John Kearnes

Department of Criminal Justice, Social and Political Science
Armstrong Atlantic State University
Savannah, GA 31419
kearnejo@mail.armstrong.edu

Prepared for The Southern Political Science Association Meeting,
Panel: "The Court, Religion and the First Amendment
The Marriott, Savannah, GA, Nov. 7-9, 2002

Law, which is word dependent shares a fundamental characteristic of ordinary language, it too must be a ready instrument for the needs of society. The conceptual reigning metaphor for law is that it is a bulwark of freedom a defensive works to preserve order against the onslaught of chaos. It is like a dam keeping out the torrents of evil from destroying everything. We have this wall so that we can labor at improvements in the human condition like justice, freedom, pleasure, and knowledge. In this controlling concept about law there is "the assumption that law must first be ensured before the establishment of justice can begin" (Ball 1985, 23).

Lakoff and Johnson (1988), and Ullman (1966) have described the intricate relationship between metaphor and language:

1. Human thought is largely metaphorical. "Metaphor is not just a matter of language, that is, of mere words. . . . human thought processes are largely metaphorical." (Lakoff, Johnson 1980, 6)
2. Metaphors can create new realities because they structure our conceptual system with consequential changes in our activities.
3. Since metaphors hide many aspects of reality, we have inconsistent metaphors for a concept in order to comprehend the details of our existence.
4. Consistency across metaphors is rare but coherence is typical. Metaphorical entailments link the structure of a single metaphor.
5. A metaphor will always highlight some aspect of a concept while hiding others. That is why we choose the metaphor to compare what it is like not to what is different.
6. Metaphors do not state truth but give an understanding of reality and experience. "Metaphors are basically devices for understanding and have little to do with objective reality. . ." (Lakoff, Johnson 1980, 179, 184)
7. Meaning depends on understanding. "There is no such thing as a meaning of a sentence in itself, independent of people. When we speak of the meaning of a sentence, it is always the meaning of the sentence to someone. . . ." (Lakoff, Johnson 1980, 184)
8. The more a word or metaphor is used the more different meanings it acquires until its utility to convey precise meaning is diminished. (Ullman 1966, 7)

The Supreme Court's tropes for freedom of speech are premised on an assumption about the proper relationship between a democratic government and the individual. It is this same assumption about the free exercise of religion that makes it possible for the Court to use the entailing speech metaphors for policy choices on the free exercise of religion.

A survey of the Court's freedom of speech cases yields the following general metaphors used by the Court. It is not the purpose of this paper to trace their history as ideas, but it is important to show how they entered the lexicon of the Court's opinions as a context for understanding their linkage and ability to shape and limit our concept of freedom of speech as a democratic value. (3) Freedom of speech involves:

Expression and the Struggle to Limit Harm

Charles Schenck distributed a seditious pamphlet and was convicted for obstructing the draft under the 1917 Espionage Act. Deciding the case a few months after the close of World War I, the Court first articulated the "clear and present danger test." Justice Holmes writing for the Court reasoned that a state of war justified his punishment for expression, which would have been, protected speech in peacetime (Schenck v. U.S. 249 U.S. 47, 1918).

Holmes's argument depended on a conflagration metaphor. "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic"( Id. at 52). What is not said by Holmes is that if the shouting had been true, the same panic and ensuing deaths would probably have happened. What is hidden by this metaphor is that words true or false can have a destructive force, and that is why they should be constrained. Speech can bring harm to the legitimate exercise of government power so that is why you can limit speech. "Nonetheless, with its emphasis on the destructive potential of false speech, the decision stands as a good example of the kind of decision likely to emerge from a Court that thought in terms of a battle between truth and falsehood (Charisse n.d.,5)."

Speech in general shared with false speech the ability to bring harm. Conceptually the metaphor projects that false speech brings harm therefore it is bad, and that any speech that brings harm is like false speech therefore it too must be bad. In the struggle between good and evil, the useful and harmful we must choose the good and useful whether or not it is false or truthful. In war, the struggle for survival is what is good, truth or opinion that hinders the battle for survival is therefore harmful whether true or false.

