitutional to apply state public accommodation law to a privateparade such that the organizers would be required to allow a group representing gay,lesbian, and bisexual individuals to march in the parade. To support its conclusionthat this application of law would violate the Speech Clause, the Court examined thehistory of parades as expressive activity and the context of the particular parade todetermine that it qualified as inherently expressive conduct.257 The Court also foundthat the private groups’ participation in the parade, with accompanying banners andsigns, would constitute inherently expressive behavior.258It makes sense for the same principle to apply to the free exercise of religion,although the Court has not yet encountered such cases. What would be a comparablecase of compelled religious exercise to Hurley? The compelled behavior would needto be inherently religious (that is, involving a form of behavior that is traditionallyreligious or objectively recognizable as religious). Such a case would occur, forexample, if a state were to apply public accommodation law to the performance ofreligious rituals (say baptisms, sacraments, or religious weddings), thereby prohibit-ing organizations from discriminating in deciding whom may receive these. Whilesuch a concern may be far-fetched in the United States, this may be because statesalready understand that such an application of law would violate the Free ExerciseClause, notwithstanding Employment Division v. Smith. On the other hand, a com-parable compelled religious exercise problem would not occur in cases such asMasterpiece Cakeshop, where businesses that serve the public are prohibited fromdiscriminating among customers seeking non-religious services.259254 See Barnette, 319 U.S. at 632–34; Wooley, 430 U.S. at 715.255 See Barnette, 319 U.S. at 631–33; Wooley, 430 U.S. at 716–17.256 515 U.S. 557, 566 (1995).257 See id. at 568–70; see also FAIR, 547 U.S. at 63.258 Hurley, 515 U.S. at 568–70.259 See generally Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 584 U.S. 617 (2018).714 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677Tentative Recommendation: The Speech and Free Exercise Clauses should beinterpreted as prohibiting compelled behavior in a parallel manner. As a generalrule, the government may not compel an individual to perform an action that wouldobjectively be understood as expressive or religious. The principle does not applyto behavior that is only expressive or religious from the actor’s subjective perspec-tive, as this could implicate any regulation with affirmative requirements, such asany application of anti-discrimination rules.CONCLUSION: POSITIVE PLURALISM AND CALIBRATED JUDICIAL SCRUTINYI began with Justice Barrett’s suggestion to look to free speech jurisprudence toinform free exercise jurisprudence.260 This analysis aims to show that the compari-son is indeed useful and informative, and that it cuts both ways: speech jurispru-dence also can benefit by looking to the free exercise of religion. The freedom ofspeech and the free exercise of religion serve complementary purposes in theirprotection of individual freedom of thought and conscience. Society also benefitsfrom recognition of these rights, as they promote a pluralistic society, enhancingopportunities for all to learn and grow from each other. Where the freedom ofspeech and free exercise of religion are interpreted as parallel in their protections,this preserves the broad function of these freedoms as inclusive, inherent humanrights, rather than promote the misunderstanding that they are mere privileges forparticular interest groups.Comparing the freedom of speech and the free exercise of religion is more likelyto be constructive if one considers them in various applications within a frameworkthat is sensitive both to their common aspirations and the parallel problems theyraise for judicial scrutiny. It is easy to make facile comparisons between protectionsfor speech and religion for purposes of justifying nearly any position. For example,Justice Alito relied on speech jurisprudence to support his argument for restoring theSherbert test for religious freedom,261 even though there is no rule comparable toSherbert for speech, while Justice Scalia compared speech jurisprudence to supportthe opposite position in Smith.262 Neither of the Justices gave serious considerationto how their respective positions would create new anomalies, or to how speech260 See supra Introduction.261 Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1916–17 (2021).262 Emp. Div. v. Smith, 494 U.S. 872, 886 (1990) (whereas speech jurisprudence usesheightened scrutiny to produce “equality of treatment and an unrestricted flow of contendingspeech” to use it to create a private right to ignore generally applicable laws would create a“a constitutional anomaly”). In