The Associational Thesis: A New Logic for Free Exercise Jurisprudence
Paul C. Fricke, 53 How. L.J. 133 (2009)
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This article offers a new logic for construing the scope of the free exercise clause. It asserts that there is a need for such a new logic because the Supreme Court’s free exercise jurisprudence has led to an aporia and traces the roots of that aporia back to Reynolds v. United States–one of the so-called Mormon cases. As an alternative to the current logic, this article suggests that the free exercise clause should be construed primarily to protect the free exercise of religious groups, not, as the Supreme Court has heretofore construed it, as protecting an individual’s religious exercise. It labels this new logic the “Associational Thesis,” and finds support for the thesis in a number of key texts including, most notably, John Locke’s Letter Concerning Toleration. Finally, this article concludes that the Associational Thesis is the logic-key to securing consistent free exercise jurisprudence.
