First Amendment Traditionalism
Marc O. DeGirolami
Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This Essay probes traditionalism’s conceptual and normative foundations. It focuses on the Supreme Court’s traditionalist interpretation of the First Amendment to understand the…
Untangling Entanglement
Stephanie H. Barclay
The Court has increasingly signaled its interest in taking a more historical approach to the Establishment Clause. And in its recent American Legion decision, the Supreme Court strongly suggested that the three-prong Lemon test is essentially dead letter. Such a result would make…
Crossing Doctrines: Conflating Standing and the Merits Under the Establishment Clause
Ashutosh Bhagwat
In American Legion v. American Humanist Ass’n, the Supreme Court upheld the constitutionality of a thirty-two-foot tall Latin cross honoring soldiers killed during World War I against an Establishment Clause challenge. In a concurring opinion, Justice Gorsuch argued that the case should have been…
What Is a "Substantial Burden" on Religion Under RFRA and the First Amendment?
Gabrielle M. Girgis
What is the meaning of a “substantial burden” on religion under the federal Religious Freedom Restoration Act (and its state-level equivalents)? This question is timelier than ever, as several pending cert petitions before the Supreme Court ask it to overturn the landmark decision…
'The Peculiar Genius of Private-Law Systems': Making Room for Religious Commerce
Michael A. Helfand
Religious commerce has long sat uncomfortably at the nexus of public law and private law. On the one hand, such transactions invariably have garden-variety commercial objectives, which are best achieved and regulated through the law of tort, contract, and property. And yet the intermingled…
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