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Should there be a Heckler’s Veto Analogue in Free Exercise Jurisprudence?

The First Amendment protects the right to free exercise of religion. The Supreme Court, and consequently the lower federal courts, recent rulings on Free Exercise clause cases demonstrate a majority of the presiding judges on the Court believe religious practice deserves strong protection under the clause. Cases like Kennedy v. Bremerton School DistrictFulton v. City of Philadelphia, and Roman Catholic Diocese of Brooklyn v. Cuomodemonstrate this shift towards greater protection of religious freedom. But could this protection go farther?

The Heckler’s Veto prohibits government restriction of speech due to the listener’s actual or anticipated hostility to that speech. Under this rule the government cannot deny a permit application for a speech or rally, or prematurely end that rally, due to the hostile reaction of the crowd. Unfortunately, courts apply no analogous rule in the freedom of religion cases.

In the current political climate religious organizations are targeted daily. One need look no further than the rising Islamophobia and antisemitic demonstrations throughout October 2023, or the attacks on Christians for their opposition to abortion or gay marriage. Recognizing this real hostility to religious organizations it seems that the government should take extra care to protect, or at least not allow the “bully pulpit” to dictate, its decisions concerning religious organizations.

However, too often the opposite occurs. Imagine a religious organization buys property in a neighborhood from the city or applies for a permit. The city agrees to sell or issue the permit. Then the residents, due to their personal objections to that religious organization’s beliefs or practices, pressure the government to rescind the sale or permit. Although not allowed under our current laws, the residents are permitted to pressure the government to rescind the sale or permit even though religious animus was the motivating factor to how the decision was made.

To ensure that these persecuted groups can freely worship our laws must ensure that the pressure by those with hostility towards religion cannot influence governments to act in a way tainted by that hostility. The Kennedy case voiced concern with the government’s use of the Establishment Clause as a “modified heckler’s veto.”[1] Moreover, the conclusion appears to take a wider view in stating that neither protected speech nor religious exercise give way to a Heckler’s Veto.[2] In a society with such great division, courts should embrace this reasoning and not allow the treatment religious organizations receive from government to be dictated by the loudest opponents of that religion. 

About Dalton + Tomich

Established in 2010, Dalton + Tomich PLC is comprised of religious liberty, land use, denominational trust law, and business law attorneys. Learn more about our services at https://www.daltontomich.com/.

This blog was authored by a post bar law clerk, not an attorney. While we strive to provide informative content, this post should not be considered legal advice.

[1] Kennedy v. Bremerton School District, 142 S. Ct. 2407, 2428 (2022).

[2] Id. at 2432.

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