Regulating Religious Coercion

Abstract

This Article examines the nature and regulation of religious coercion. Direct religious coercion denotes situations where the government expressly applies sanctions to ensure conformity with religious goals. Indirect religious coercion describes situations where, although the state may not have intended to pressure citizens to comply with or participate in some religious activity, it nonetheless takes advantage of social, psychological or peer pressure that has the same conformity-inducing effect. Indirect religious coercion is a real problem for those who dissent from majoritarian religious practices. But an open-ended inquiry into it can, as critics point out, be a highly unpredictable and subjective exercise. On balance, the Article concludes that the concept does deserve recognition by the courts. The Article develops a modified indirect coercion test to guide judges in First Amendment cases. A two-step test is expounded to streamline the inquiry, identify the key criteria,and render the test more workable.