The free exercise clause, the Religious Freedom Restoration Act, and the right to active and passive euthanasia.

One of the ironies of modern constitutional law is the number of establishment clause cases that forbid a form of speech or expression.(1) Similarly, much of the theorizing about the proper scope of the establishment clause proposes that religious citizens, legislators, or judges be restrained, or restrain themselves, from expressing religious reasons for public policies.(2) The underlying purpose of the restrictions on religious expression found in cases and theoretical writings is often stated as governmental neutrality regarding religion.(3) Religions are concerned with far more than speech and expression; religions generally also are quite concerned with conduct. Religion generally seeks to address the most central spheres of human conduct and experience, including work, procreation, child-rearing, and death.(4) The) modern United States Supreme Court has chosen some of these areas, to differing degrees, as special areas of individual freedom and autonomy, while permitting broader state regulation in others. This judicial process of picking and choosing among certain human activities not mentioned in the text of the United States Constitution has generally ignored the religion clauses, despite the obvious interest of various religious groups in these central areas of human life. Neither the legislature nor the Supreme Court itself can accomplish actual religious neutrality in areas such as abortion, marriage, work, and death. For example, the constitutional question of whether there is a fundamental right to unilateral elective divorce, or the legislative question of whether to adopt the same right as a matter of state law, inevitably favors or disfavors the various views of divorce found among Orthodox Jews, Reform Jews, Roman Catholics, liberal Protestants, evangelical Protestants, and Mormons. Indeed, the constitutional selection of divorce as a fundamental right about which the individual is autonomous would favor those religions which believe that an individual may ethically divorce his or her spouse on the grounds of personal incompatibility. Of course, it is just as impossible to maintain neutrality between religion and nonreligion in regard to such questions. Thus, since laws will necessarily correspond more closely with some religious views, and sharply contradict others, actual governmental neutrality is impossible. There are simple and identifiable fears behind the lofty rhetoric of modern religion clause debate. For example, those who believe sexual and reproductive freedom to be central to human life fear that traditional religious limitations on such freedom will be written into law. They therefore look for the principle of religious neutrality to somehow shield them from such laws. Adherents of traditionalist religions can respond that it is hardly "neutral" to exclude only "religious" viewpoints (or only traditionalist religious viewpoints) as legitimate sources of public policy. Moreover, traditionalist religious citizens themselves fear that their own ways of life will be legally disfavored or even prohibited.(5) The Supreme Court's religious neutrality rhetoric encourages citizens to look to the Court to somehow protect them from their religious opponents in the public arena. Thus, despite the obvious impossibility of achieving actual neutrality, judges and commentators are left seeking the best way to approximate religious neutrality. It could be argued that the government could best approximate religious neutrality by mandating broad individual autonomy in central areas of human life and thereby leave the question of whether to be bound by more restrictive religious rules to the individual.(6) This arguably could have the effect of achieving neutrality both among religions and also between religion and "nonreligion." However, such an approach would advantage those religious and nonreligious views of government that emphasize individual autonomy and would politically cripple all those, whether religious or not, who believe that the public good requires restrictive legislation in important areas of human life. …