a similar facile manner, the concurrence in Smith relied onspeech cases to support applying the Sherbert standard, id. at 902 (O’Connor, J., concurring)(“Our free speech cases . . . recognize that neutral regulations that affect free speech valuesare subject to a balancing, rather than categorical, approach.”), as had the Court in Sherbertv. Verner, 374 U.S. 398, 404 n.5 (1963).2024] HARMONIZING SPEECH AND RELIGION 715jurisprudence might adapt to the freedom of religion.263 For those who are genuinelyinterested in reconciling these two areas of jurisprudence and finding commonground, we can do better.I suggest several general lessons that may be drawn from a broader comparisonof free speech and free exercise jurisprudence, which may serve as neutral principlesfor harmonizing them more closely.First, while freedom from discrimination is a component of both freedoms, it isnot sufficient. Employment Division v. Smith has appropriately been criticized forsuggesting that government may enforce neutral secular regulations with indiffer-ence to how they affect religious freedom.264 Indifference is not a guiding norm forthe freedom of speech, nor should it be for the free exercise of religion.Fortunately, the principle of indifference (or religion-blindness) has not guidedthe Supreme Court’s enforcement of religious freedom since Smith.265 While theCourt has not formally overruled Smith, it has expanded its exceptions significantlyin ways that suggest a more active, solicitous paradigm.266 With credit to PaulHorwitz and John Inazu, let’s call this positive pluralism.267Positive pluralism suggests that government actors (indeed, all of us) shouldstretch to accommodate and value differences between groups and individuals onsuch deeply felt subjects as religion, politics, morality, and social progress, recog-nizing such differences as opportunities for growth and national strength.268 We maynot only live peacefully in a society with deep differences, in many ways we arebetter for it.269 While pluralism does require limits to what is embraced or tolerated,the limits are intentionally wide, set with due appreciation for the significant socialand individual benefits of practicing respect for diversity, even where this requireswork, discomfort, and patience.270263 In fairness, Justice Scalia did argue in Barnes v. Glen Theatre, Inc., 501 U.S. 560(1991), that the Court should follow Smith’s lead for purposes of interpreting the SpeechClause, specifically by overruling the O’Brien test insofar as it protects expressive conduct,id. at 579 (Scalia, J., concurring). This only shows, however, that his comparison to speechjurisprudence in Smith was deliberately selective.264 See, e.g., Jesse H. Choper, The Rise and Decline of the Constitutional Protection ofReligious Liberty, 70 NEB. L. REV. 651, 686–88 (1991).265 See Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2074 (2019) (“The ReligionClauses of the Constitution aim to foster a society in which people of all beliefs can livetogether harmoniously . . . .”).266 See Margaret Smiley Chavez, Employing Smith to Prevent a Constitutional Right toDiscriminate Based on Faith: Why the Supreme Court Should Affirm the Third Circuit inFulton v. City of Philadelphia, 70 AM. U. L. REV. 1165, 1175–81 (2021).267 Paul Horwitz, Positive Pluralism Now, 84 U. CHI. L. REV. 999 (2016) (reviewing JOHND. INAZU, CONFIDENT PLURALISM: SURVIVING AND THRIVING THROUGH DEEP DIFFERENCE(2016)).268 Id. at 1001–02.269 See id. at 1016–18.270 See id. at 1016–17.716 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677By this view, the Free Exercise Clause protects religious liberty as a positivegood, a “lustre of our country,”271 not merely as correction to government’s ten-dency to target minorities. There is no better way to explain such cases as Hosanna-Tabor, Tandon, and Fulton, each of which protects religious liberty in the face ofneutral, secular regulations, and, in doing so, requires government to do more thanrefrain from anti-religious discrimination.The same applies to the freedom of speech. While all recognize that those whospeak and express themselves must act within reasonable regulatory bounds, speechjurisprudence does not suggest that government may regulate with indifference tothe value of speech.272 As when government accommodates parades on city streets,creates new public forums, zones to accommodate expressive activities within landuse schemes, or acts to facilitate communication on the internet and other technolog-ical mediums, government acts within the best of constitutional traditions when itexpands the range of permissible opportunities for speech and encourages participa-tion. In modern systems of pervasive regulation, we may even say it is affirmativelyrequired to do so.273Second, judicial enforcement of the First Amendment must often defer to otherbranches