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A year and a half ago an article of mine was published on religion as a concept in constitutional law. The article concerned how courts should approach decisions about whether a belief, practice, organization, or classification is religious. The article did not address, except in passing, what the constitutional standards under the free exercise and establishment clauses should be if something that is religious is aided or inhibited in some way. Since in most cases arising under the religion clauses, the presence of something religious is not itself disputed, my article concerned only a small slice of religion cases.

My comments on state constitutional law were limited to one early sentence in a sixty-page analysis. I said, simply and boldly, "Though my discussion deals explicitly only with clauses of the federal constitution, it applies to state provisions as well." That foolhardy simplification was sufficient to attract the attention of Professor Williams, who invited me to speak to you. After a few exchanges about whether I really had anything useful to say, here I am. I believe that my remarks will have some interest, but we should be aware that this subject is pretty marginal to state development of standards for religious liberty and nonestablishment.

The two central questions I address are the following:

(1) If my claims about interpreting the federal constitution are sound, are they also intrinsically sound for state constitutions that contain different language?

(2) Is it always, or sometimes, essentially self-defeating for state courts to define religion in a way different from what is embodied in federal law?


Constitutional Law | Law | Religion Law