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12 Cardozo L. Rev. 821 (1990 - 1991)
Tolerance: The Bridge between Religious Liberty and Privacy

handle is hein.journals/cdozo12 and id is 835 raw text is: TOLERANCE: THE BRIDGE BETWEEN RELIGIOUS LIBERTY AND PRIVACY David Rudenstine* Recently, a cartoon in The New Yorker pictured two portly gen- tlemen in their senior years standing at the helm of a speeding motor- boat. One turned to the other and said: I took a look at the First Amendment the other day, and some of that stuff isn't funny. The motorboat man was right; there are things in the first amendment1 that are not funny, and they were not intended to be. The clause of the first amendment that is most familiar and most frequently the center of controversy is the free speech clause. It pro- vides that Congress shall make no law abridging the freedom of speech.2 A recent example of the controversy surrounding the free speech clause occurred last term when the Supreme Court overturned a flag burning conviction under a Texas criminal statute3 on the ground that it violated the free speech provision of the first amend- ment. The Court's decision immediately prompted President Bush and some members of Congress to seek a constitutional amendment that would permit states to criminalize flag burning.4 Controversies, such as the one described above, continue to arise due in large part to the Supreme Court's construction of the free speech clause. By its terms, the clause prohibits Congress from pass- ing any law that abridges freedom of speech. Indeed, if one wanted to write a statement absolutely prohibiting Congress from passing laws that abridged free speech, one would be hard pressed to improve upon the modest ten words selected by the drafters of the first amendment. And yet, it is a cornerstone of first amendment jurisprudence that * Professor of Law, Cardozo Law School. I wish to thank Sandy Cobden and Paul Brusiloff, two Cardozo students, for their help in preparing the footnotes. I U.S. Const. amend. I. 2 Id. 3 Texas v. Johnson, 109 S. Ct. 2533 (1989). 4 E.g., Bush Seeking Way to Circumvent Court's Decision on Flag Burning, N.Y. Times, June 27, 1989, at Al, col. 1. Instead of immediately seeking a constitutional amendment, Congress has enacted the Flag Protection Act of 1989, 18 U.S.C. § 700 (1989). On June 11, 1990, the Supreme Court struck down this statute, too. United States v. Eichman 58 U.S.L.W. 4774 (1990). Following the Court's decision, President Bush and various members of Con- gress again called for a constitutional amendment that would allow states to prohibit flag- burning. See N.Y. Times, June 12, 1990 at B6, col. 1. At the time of publication, their call has been unheeded.

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