Many faith communities are sincerely pro-life and believe in traditional marriage as the union of one man and one woman. Federal, state, and local governments have responded to religious beliefs deemed out of line by regulating religious exercise. The result for an increasing number of Americans is Thomas Mores dilemma of conscience. No longer is it obvious that the Constitution will protect against these conflicts. This article aims to explore these issues. In part 1, I describe the current conflict between sexual liberty and religious exercise and explore how public accommodations laws have been expanded well beyond their common-law roots. In part 2, I review how Employment Division v. Smith has drastically undermined the original freedom of conscience protections that prevailed at the time of the founding. Finally, I examine Stormans, Inc. v. Wiesman as a case study of the conflict between sexual expression-based government mandates and freedom of conscience.
John C. Eastman, "The Religious Wars in Twenty-First-Century America," Journal of Markets & Morality 21, no. 1 (Spring 2018): 23-48