Religious Liberty & Common Law: Free Exercise Exemptions & American Courts

The U.S. Supreme Court, in recent Free Exercise and Establishment cases, seems to ground its decisions in the theory of political liberalism. This article, however, argues that the American tradition of religious liberty and its judicial protection must be understood not only in the context of liberalism but also in light of the common law heritage of American constitutionalism. The author concludes by examining an 1813 New York case in which free exercise of religion was vindicated on common law as well as constitutional grounds in a way that did not subordinate religious practice to liberal theory.