Sun Tzu and the Art of Constitutional Law

Sun Tzu teaches that the enemy will always try to attack you at your weakest point.

Under the law of free exercise, the weakest point is when a free exercise claim is brought by an unpopular religious minority, such as the peyote-ingesting parties in Smith. In Smith, the Court gutted the Free Exercise Clause by holding that free exercise may be prohibited by generally applicable laws, and the outcry was small because the public saw this as an illegal drug case, not a religious liberty case. And yet, Smith is now the leading precedent in the Court's free exercise jurisprudence.

As Ben Franklin said, "we must all hang together, or most assuredly we will all hang separately." In other words, my free exercise rights will be no more and no less than those of members of small, unpopular religions.

Or as the Rev. Martin Niemöller said of Hitler and his secret police:

"First they came for the Jews, and I did not speak out because I was not a Jew.

Then they came for the Communists, and I did not speak out because I was not a Communist.

Then they came for the trade unionists, and I did not speak out because I was not a trade unionist.

Then they came for me, and there was no one left to speak out for me."