of government and their primary role in determining the costs and benefitsof regulatory systems that serve as the background conditions for First Amendmentliberty. It is one thing to recognize that the First Amendment requires governmentto appreciate the value of speech and religious freedom when regulating behavior;it is quite another for courts to take over measuring the costs and benefits of anyregulation that affects the exercise of First Amendment liberty, which is all regula-tion. Pluralism allows individuals and groups to decide for themselves what conductis religiously significant; it also means that they may decide what actions they valueas expressive; but this should not mean that the First Amendment empowers courtsto rigorously scrutinize the costs and benefits of regulation that interferes withsomeone’s self-defined religious or expressive conduct.The Court was therefore correct in Smith to reject the overzealous principle thatstrict scrutiny applies to any regulation that burdens religion.274 The Court’s observa-tion in Smith that the law cannot sustain meaningful strict scrutiny for all regulatory271 See generally JOHN T. NOONAN JR., THE LUSTRE OF OUR COUNTRY: THE AMERICANEXPERIENCE OF RELIGIOUS FREEDOM (2000) (giving a positive historical account of religiousliberty in America). Noonan’s title draws from James Madison’s Memorial and Remon-strance Against Religious Assessments (1785), wherein Madison advances various argumentsfor religious liberty, including that it accords with America’s offer of asylum to the oppressedof the world, “promising a lustre to our country.”272 See Horwitz, supra note 267, at 1008–10.273 See Dawn C. Nunziato, The Death of the Public Forum in Cyberspace, 20 BERKELEYTECH. L.J. 1115, 1117, 1143–50 (2005) (arguing that the First Amendment imposes an af-firmative obligation on the government to provide public forums).274 Emp. Div. v. Smith, 494 U.S. 872, 878 (1990).2024] HARMONIZING SPEECH AND RELIGION 717conflicts with religion has not been refuted.275 As the Court stated, “[a]ny societyadopting such a system would be courting anarchy.”276 True, we may trust that courtswould not allow anarchy to ensue even under a general regime of strict scrutiny, butthis leads inevitably to another problem that is only slightly less troubling: preferen-tial enforcement of religious freedom and selective rewriting of regulations by thecourts. A legal regime that purports to apply strict scrutiny to all regulatory conflictswith religion invites courts to decide, either case-by-case277 or through pragmaticcategorization,278 which religious tenets it finds more sympathetic, and whichregulations it finds to be unimportant enough to allow exceptions. In short, it placesthe Supreme Court in the role of managing the entire corpus juris—state andfederal—and its relationship to the limitless varieties of religion. Even if courtswould do a good job of crafting a sensible balance between religious liberty and allthe regulatory policies that affect it, this interpretation of the Free Exercise Clauseempowers courts far too much.For the same reason, the Court has appropriately limited the range of heightenedscrutiny under the Speech Clause, even where the issue is whether to apply theweaker O’Brien test. Courts do not apply O’Brien-level scrutiny to protect any ac-tion that an actor deems expressive from incidental regulatory burdens, but apply suchscrutiny only to protect traditional modes of expression or conduct that conveys aconcrete message in context.279 While ideally the government should recognizepotential value in all non-destructive forms of expression or conscientious action,and consider accommodating expressive conduct broadly where feasible, the Court’suse of heightened scrutiny to force such accommodations is wisely more selective.Third, courts may navigate effectively between the extremes of excessive ju-dicial scrutiny or excessive deference through the use of well-calibrated thresholdrules. Threshold rules are those that determine when courts should apply heightenedscrutiny (or categorical treatment) to a given conflict, and if so, what level of scru-tiny to apply.280An effective threshold rule aims to do two things: (1) identify types of regulationsthat, in form or substance, indicate an unacceptable likelihood that the regulators didnot give adequate weight to the constitutional interests at stake; (2) distinguish such275 Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1876–77 (2021).276 Id.277 E.g., Wisconsin v. Yoder, 406 U.S. 205, 209–13 (1972) (praising the Amish’s valuesand way of life, even taking expert testimony on the subject, in the course of upholding theirreligious freedom claim under the compelling interest test).278 E.g., Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 451 (1988) (findingthe Free Exercise interests of Native