This is also illustrated in the area of liable where the struggle between truth and falsehood enters the marketplace. The Court on this topic has differentiated between the more public and private aspects of expression. It is because of the dangers of self censorship and the commitment that public debate should be uninhibited robust and wide open that the burden of proof is on the plaintiff to prove that the statements are false when it involves a public issue, the media, or a private citizen (Philadelphia Newspapers Inc. v. Hepps 106 S. Ct. 1558 1986).

Freedom of Expression as a Marketplace of Ideas

A few months after Schenck the Court decided a similar case Abrams v. U.S. 250 U.S. 616 (1919) but strangely this time Justice Holmes dissented. The majority had applied the clear and present danger test as Holmes had formulated it in Schenck, but Holmes's view on freedom of expression had changed. He found himself "dissenting against himself"
(Cole 1986, 883).

Why Holmes changed has been debated by constitutional historians. (4) Holmes' reflection led him to see the issue of freedom of expression in terms of a different metaphor, one that has become synonymous with freedom of speech cases. He attacked the struggle concept of speech thereby reshaping the concept so that words were not automatically sources of harm to be combated, but items of exchange for consumers in a market place of ideas.

Freedom of speech was not a struggle between truth and error. He observed that "time has upset many fighting faiths." The good is not to be reached in the supposed superiority of truth in a struggle with falsehood, but by a free trade in ideas whether true or false. "The best test of truth is the power to get itself accepted in the competition of the market" (Abrams v. U.S., 250 U.S. 616, 630, 1919). Truth and falsehood should not seek to silence each other, but the competition is to be a process of persuasion between buyers and sellers of ideas. A marketplace functions on the basis of supply and demand. People rested their choice between truth and error on persuasion not combat. Ideas were to operate as an exchange between those who want them, and those who have them for sale. The metaphor stems from commercial life. Justice Douglas aptly used this metaphor in his dissent in Dennis v. U.S. (1950) where he described American communists as "miserable merchants of unwanted ideas; their wares remained unsold" (Dennis v. U.S. 341 U.S. 494, 589 1950).
The customer decides the legitimacy of the idea not the government. The role of government now becomes to protect the process not the outcome. Bad ideas like shoddy goods will be appraised by the consumer, the government must insure only that the market functions fairly.

"The marketplace metaphor is in one sense, the inverse of the struggle analogy. In the struggle it is the end result alone that matters; in the marketplace it is the process itself that benefits society. At the same time, in the struggle for verity the soldiers are less important than their victories in truth's name. But in a marketplace buyers and sellers are as important as the commodities they exchange." (Charisse n.d.,6)

"A marketplace is also a voluntary institution. In the struggle between truth and falsehood, one side must emerge victorious. In a marketplace, however, one can refuse to purchase any of the commodities offered for sale." (Charisse n.d.,6). In the struggle metaphor there are winners and losers with serious consequences. In the marketplace metaphor the end result is not as important as the process itself. Speech purchased does not have a serious consequence, buyers will always choose wisely, they are rationale in their interests. Shoddy ideas are not advantaged in this market. All compete on the same terms, it is therefore not the role of government to tilt the exchange or to worry about the outcome, a person's rationality will ultimately take care of that.

This Holmesian optimism no doubt reflected his times, a belief in the sufficiency of markets, a secularization of values that characterized them as preferences not absolutes, and an abiding faith in the democratic process to promote equality. All have the ability to discern what is in their best interest, and when aggregated this is the best interest of society as well. You don't have to think of expression in terms of the harm that may be possible, but in terms of the benefits. Free markets are beneficial because the best product will surface and prevail. It will be a judgment of the consumer. Truth or falseness is therefore not what matters but the keeping of a process so that consumers may determine their own good, which turns out to be good for society. The end of the state is to ensure choice, not to determine what is good that is why we have markets. The marketplace metaphor assumes the inherent benefits of speech, the struggle metaphor assumes the inherent harm. What is hidden by both tropes is that the unintended consequences of speech may obviate its intent and destroy the democratic process. They are linked by the concept of competition but in different forms. One assumes that the consequences for the loser are not serious and that the outcome has a strong bias toward the good of all, while the other assumes that the consequences are serious and that those who are in a position to help must way in on the side of virtue.

