Religious-right lawyers shifted strategy from Free Exercise to Free Speech arguments

Evidence

Starting in the 1980s, Jay Sekulow and others on the extreme wing of the religious right began to take a curious line of argument in Establishment Clause cases. In most such cases, there is a distinction between the First Amendment right to the free exercise of religion—such as a public school teacher’s right to pray—and the First Amendment prohibition on the establishment of religion—such as an attempt by that public school teacher to lead students in prayer during class. Rather than invoke the Free Exercise Clause, however, Sekulow and his allies suddenly began to appeal to the Free Speech Clause of the First Amendment. In an argument that formed the tip of the legal spear aiming at the Establishment Clause, they asserted that religion is just speech from a certain, religious point of view. And to prohibit speech of any type on the basis of viewpoint is, by definition, to violate the Free Speech Clause. — Katherine Stewart, The Power Worshippers, 859

Categorization

• QUESTION: Why does speech framing work where free-exercise framing wouldn’t? The mechanism is viewpoint discrimination - worth understanding deeper.
• XREF: connects to: Speech-based reasoning grants religion a unique super-category never excludable — Katherine Stewart, The Power Worshippers: Inside the…, 868; Religious establishment was legally redefined as private individual speech — Katherine Stewart, The Power Worshippers: Inside the…, 839; Christian conservatives now justify discrimination via rights language rather than morality — Philip S. Gorski and Samuel L. Perry, The Flag and the Cross: White Christian…, 292 (+1 more)

Broader Connections

• Christian conservatives now justify discrimination via rights language rather than morality #expands (0.78) — Philip S. Gorski and Samuel L. Perry, The Flag and the Cross, 292