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Copyright (c) 2011 University of Detroit Mercy School of Law
University of Detroit Mercy Law Review

McELROY LECTURE: Sex, Atheism, and the Free Exercise of Religion

Spring, 2011

University of Detroit Mercy Law Review

88 U. Det. Mercy L. Rev. 407


Douglas Laycock*


Religious liberty is often controversial in specific application. But at least in the United States, it has long been popular in principle. It was not always so, and it may be changing back again. For the first time in nearly 300 years, important forces in American society are questioning the free exercise of religion in principle - suggesting that free exercise of religion may be a bad idea, or at least, a right to be minimized.

I. The Historic Debate over Religious Liberty
Let me start by briefly reviewing the debate from the last time religious liberty was at issue in principle. When the Reformation brought alleged heresy on a national and even continental scale, neither side was ready for religious liberty. Both Protestants and Catholics assumed that they were entitled, and obligated, to enforce their faith where they had the power to do so. The resulting persecutions and wars of religion consumed Europe at intervals through much of the sixteenth and seventeenth centuries. 1

All this human suffering led sensible people to question the premise: Why not let each individual decide for himself about religion? First came the idea of toleration: the state would still designate the true church and support it in various ways, but the state and the true church would tolerate dissenters. The great American improvement on toleration was religious equality, and therefore, disestablishment. Rather than one official church that tolerated some or all of the others, religious liberty was recognized as ...
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