Content area
Full Text
[When] principles break out into overt acts against peace and good order [it is the] rightful purpose [] of civil government, for its officers to interfere.
Thomas Jefferson[dagger]
[F]or such actions as are prejudicial to the interests of others, the individual is accountable, and may be subjected either to social or to legal punishments, if society is of opinion that the one or the other is requisite for its protection.
John Stuart Mill[double dagger]
Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a, democratic government.
Employment Division v. Smith§
I. INTRODUCTION
The only legitimate goal of a republican form of government is the public good, and the Constitution, including the Bill of Rights, sits firmly under this horizon.1 If the public good is the end of government, all laws should contribute to the public good. The question this Article addresses is how to incorporate religious liberty into a system that is aimed at the public good. This Article situates the religion clauses in this constitutional context and answers that two principles define the parameters of religious liberty: (1) religious belief must be absolutely protected, and (2) religious conduct that harms others must be capable of being regulated. This second concept, which I call the no-harm rule, has become entrenched in Anglo-American culture after centuries of experience with religion as sovereign, separate ecclesiastical courts and legal spheres, and legal immunities. Each of those regimes has been rejected, because religious entities have not been unwavering servants of the public good.
This Article's focus on regulating harm caused by religious entities may well seem perverse in the United States, because "[t]here is a long history in this country of religion being reduced to Sunday school morality in service of the common good."2 The reality, however, is that religious entities, like all other human institutions, are capable of great harm to others,3 and the fact that their conduct is religiously motivated does not alter the fact of the harm. Like every other human institution, they are capable of being tempted to abuse their power. Fortunately, the Framers were a pragmatic and disillusioned group that instilled into the United States' republican form...