A point I've been looking to take up with Ed Brayton

At a recent post at Dispatches from the Culture Wars, Ed Brayton comments that:

The reason there is both a free speech clause and a free exercise clause is that the latter covers far more than speech, and because in light of their experience freedom of religion was a particularly important right to protect.

To which I replied:

This is actually a point I've been wanting to take up for some time: What exactly is covered by free exercise that is not covered collectively by free speech, free press, freedom of peaceable assembly, inviolability of the home, habeus corpus, etc.?

It seems to me that explicitly mentioning religious practice as protected either signals that religious practice is protected above and beyond - say - political speech, or is in clear violation of Ockham's Razor.

From where I'm standing, there seem to be two inheirent problems with that:

Firstly, I can think of legitimate religious excersise that would not be covered by other civil liberties. Thus, explicit mention of religion conveys the impression that freedom of religious practice is more far-reaching than other civil liberties.

For instance, it is clearly both constitutional and legitimate to prohibit libel and slander. But if you couch your libels and slanders in religious terms, a case can suddenly be made that libel and slander laws do not apply, because religious speech is protected in ways that go above and beyond ordinary free speech. Not a very good case, I admit, but a case none the less.

Or, to take a less open-and-shut example, a case could be made that it is constitutional to prohibit lying in advertismen. Would such a law (assuming it was not unconstitutional on free speech grounds) require a religious exemption for televangelists?

If religious speech is protected above and beyond ordinary free speech, then a rather compelling case could thus be made that televangelists are allowed to defraud people as long as they couch their fraud in religious gibberish.

Or take a faith healer, who advocates medically unsound practices. Assuming that this could be forbidden without violating freedom of speech (which I very much doubt, but let's go with the notion for the sake of the argument)

Now, personally, I think that if someone is stupid enough to fall for a televangelist or faith healer, it's their money, their health, and their problem.

Nevertheless, these two groups of frauds are clear examples of people who use their target audience's superstition to make a buck - I see no indication that they would be above using the same superstition to game the law.

My second concern is that explicitly protecting religious practice - even when the protection extends no further than the other civil liberties - makes it less likely that the ordinary civil liberties will be enforced: It is usually easier to draw a bright line saying 'religious practice here,' than to take on a messy argument over free speech and the limitations thereof.

Thus, we often (at least in Europe) see lawsuits over matters that would clearly be covered by freedom of speech waged over freedom of religion. The problem with this is fairly obvious: It deprives the public record of a precedent case (re)establishing freedom of speech - not to mention the possibility for creating conflicting precedents.

And that's leaving quite aside the issue of symbolism: I find it a most unhealthy signal to send that religious expression is somehow different from ordinary expression - it is precisely this kind of implied dualism that (mis)leads people to conclude that religion should be subject to some special 'respect' or overt veneration.

Of course, all of these concerns would be moot if there is even one example - contrieved or otherwise - of acceptable and legitimate religious practice that is not covered by the other civil liberties (of course, that would then raise the issue of why that practice isn't covered).

Whether I'm right in my assumptions or not, this should be an interesting one to watch.