Walter J. Walsh, The First Free Exercise Case, 73 Geo. Wash. L. Rev. 1 (2004), https://digitalcommons.law.uw.edu/faculty-articles/815
Free exercise clause, religious freedom, William Sampson
Part I of this Article tells the colonial history of religious freedom in New York State from a minority perspective, with specific reference to the secrecy of the confessional-the very practice that would be constitutionally tested in Philips. Part II describes the immediate social and political issues raised by the influx of Irish Catholic refugees into New York City in the wake of the failed United Irish Rebellion of 1798. Part III treats the unfriendly 1811 ruling of the federalist Chief Justice James Kent in People v. Ruggles as representative of the dominant Anglocentric constitutional legacy of imperial Protestant jurisprudence. Part IV recounts the arguments and decision in Philips, demonstrating the powerful subversive influence of William Sampson's postcolonial United Irish republican rhetoric. Part V traces the influential subsequent judicial reception of Philips-the doctrinal origin of both the constitutional free exercise exemption and the evidentiary priest-penitent privilege. Part VI of this Article describes the current historiographical controversy over the jurisprudential legacy of Philips. Part VII directly refutes the vigorous recent effort of Justice Scalia and his academic ally Professor Gerard Bradley to erase Philips from the constitutional record of free exercise exemptions. In Part VIII, I conclude with some brief observations on Philips as an historic moment in the construction of a radical postcolonial jurisprudence.