Americans to access sacred lands be non-cognizable,even though the proposed government action “could have devastating effects on traditionalIndian religious practices,” because the matter concerned the government’s use of its own land).279 See supra Section II.B.280 See John Galotto, Strict Scrutiny for Gender, Via Croson, 93 COLUM. L. REV. 508, 509(1993).718 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:677regulations from the more general body of laws that reflect standard policy judg-ments to which courts should defer. Threshold rules operate as judicial heuristics ina system in which courts know they lack the tools or authority to assess every varia-ble that is relevant to achieving the proper constitutional balance of regulatory orderand individual liberty.281 By relying on heuristic threshold rules, courts are able tocorrect government’s more obvious abuses of regulatory power in relation to FirstAmendment norms while leaving primary regulatory authority to those who areelected to exercise it, and also reminding and incentivizing regulators to respectindividual liberty and constitutional pluralism in the balance.282 Reliance on clear,pre-established threshold rules has the additional advantage of checking judicialbiases and giving consistency and predictability to the enforcement of First Amend-ment norms.One of the more useful threshold rules in speech jurisprudence, for example, isthe principle that content-based regulations of speech are presumptively subject tostrict scrutiny.283 When acting as a regulator of speech, there is seldom justificationfor the government to discriminate on the basis of content, even if it is allowed to actin other capacities to promote some ideas over others.284 Content-based regulationstypically reflect insufficient appreciation for the value of diverse speech, especiallyof speech that the government disagrees with, and so raises an unacceptable likeli-hood that government has over-regulated speech.285 Understanding the threshold rulefor content-based speech regulation as a judicial heuristic also shows why it isinsufficient (it does not represent the whole of the meaning of the Speech Clause)for there are other forms of regulation that are likely to undervalue the freedom ofspeech. The same could be said to justify the free exercise rule that religiouslydiscriminatory regulations are subject to strict scrutiny, and why it is insufficient.The challenge, of course, for both the freedom of speech and the free exerciseof religion, is to identify those additional threshold rules, beyond anti-discriminationrules, in a way that preserves the proper relationship between all branches of gov-ernment. There is plenty to debate about what additional threshold rules are requiredto adequately protect the freedom of speech and the free exercise of religion, andwhat rules would expand the judicial role too much. As this analysis has shown both281 See R. Randall Kelso, Justifying the Supreme Court’s Standards of Review, 52 ST.MARY’S L.J. 973, 1027–28 (2021).282 See id.283 See, e.g., Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).284 See id. at 172.285 As I have argued elsewhere, this rule does not reflect an ideal that government shouldbe neutral or indifferent toward the marketplace of ideas (there are too many exceptions tothe rule for this to be tenable, and there are too many ways in which government can posi-tively influence the marketplace of ideas to make this desirable). Fee, Speech Discrimination,supra note 17, at 1136–48. Instead, it is a sound rule of judicial review because it catchesregulations that reflect inadequate appreciation for the value of competing ideas in societyand would threaten to stifle too much speech if allowed to go unchecked. Id. at 1169–70.2024] HARMONIZING SPEECH AND RELIGION 719speech and free exercise jurisprudence include protections beyond anti-discrimina-tion rules. What is difficult to justify, however, is why these rules do not moreclosely match. If a regulatory feature (such as a system of individualized exemp-tions) indicates the need for strong judicial review for Free Exercise purposes,presumptively it should justify the same level of judicial review for freedom ofspeech purposes.The comparison I have offered reveals ways to protect speech and religiousliberty in a more principled and inclusive manner by presumptively adopting parallelrules across both areas of jurisprudence. The comparison also provides a usefulcheck against the excessive use of heightened scrutiny, or otherwise announcingstrong First Amendment protections that cannot be sustained as broad neutralprinciples. A useful test for any proposed rule that protects speech or free exercisewould be to ask whether the equivalent rule would be manageable for both spheresof First Amendment liberty.

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