The Public Forum as Representative Democracy

The place for democratic politics is designated as a public forum. Here expression serves the purpose of democratic governance where majorities must choose by voting. The place and purpose of speech is resolved in terms of the listener or decision maker. The pristine American example of this direct democracy is the New England Town Hall meeting where the local citizenry turned out to hear proposals and discussion on the business of the town and vote on the matter.
The marketplace metaphor underwent a change to accommodate the analogy of speech as a public meeting. Here the function of speech became to inform the citizen who must make a choice on public policy. The meeting is run by a chairperson whose job it is to funnel expression to this end. This shift of meaning for freedom of expression was introduced by Justice Brennan in a concurring opinion in Lamont v. Postmaster General, 381 U.S. 301 (1965). Brennan tweaked the marketplace analogy to assert that the real value was the right of the listener to receive expression. "I find the right to receive publications is . . . a fundamental right . . . . It would be a barren marketplace of ideas that had only sellers and no buyers"(Id. at 308).

Although Brennan uses the marketplace trope, his conclusion that customers should have a right to receive something is not a free marketplace made of willing sellers and willing buyers. In Brennan's version if you have people as sellers of ideas you also need to round up other people and put them in the marketplace so they can hear the pitchman. But in a more typical marketplace buyers have a right to seek information, not a right to receive it (Charisse n.d.,8).
Brennan was an admirer of Alexander Meiklejohn who was an ardent advocate of limiting freedom of speech to democratic governance, see Brennan. 1965. "The Supreme Court and the Meiklejohn Interpretation of the First Amendment," Harvard Law Review 79:1. It seems that Brennan had borrowed one of the elements of Meiklejohn's metaphor, the town hall meeting. Here the chairman limits the freedom to speak to what is relevant to the citizen's need to decide. No one has a right to monopolize the debate, there is no unlimited right to speak, rather "the point of ultimate interest is not the words of the speakers, but the minds of the hearers. The final aim of the meeting is the voting of wise decisions" (Meiklejohn 1948, 22-23). For Meiklejohn the essential purpose of the First Amendment "is not that everyone shall speak, but that everything worth saying shall be said" (Id. at 25). The purpose of speech is self-government. That is why the audience has a right to hear what is relevant to their vote.

For Brennan the marketplace was not simply a gathering place but a more structured environment. It took on at least one of the aspects of a town hall meeting. What became important were not only the rights of the speakers but also the rights of listeners.

In Red Lyon Broadcasting v. F. C. C. 395 U.S. 367 (1969) Justice Byron White writing for the majority, although juxtaposing a marketplace and struggle metaphor, asserted that it is "the right of the viewers and listeners not the right of the broadcasters which is paramount" (Id. at 390). In this case you had a more structured environment the physical limits of the airwaves that required a guardian to limit sellers of ideas in favor of listeners. The transmutation of marketplace as a economic metaphor to a public forum structured for public business changes the underlying value of freedom of expression. The meeting forum requires a guardian, chairperson, to shape speech to the role of the listener as a decider of public policy.

The meeting metaphor also limits expression to what has political utility. This is fundamentally at odds with the use of public authority as a guardianship for the mind (Thomas v. Collins, 323 U.S. 516, 545 1944). It confines the role of speech to politics in a structured way by letting the state determine what is political.

The doctrine of the public forum was developed by the Court to deal with the problem of when does the First Amendment give individuals the right to use government property for expressive activity. The concept attempted to measure the degree to which government property was a marketplace for ideas. The First Amendment generally serves society by promoting "uninhibited, robust, and wide-open" debate about matters of public importance ( see New York Times Co. v. Sullivan 376 U.S. 254,270 1964). The concept of a public forum is rooted in the notion of the New England town hall meeting, where speech serves one special purpose governance, not all purposes. What type of access to public property is permitted under the First Amendment since not all public property would be appropriate for debate or expressive activities? The Court has come up with some general classifications for this purpose:

1. "Quintessential public forums." This includes places, "which by long tradition or by government fiat have been devoted to assembly and debate," like parks, streets, and sidewalks (Perry Education Assn. v. Perry Local Educator's Assn. 460 U.S. 37, 45 1983). These are natural places that have been used historically for expressive activities. In these places "expressive activity will rarely be incompatible with the intended use of the property" (Cornelius v. NAACP Legal Defense and Education Fund, 105 S Ct. 3439, 3457 1985)

A traditional public forum is property that has as its principal purpose the free exchange of ideas. Streets and parks "have immemorially been held in trust for the use of the public and, time out of mind, have been used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions" (Hague v. Committee for Industrial Organization, 307 U.S. 496, 516 1939). Public forums are created on government property must be made intentionally not simply by public access (Cornelius v. NAACP Legal Defense and Education Fund, Inc. 473 U.S. 788, 802 1985).

