The free exercise cases

The Supreme Court's consistent approach to free exercise has held that religious belief is absolutely protected, but religious conduct is subject to duly enacted laws. Why not follow the logic of libertarianism and extend the absolute freedom of belief to conduct? It is obvious. While beliefs harm no one, conduct can. In the words of Thomas Jefferson, “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg.”

This is a fundamental principle that unites the Free Speech and Free Exercise Clauses, and that rests on the republican form of government at the base of the constitutional order. John Stuart Mill explained it as follows: “The fact of living in society renders it indispensable that each should be bound to observe a certain line of conduct toward the rest.” Once one understands the no-harm rule and its distinguished pedigree, autonomy from the law for religious believers and organizations appears foolhardy.