Religious liberty has long been a cornerstone of American democracy, enshrined in the First Amendment as both a protection and a principle. In 1988, former U.S. Solicitor General and Brigham Young University law professor Rex E. Lee delivered a seminal speech on this topic at BYU, dissecting the legal foundations and ongoing challenges of religious freedom in the United States. More than three decades later, his insights remain profoundly relevant, even as new legal battles and societal shifts have redefined the landscape of religious liberty.
The Foundations of Religious Liberty
Lee’s speech centered on the First Amendment’s religious clauses: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” These sixteen words form the bedrock of religious liberty in the United States, balancing two essential but sometimes conflicting principles—the Establishment Clause and the Free Exercise Clause.
Lee emphasized the stark difference between these two clauses. He described the Free Exercise Clause as a guarantee of individual liberty, akin to other First Amendment rights such as freedom of speech and the press. Meanwhile, the Establishment Clause is more structural, designed to ensure the separation of church and state. Lee warned against oversimplifying this separation, famously criticizing the rigid “wall of separation” metaphor, pointing out its inconsistency in legal interpretations. As Dallin H. Oaks, a legal scholar and former Utah Supreme Court Justice, once observed: “It isn’t much of a wall if a bus can get through it, but a prayer can’t.”
The Evolution of Religious Liberty Jurisprudence
In his speech, Lee reviewed key Supreme Court cases that shaped religious liberty jurisprudence. He recounted the landmark Everson v. Board of Education (1947), in which the Court upheld public funding for transportation to religious schools while paradoxically affirming a strict separation of church and state. Lee also discussed the Lemon v. Kurtzman (1971) ruling, which established a three-part test to determine whether government action violates the Establishment Clause. He criticized the rigidity of this test, highlighting its tendency to produce impractical outcomes, such as the Court’s ruling in Aguilar v. Felton (1985), which barred public school teachers from providing remedial instruction on the premises of religious schools.
One of Lee’s key takeaways was the Supreme Court’s shift toward favoring Free Exercise claims in cases where the two clauses seemed to conflict. He pointed to Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972) as examples of the Court upholding religious exemptions to otherwise neutral laws. In these cases, the Court ruled that government policies imposing undue burdens on religious practice must be justified by a “compelling interest” and implemented through the least restrictive means.
Religious Freedom Today: A Shifting Landscape
Since Lee’s speech in 1988, the legal landscape of religious freedom has evolved dramatically. While many of his concerns remain relevant, others have taken on new dimensions. For example, the Supreme Court has redefined the balance between Free Exercise and Establishment in cases like Burwell v. Hobby Lobby (2014), where the Court ruled that private businesses could claim religious exemptions from federal mandates. Similarly, in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Court sided with a baker who refused to create a wedding cake for a same-sex couple due to his religious beliefs.
At the same time, concerns about government overreach into religious practice have persisted. Lee’s observation that “governmental acts which adversely affect the implementation of religious belief are constitutional only if the government can show that those acts are based on a compelling governmental interest” continues to be tested in debates over COVID-19 restrictions on religious gatherings, faith-based hiring practices, and public funding for religious schools.
Lee’s Lasting Legacy
Rex E. Lee’s 1988 speech was not merely an academic exercise; it was a call to remain vigilant in protecting religious liberty while respecting the necessary boundaries between church and state. His insights remain vital today as courts, legislators, and religious communities navigate an ever-changing legal and cultural environment.
Though new legal precedents may have overtaken some of the specific cases Lee referenced, the fundamental questions he raised—how to balance religious liberty with secular governance, how to ensure that faith is neither unduly burdened nor unfairly privileged—continue to shape American society. As he presciently predicted, religious liberty remains “a fruitful and fascinating source of Supreme Court litigation,” and its preservation requires constant engagement from both legal scholars and everyday citizens.
In the 21st century, we do not merely revisit Lee’s words as a historical curiosity; we engage with them as a roadmap for the ongoing defense of one of our most cherished freedoms.
Steve Bowcut is an award-winning journalist. He is an editor and writer for Religious Freedom Under Fire as well as other security and non-security online publications. Follow and connect with Steve on Twitter, Substack, and Facebook.