2. "Limited public forums." These consist of government property that is opened for expressive activity for a limited amount of time, or limited class of speakers, or on limited number of topics. Here the government, not history or tradition determines that the activity is compatible with the normal use of the property (Heffron v. International Society of Krishna Consciousness, Inc. 452 U.S. 640 1981; Widmar v. Vincent 454 U.S. 263 1981; Madison Joint School District v. Wisconsin Employment Relations Commission 429 U.S. 167, 1976).

3. Nonpublic forums. This would be property that is not compatible with expressive activity. Government may allow access by outside speakers but only to fulfill the intended use of the property. Access to public forums can be limited by time place and manner, but not in respect to content. This must be viewpoint neutral. These are the analytical tools for the Court to balance the compatibility of expressive activity with the purpose of the government's property.
Justice White writing for the Court, "In a public forum, by definition, all parties have a constitutional right of access and the State must demonstrate compelling reasons for restricting access to a single class of speakers, a single viewpoint, or a single subject" (Perry Education Assn. v. Perry Local Educator's Assn., 460 U.S. 37, 57 1983). In writing for the dissent Justice Brennan believed that it was wrong to always hinge the Court's test as to whether public expression only occurs in a public forum. He believed that the First Amendment was a proscription against any form of viewpoint discrimination in any forum public or non-public (Id. at 961). Brennan would take the metaphor to mean public expression at any locale as long as it is compatible with that locale, should be protected even if it is not a public forum. He warned against the rigidity of confining public expression to public forums, because this would lead to suppression of public speech in locales even though it was compatible with activities in these locales.

Brennan would make public expression that is compatible with the activities of the locale protected by the First Amendment. This is a rose by another name, or a way of renaming space that does not have the traditional or purposeful function of the public's business. If the speech comports with the locale it should be protected. Under this rubric every place is a public forum if the speech is public and comports with the locale. The court would not go that far (Perry Education Assn. v. Perry Local Educator's Assn. 460 U.S. 37, 61 1983).

In Minnesota State Board of Community Colleges v. Knight 104 S. Ct. 1058 (1984) Justice O'Connor writing for the Court denied that the "meet and confer process" was a public forum and that under the First Amendment or the due process clause their was no right to be heard by the government, only a right to petition.
Justice Stevens dissenting argued that:
"the First Amendment does guarantee an open marketplace for ideas -- where divergent points of view can freely compete for the attention of those in power and of those to whom the powerful must account. The Minnesota statute places a significant restraint on free competition, by regulating the communication that may take place between the government and those governed." The realistic opportunity is limited not by time, place, or manner of communication, or even willingness to listen "but by reference to the identity of the speaker.". . . "The First Amendment does not permit any state legislature to grant a single favored speaker an effective monopoly on the opportunity to petition the government" (Minnesota State Board of Community Colleges v. Knight 104 S. Ct. 1058, 1074 1984).

It is one thing to say that the government may decline to hear views, but another to say that "those views need not be given even a fair chance to compete for the attention of government" (Id at 1085). The government may not restrict access to channels of communication if it is to discourage one viewpoint and to advance another. The majority, however, did not see this as viewpoint discrimination, but rather as a difference in status. The union not only has exclusivity for collective bargaining matters, but also it is the sole source for the collective views of the group that the union represents. Is it the duty of the government to hear all views? The state has taken on a duty to hear the majority through the meet and confer process where as it has no duty to hear all others and all others are not barred from making their views known in other forums. To the degree that the public forum is limited it is structured by its purpose for the status of those that speak.
It is interesting how Justice Stevens moves from the "uninhibited, robust, and wide open" debate of the unrestricted marketplace (see New York Times v. Sullivan, 376 U.S. 254,270 964) to a forum for collective bargaining where expression of views are to be restricted. Admitting that the marketplace metaphor does not mix with the idea of a limited public forum where viewpoint discrimination can not be made, to the differentiation as to status of the speakers, which results in discrimination, by viewpoint. It isn't what you are saying, it is who says it. The public forum as metaphor has more structure fitting the polity's purpose, of obtaining the majority's views. What is hidden is that it must also go beyond the purpose of the original status of collective bargaining. As a metaphor, public forum, delimits expression to the interest of majority rule.

