Constitutional Law | First Amendment | Human Rights Law | Law | Religion Law
As one of four contributors to an issue celebrating Christopher Eisgruber and Lawrence Sager's Religious Freedom and the Constitution, I have chosen to write an Essay that differs from an ordinary review. I compare the authors' approach with two other recent formulations of what should be central for the jurisprudence of the Religion Clauses. Since I have recently published my own treatment of the Free Exercise Clause, and a second volume on the Establishment Clause is in the pipeline toward publication, I do not here present my own positive views (though I provide references for interested readers). Those views might be capsulized as a broad defense of the Supreme Court's traditional "no hindrance-no aid" approach to the Free Exercise and Establishment Clauses – a defense that rejects a fair amount of what the Court has actually decided but also rejects the idea that some simplifying conceptual approach can best guide adjudication in this sensitive domain. Thus, although I believe we can learn much from the three approaches I discuss here, I resist claims that any of them would alone produce just decisions about the legal treatment of religion in the United States.
How Does "Equal Liberty" Fare in Relation to Other Approaches to the Religion Clauses?,
Texas L. Rev.
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