One thing that has always bothered me about free exercise jurisprudence is that it rests on values we have seldom tried to state, much less justify. In a way this is not surprising. We have only recently abandoned the assumption, which may never have been true, that Americans share a common understanding of language about God and transcendent values. That understanding made it unnecessary to define for nonspeakers a meaning that even believers have trouble putting into words. But today we are probably not "a religious people whose institutions presuppose a Supreme Being-at least not if "religious" is supposed to describe some common sentiment shared by members of our society.
If we no longer think alike, it is time to start talking about why religious liberty matters to some of us. This article is an effort to begin the conversation. I will first look at how we have neglected the problem of free exercise values, and consider some difficulties that arise in solving this problem. I will then show why the common arguments for protecting other kinds of civil liberties do not work very well here. Finally, I will mention a few possible directions for further study; but these are not paths I have gone down very far, and I know that there are others I have ignored altogether.
John H. Garvey, Free Exercise and the Values of Religious Liberty, 18 CONN. L. REV. 779 (1986).