The Court looks at tradition and the interest of the majority in deciding what is or is not a nonpublic forum. The Court decided that airports are nonpublic fora and that states may prohibit solicitation as a reasonable regulation but not ban leafleting (International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 1992; Lee v. International Society for Krishna Consciousness, Inc. 505 U.S. 830 1992).

When government employment is an aspect of the public forum metaphor, the Court engages in a balancing test resolving the interests of the employee as a citizen with the impact that expressive activity would have on the actual operations of the government (Pickering v. Board of Ed. of Township High School Dist., 391 U.S. 563 1968). In this function the Court decided that a total ban on honoraria for federal employees burdens their First Amendment rights (U.S. v. National Treasury Employees Union, 115 S. Ct. 1003 1995).

Underlying Metaphors for the Marketplace

The marketplace is a structural metaphor. It is primarily a place for a process that has as its purpose meeting the needs of people in terms of some product exchange. Struggle describes an activity for the purpose of competition. The public forum is also a place, but with the more limited purpose of governance for the public good. Even though the Court's uses the marketplace as an economic analogy, this metaphor is made to absorb the essential qualities of other metaphors. This triangulation enables to Court to use marketplace in several seemingly inconsistent ways, while reshaping the concept to fit the need of the problem.

Speech is about ideas. As a freedom it is a process of exchange that must be accomplished in some place. This exchange is competitive. As a struggle there are winners and losers. It is something imperfect that must be shaped into a forum that someone must guard so that speech accomplishes something worthwhile. All of these dimensions reflect some different aspect of the problem of speech in a free and democratic society. Even though the Court regards them largely under the same rubric, they emphasize different concepts and values. Depending on the nature of the problem, the justices turn the prism face of the marketplace metaphor to explicate their understanding of the value in question, and then place it on a continuum between order and freedom as aggregated by the Court. It is simplistic to say it is the nature of the problem that determines the test. Rather it is how the justices perceive the problem in terms of an underlying metaphor that is persuasive as to the value involved.

Metaphor and Freedom of Religion

The First Congress's intentions about the religion clauses were ambiguous. It is clear that the clauses were not intended to abolish Protestant establishments that existed in states, but to prevent the national government from imposing serious disabilities on religious dissenters, while still giving preeminent status to Protestant Christianity in the cultural life of the nation. Even when the formal state religious establishments died a natural death, it did not lead to a separation of public life from religion. Thomas Curry has argued that Americans of the founding era understood that separation of church and state was only at an institutional level and did not to prohibit general aid to religion (1986). Gerard Bradley argues that in the early American mind there was a fusion of nondenominational Protestantism and the needs of a republic government for a virtuous citizenry ("Imagining" 834-835).

Joseph Story writing in the nineteenth century described the religion clauses as expressing the general sentiment that "Christianity ought to receive encouragement from the state, so far as it is not incompatible with the private rights of conscience, and the freedom of religious worship" (1987, 700). Tocqueville observed that Americans "combine the notions of Christianity and of liberty so intimately in their minds that it is impossible to make them conceive the one without the other" (1990, 306). From the founding and through most of the nineteenth century the relationship between the government and religion was a type of de facto Protestant establishment, and therefore harm to the community's religious and moral sensibilities justified restricting individual autonomy ( McConnell "Origins," 1496). Americans saw no real need to cabin religion's public influence.

