Introduction
We hold these truths to be self-evident, that all men are created equal, that
they are endowed by their Creator with certain unalienable Rights, that
among these are Life, Liberty and the pursuit of Happiness.—That to secure
these rights, Governments are instituted among Men.1
Thus begins the Declaration of Independence. But this document has no
legal standing. The rights it calls “inalienable” are not all enshrined in
U.S. laws. The rights we do possess are named in the U.S. Constitution.
In particular, the First Amendment says, “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a
redress of grievances.”2
But the very term “freedom” is a vague one, requir-
ing definition. Repeatedly in the more than 225 years since the amend-
ment was ratified, the Supreme Court has faced questions about what
actions it protects. More and more—and thanks to the Fourteenth
Amendment’s language—“All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the law”—the nine justices have
weighed freedom against equality in their decisions, in an effort to right
the scales of justice for traditionally marginalized groups.3
Increasingly, in the last two decades, the U.S. Supreme Court has
addressed cases in which those claims of equality contrasted with claims
of religious liberty. Raging debates over whether religious liberty permits
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