Freedom of thought has long been revered as a fundamental right, yet its doctrinal contours have remained underdeveloped. Two recent Supreme Court decisions—National Institute of Family and Life Advocates v. Becerra (NIFLA) and 303 Creative LLC v. Elenis—suggest a nascent but expansive free thought jurisprudence, one that increasingly shields religious actors not just from government interference in belief but also compliance with generally applicable laws.
For decades, the Supreme Court had maintained several guardrails to cabin religious practice without unduly infringing on religious thought. These guardrails—evaluating the government’s purpose behind a law, considering whether a religious exemption would cause third-party harm, and questioning the sincerity of a religious plaintiff—have ensured that religiously motivated conduct does not override neutral laws. NIFLA and 303 Creative, though, weaken these constraints and offer plaintiffs a roadmap to use free thought to challenge a wide range of laws, including antidiscrimination protections, workplace regulations, and public health measures.
This Piece examines the erosion of these guardrails and argues that, without intervention, religious free thought could become an unchecked tool for breaking the law. It concludes by proposing doctrinal recalibrations to preserve freedom of thought without allowing it to imperil the rights and dignity of others.
Citation
Xiao Wang, Sacred Thoughts, Secular Harms, 125 Columbia Law Review Forum, 133–150 (2025).