Free speech is not enough

In the 1990s the U.S. Supreme Court decided a handful of religious liberty cases on the basis of the First Amendment’s free speech clause. The most significant of these was Rosenberger v. University of Virginia (1995). In that case, the University of Virginia had denied funding to a religious student publication called Wide Awake. The case began with a focus on the establishment clause, and it might have been based on the free exercise of religion—but it ended up being about free speech. The court ruled in a 5-4 decision that once the university created a policy to fund student publications, it had created a “limited public forum” for speech. Within such a forum the university could not discriminate on the basis of the content of the speech. The free exercise clause was largely ignored. In the ensuing years several other cases followed a similar pattern.

At the time, many considered these cases victories for religious groups. The free speech strategy held up to secular arguments against special treatment for religion—treating religion as speech made it just like any other kind of expression. Evangelicals, who were invariably the plaintiffs in these cases, argued that all we want is that religion be treated like any other form of speech. We’re not asking for special treatment. One Southern Baptist leader I interviewed even suggested that prayer in schools is in part a free speech issue for students. Prayer is speech, he told me.

But some of us worried that using free speech to settle what might have been considered free exercise cases would come back to haunt religious groups. Would the free exercise clause fall into disuse like the Ninth Amendment, becoming a relic of a former time? In my recently released book Baptists in America, co-authored with Thomas Kidd, the term free speech appears only once, and we use it only by way of comparison to how the Supreme Court has treated free exercise of religion. By contrast, the terms religious liberty, religious freedom, and free exercise of religion appear almost 100 times.