The Kim Davis situation raises interesting questions about the meaning and practical effect of the freedom of religion. Although, for reasons that I will explain, the issue today is one of public policy, rather than constitutional law, the evolution of constitutional principles in this realm is illuminating.

The First Amendment forbids government to make any law "prohibiting the free exercise" of religion. At its core, this guarantee forbids government from intentionally interfering with the freedom of individuals to practice their religion. Thus, the free exercise principle at least presumptively forbids the government to enact laws expressly prohibiting Muslim women to wear burkas, expressly prohibiting Jews to circumcise their male children, or expressly forbidding Catholics to use sacramental wine. Such laws are paradigmatic violations of the free exercise principle, because their very purpose is to restrict the religious practices of particular faiths.

The Kim Davis situation is different. Consider, for example, a law that prohibits anyone to use peyote. Does such law violate the free exercise principle when it is applied to a member of a religious group that uses peyote as a sacrament? Or consider a law that compels military service. Does such law violate the free exercise principle when it is applied to a member of a religion that teaches pacifism? Or consider a law that prohibits discrimination on the basis of sexual orientation. Does such a law violate the free exercise principle when it is applied to apply to an elevator operator in a government building who refuses to allow in "his" elevator people he regards as sodomites?

The difference between the paradigmatic violations of the free exercise principle and these latter examples is that in the paradigmatic situations the laws at issue are expressly and purposely directed at the free exercise of religion, whereas the latter examples involve what is commonly referred to as the "incidental effects" problem.

Read more at Huffington Post