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.
Constitutional Law | First Amendment | Human Rights Law | Law | Religion Law
How Does "Equal Liberty" Fare in Relation to Other Approaches to the Religion Clauses?,
Texas L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2860