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Conor Reilly

Document Type

Article

Abstract

The virtually absolute ban on prior restraints against speech is, of course, cemented in the Supreme Court’s Free Speech jurisprudence. But the doctrine may potentially apply to another important First Amendment Clause: Establishment. In free speech cases, courts almost always refuse to restrict expression prior to a determination that it is protected. This Article argues that the courts should apply the same principle in cases implicating religious liberty.

First, this Article examines a case in which a district court granted a preliminary injunction in favor of a religious group, but also imposed severe restrictions on the group’s ability to practice its religion. After a discussion of the Court’s Establishment Clause case law, this Article concludes that the court-imposed restrictions amounted to unconstitutional entanglement under the Lemon test.

Second, this Article considers the historical debates surrounding the First Amendment and focuses on a link between the Free Speech Clause and the Religion Clauses. Specifically, James Madison wrote that both clauses are a necessary bulwark against government coercion and suppression of minority viewpoints. Government, then, cannot advance or inhibit religion and cannot promote or suppress speech. Further, this Article surveys scholarly links between the Speech and Religion Clauses and examines the Court’s current attitude towards Free Speech and Establishment.

Finally, this Article argues that, in light of history, legal doctrine, and pragmatic considerations, preliminary injunction of religious liberty deserves the same treatment as preliminary injunction of speech. Because the prior restraint doctrine would counsel against court-imposed restrictions or supervision of speech, the same principles should counsel against court-imposed restrictions against religious practice.

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