The Supreme Court in 1892 could say, "we are a Christian people, and the morality of the country is deeply engrafted upon Christianity" (Holy Trinity Church v. United States, 143 U.S. 457 at 457 (1892). That government could act to encourage the Protestant version of Christianity is very evident in the Supreme Court's decisions upholding antipolygamy legislation. So evil did polygamy appear that the Court could not imagine that it was motivated by sincere religious belief. It was described as "a barbarous practice . . . contrary to the spirit of Christianity and the civilization which Christianity has produced in the West" (Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 at 50 (1890). For the nineteenth century Court it was constitutionally proper to punish so called religious beliefs that offended the communities moral sensibilities that were informed by a defacto Protestant culture. The Court saw religious influence as being critical to the maintenance of civilized society. Religious practices that fell outside of mainstream Protestantism, would not be tolerated if they threatened Protestant morality on which it was presumed rested civilized society (Smolin "Cultural Conflict," 1070-71). Separation of church and state up through the nineteenth century was merely institutional, and did not include confining the public influence of religion. The reigning metaphor for church and state jurisprudence was that society should reflect the morality of a Protestant religious community.

These assumptions came under severe pressure in the early twentieth century by several influences including the growth of naturalistic approaches to science, the professionalization of higher education, and the rise of legal realism that saw the reemergence of an Enlightenment mentality (Purcell 1973). Under these influences religion emerged as a symbol of what was bad in society, whereas science was invested with what was best in society. There was also a concomitant shift in public philosophy, "from a religious to a secular theory of law, from a moral to a political or instrumental theory, and from a communitarian to and individualistic theory" (Berman 1993, 214). The progressive secularization of government and society was now seen as a positive and inevitable trend that would end the public influence of religion. Although controversial, secular society was now seen as a genuine option, whereas religion was seen as no longer an essential foundation of society but an obstacle to secular progress. This shift can be seen in the Court's establishment case, Everson v. Board of Education, 330 U.S. 1 (1947).

The Court in Everson considered whether the city should pay for bus transportation of children to parochial schools. The Court upheld the practice as constitutional by interpreting the establishment clause as requiring the absolute neutrality on the part of government between religion and nonreligion and also between religions. The decision closed with a metaphor from President Jefferson's letter to the Danbury Baptists that the establishment clause, "was intended to erect a 'wall of separation' between Church and State" (Smolin "Cultural Conflict," 1072).

The Court had signaled that the defacto Protestant establishment would be abandoned in favor of a philosophy of secular individualism. Government neutrality among different religious sects and the institutional separation of church and state were consistent with this defacto establishment, but the cultural and political division implied by the metaphoric entailments in a "wall of separation" were not. Secular neutrality posited a role for religion that was unconnected to public life. Whereas the founders and the nineteenth century had premised that religion was essential to civilized society, this secular neutrality suggested that government be completely detached from religious choices and that a secular society is preferable whereas a Christian America was repugnant. The bias of this neutrality metaphor was that government should be indifferent about the exercise of religious choice.

Contrary to the neutrality ideal of Everson (1947), Justice Douglas in Zorach v. Clauson, 342 U.S. 306 at 313-314 (1952) declared that, "we are a religious people who institutions presuppose a Supreme Being," this proved to be one of the last cases to rely on public piety assumptions to justify its decision. The Court shortly began to dismantle the Protestant defacto establishment in favor of strict neutrality based on secular assumptions. In public education the Court declared prayer in public schools unconstitutional (School District v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 599 (1962 ). It restricted the teaching of evolution (Epperson v. Arkansas, 393 U.S. 97 (1968). Most financial aid to parochial schools was unconstitutional (Lee v. Weisman, 112 S. Ct. 2649 (1992); Edwards v. Aguillard, 482 U.S. 578 (1987); Wallace v. Jaffree, 472 U.S. 38 (1985); Stone v. Graham, 449 U.S. 39 (1980). Although the Court confirmed practices such as Sunday closing in McGowan v. Maryland, 366 U.S. 420 (1961), religious holiday displays in County of Allegheny v. ACLU, 492 U.S. 573 (1989; Lynch v. Donnelly, 465 U.S. 668 (1984), legislative prayers in Marsh v. Chambers, 463 U.S. 783 (1983), and religious property tax exemptions in Walz v. Tax Commission, 397 U.S. 664 (1970) it did so on their secular value and the socially usefulness of religion in promoting diversity in society. One could have a public piety results, but only on the assumptions of secular individualism. The Court found itself awkwardly defending practices that largely benefited religion by arguing that they have secular motivations and effects. This mixing of metaphors to support the vestiges of a defacto Protestant establishment with strict secular neutrality modified the "wall of separation" to a "permeable membrane." Some things could go through if they could be desacralized.

