I know I'm falling behind in this thread, but let me do my best to catch up.
I think these are better examples than your first group, Eugene. I could probably distinguish some of them -- but let me see if I can jump over the trees and look at the forest instead.
I think there are at least two arguments that explain why we might protect free speech that harms others, but not the exercise of religion when it harms others. I think you have mentioned both of them in this thread. First, the instrumental goals and functions of free speech may be so important to the effective functioning of democratic self government and other paramount public interests related to the reasons why we protect free speech that they justify protecting speech that causes private harms. Second, the kind of harm that speech causes is often different in nature than the kind of harm that the exercise of religion may cause because the latter is so much more conduct intensive than the former. When expressive activities are very conduct intensive and the conduct aspect of the activity causes harm to third parties, we often do not protect the activity as free speech -- and therefore, we should not protect the conduct intensive exercise of religion when it causes similar harms.
I don't think these are bad arguments, as far as they go. What I don't think they do is to explain why we should never protect the free exercise of religion when it causes harm to third parties.
I think the key difference between our positions may be this: I think we determine the scope of what the free speech clause protects in terms of two constitutional concerns. One concern is that we want to protect speech sufficiently to avoid undermining the reasons why we protect freedom of speech. For example, we protect speech enough to maintain the effective functioning of democratic self government. The second concern is that we do not protect speech so much that doing so causes unacceptable harm to third parties or the public good. The scope of the right is worked out by taking both of these variables into account. Thus, speech that undermines the war effort may be quite costly to society, but we lose too much of the value of free speech if we allow government to suppress speech that is critical of its war policies.
Basically, I think we determine the scope of most rights this way -- by looking at these two concerns.
When we define the scope of what the free exercise clause protects solely in terms of the harm caused by the exercise of religion, we are leaving out an essential part of the constitution equation. We are not asking whether defining the right in this way undermines the reasons why we protect the exercise of religion.
I recognize that identifying the purpose of protecting the exercise of religion is more open and controversial a question than is explaining why we protect freedom of speech. But that does not mean that the question can be avoided. It seems to me that one core purpose of the free exercise clause is that government should act in a way that recognizes how serious and important religious beliefs and practices are to religious people. I think the idea of harm to others is so indeterminate and so malleable that a principle limiting the protection of free exercise rights to those practices that cause no harm to anyone and impose no cost on the public undermines the goal of government treating an individual's religious identity as something that deserves respect. Indeed, I think any purpose served by protecting the exercise of religion as a liberty right (as opposed to an equality right) is undermined by the principle that holds that the exercise of religion is unprotected whenever it causes harm.
This analysis leaves a lot of issues open to debate and discussion. It says nothing about the standard of review to be applied in free exercise cases. It says nothing about what kind of harms justify abridging free exercise rights. As I have written elsewhere, I think a meaningful free exercise jurisprudence should be more complex and nuanced than any unitary formula or standard of review -- something more akin to free speech or equal protection doctrine.
But a principle that simply rejects any and all protection of religious exercise that burdens anyone seems inconsistent with the idea that the exercise of religion is a right worthy of protection. It suggests (at least to me) that we don't ask whether limiting the scope of right in this way undermines the reasons why we protect religious liberty -- because we do not think there are any reasons to protect religious liberty.
I respectfully disagree.
Alan Brownstein UC Davis
(1) I assume Alan would conclude that there's no free exercise clause right to block even the entrance to a hardware store. (Imagine that someone believes the store sells some environmentally unsound or otherwise immoral product, and feels a religious motivation to block such sales.) So it's not really abortion rights that are doing the work, or even the medical procedures vs. mere hardware distinction. What's doing the work, I think, is that my religion doesn't give me the right to block entrances to your property.
(2) Alan's next argument is that the harm of blocking entrances is greater than merely the harm of a boycott or of advocacy. But I'm not sure that this is so. The economic harm of blocking an entrance for a few days, or even for a few hours in a day, is probably much less than the economic harm caused by a more-or-less three-year-long boycott. Yet presumably the religious blockers could be arrested and taken away 15 minutes after they start blocking the entrance (even if they announce that they'll only do it for a day, so as to minimize the harm). They don't have the right to inflict even modest economic harm on me through their religious conduct. Yet they have the right to inflict much greater economic harm on me by organizing a political boycott.
(3) As to Mary Glynt, say that she's not using a bullhorn but some noise but noncommunicative device (say just banging pots and pans, and say her intent and effect is not convey a message but just to make noise). Allowing such noncommunicative banging for religious reasons but not nonreligious reasons wouldn't violate the rule against content- or viewpoint-based speech restrictions -- there'd be no speech restriction involved here. Yet I take it the result is the same; again, what's doing the work is not the content-neutrality rule, but the principle that my religion doesn't give me the right to interfere with your sleep through my noncommunicative behavior.
Alan, am I mistaken on these points? If I'm right, then it seems to me that we do have the very situation I described: The Free Speech Clause quite properly gives people the right to inflict certain harms on others through the communicative impact of speech. But the Free Exercise Clause does not give people the right to inflict comparable harms on others through their noncommunicative conduct, even if the conduct is religious motivated or compelled.
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