The free exercise clause of the First Amendment has also experienced this morphing of metaphors. The Court began its free exercise jurisprudence with the belief-action doctrine, (Reynolds v. United States, 98 U.S. 145 (1878). The right to believe was absolute but not the right to act on ones religious beliefs. Unless religious action conformed to what is acceptable to the defacto Protestant culture, it was deemed outside the pale of socially acceptable behavior. In the 1960's and 1970's the Court moved to the compelling interest test, which did provide greater freedom for religious practice. In the 1990's in Employment Division v. Smith, 494 U.S. 872 (1990) the Court jettisoned the compelling interest test to resurrect the belief-action doctrine when the policy was not purposeful religious discrimination. The Court modified its assumption so that a religious action that was contrary to majoritarian values would have no constitutional exemption unless it was defensible by secular principles. The defacto majority was no longer general Protestantism, but secular individualism. Accordingly this left the free exercise clause with very little independent content.

The Conflict Between Free Exercise and the Establishment Clauses and The Desacralization of Religion

As originally read the religious clauses of the First Amendment were thought of as complementary provisions, the one protecting the right of belief, the other limiting government participation in religious affairs. The Court's modification of these clauses by incorporating the secular discourse of neutrality meant that government should not burden religion while at the same time requiring that religion should not be directly aided. This formulation carried with in it an inherent conundrum that government must end up aiding religion, if it is not to burden it. Therefore it may not be possible to promote the free exercise of religion without violating the establishment clause (Walz v. Tax Commission, 397 U. S. 664, at 668-669 (1970). Given this tension the Court has not indicated which clause should predominate, but rather if there is a potential conflict the court has opted to desacralize the free Exercise clause by incorporating it as a form of free expression and therefore a dual right both protected by the free exercise clause and the free speech clause. It is therefore more conformable to a set a of secular discourse to avoid the conflict by taking the by favor the side of this dualism as a free speech metaphor and thereby avoiding conflict with the Establishment clause. The entailment is the relationship between the individual and government. Free speech is the individual's quest for truth for their life and their decision about government. Desacralized religion is a private matter a personal truth for which government is not to skew the decision. Government's neutrality

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Story, Joseph. 1990. Commentaries on the Constitution of the United States. Eds. Ronald D. Rotunda and John E. Nowak. Carolina Academic Press.

Bradley, Gerard V. "Imagining the Past and Remembering the Future: The Supreme Court's History of the Establishment Claus," 18 Connecticut Law Review, 827 (1986).

Tocqueville, Alexis. 1990. Democracy in America. Ed. Phillips Bradley. Vintage Books.

McConnell, Michael W. "The Origins and Historical Understanding of Free Exercise of Religion," 103 Harvard Law Review, 1409 (1990).

Holy Trinity Church v. United States, 143 U.S. 457 (1892).

Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890).

Smolin, David M. "The Judeo-Christian Tradition and Self-Censorship in Legal Discourse," 13 University of Dayton Law Review, 345 (1988).

Purcell, Edward, Jr. 1973. The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value. University Press of Kentucky.

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Everson v. Board of Education, 330 U.S. 1 (1947).

School District v. Schempp, 374 U.S. 203 (1963)

Engel v. Vitale, 370 U.S. 599 (1962 )

Epperson v. Arkansas, 393 U.S. 97 (1968)

Reynolds v. United States, 98 U.S. 145 (1878)

Employment Division v. Smith, 494 U.S. 872 (1990)

Epperson v. Arkansas, 393 U.S. 97 (1968)

Lee v. Weisman, 112 S. Ct. 2649 (1992)

Edwards v. Aguillard, 482 U.S. 578 (1987)

Wallace v. Jaffree, 472 U.S. 38 (1985)

Stone v. Graham, 449 U.S. 39 (1980)

McGowan v. Maryland, 366 U.S. 420 (1961)

County of Allegheny v. ACLU, 492 U.S. 573 (1989)

Lynch v. Donnelly, 465 U.S. 668 (1984)

Marsh v. Chambers, 463 U.S. 783 (1983)

Walz v. Tax Commission, 397 U.S. 664 (1970)