Category: 97:6

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 religious aspirations of the parties often inject constitutional concerns that muddy the waters. To navigate these challenges, the Supreme Court famously embraced the neutral principles of law framework, which encouraged parties to draft private law agreements using secular terminology. Thus, while the Establishment Clause provided the outer boundaries for what was legally possible, the neutral principles of law framework made space for religion under the umbrella of private law.

This equilibrium between public and private law, however, has become increasingly unsettled. As the permutations of contracting for religion have proliferated, courts and scholars have searched for tools to regulate what they view as problematic outcomes. At the core of such criticisms is an instinct that judicial enforcement of privatized religious obligation—whether in the form of religious contracts generally or religious arbitration specifically—undermines a principled commitment to separation of church and state. In turn, courts and scholars have reached into their constitutional toolboxes, searching for legal doctrines that might eliminate the kinds of outcomes they view as offending fundamental constitutional principles.

The goal of this Article is to argue that this public law instinct—the notion that regulating the field of religion and private law is best achieved through the expansion of constitutional prohibitions—is deeply misguided. And this is true not only for standard religious commerce, but also—and especially—for the religious commerce safety valve, religious arbitration. Ultimately, successfully merging religion and private law requires promoting doctrines that, on the one hand, address legitimate concerns, but do so without eliminating the very legal terrain made possible by the neutral principles of law framework. Failure to do so—and reflexively reaching into our constitutional toolbox—leaves both courts and scholars without the tools they need to meet these legal challenges.

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 that spurred RFRA’s enactment: Employment Division v. Smith, which held that exemptions for burdens on religion are not required from neutral and generally applicable laws. Whether or not the Court grants any of these cert petitions, judges will continue to need a clear and reliable method for identifying substantial burdens on religion. This Article considers several existing tests and proposes a new framework designed to remedy their shortcomings.

Put simply, a court’s analysis of a substantial burden requires it to ask two questions: (1) What type of religious exercise does the law burden? And (2) what type of impact does the law have on that exercise? The Article develops answers to both questions, by specifying the kind of religious exercise that can be substantially burdened in the first place (what I’ll call obligation and substantial religious autonomy), and by sketching several types of substantial impact laws might have on religion (what I’ll call simply punitive, indirectly punitive, non-punitive, or preventive burdens). Only burdens that meet these two criteria together can properly be considered substantial. Taken together, these two prongs of the framework help us generate a taxonomy of at least eight different kinds of substantial burdens on religion.

But a challenge remains: Would judicial application of this framework— particularly, would asking what type of religious exercise the law burdens— violate the Establishment Clause? In response, the Article clarifies the kinds of Establishment Clause concerns one might have about any judicial effort to interpret the substantiality of a burden on religion. Ultimately, it finds, the proposed framework can withstand all those concerns. Finally, the Article shows more precisely how the framework would help the Supreme Court decide a number of recent and potentially forthcoming cases involving substantial-burden claims.

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 dismissed for lack of standing. He claimed that lower court decisions upholding standing for “offended observers” to challenge government religious displays are inconsistent with standing law, and were driven by the Supreme Court’s holding in Lemon v. Kurtzman that government endorsement of religion violated the Establishment Clause. Since, Gorsuch concluded, a majority of the Court explicitly disowned the Lemon test in American Legion, it was now time to abandon offended observer standing as well.

In this Essay, I argue that Justice Gorsuch is correct, but for the wrong reasons. Justice Gorsuch’s assertion that offended observer standing arose from the Lemon endorsement test is not supported by history. He is, however, correct that such standing is recognized only in the Establishment Clause context. The question then arises, is there something unique about substantive law in this area which justifies special standing rules. And that in turn raises the very complex question of how the “injury in fact” requirement of standing doctrine interacts with substantive law.

My conclusion is that substantive law and injury are related because Congress possesses the power to create new injuries that would not have supported common law claims, and that it regularly exercises that power in the administrative context. On the other hand, the Constitution, acting on its own, should not be read to create new forms of injury. This means that the cases recognizing standing to challenge religious display are incorrect, because they rely on the Establishment Clause alone to create injury where none would have been recognized under the common law. The paper concludes by exploring the implications of this conclusion for the Establishment Clause, and for other areas of law. It ends with the important insight that if standing should not have been recognized in religious display cases, then the Supreme Court was also wrong to recognize standing in its leading cases considering Equal Protection challenges to affirmative action programs.

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 sense for the first two prongs of the Lemon test about secular purpose and the effects. Many scholars have observed that these aspects of the prong are judicial creations far afield of the Establishment Clause history. But what of the entanglement prong of the test? If we rejected all applications of this prong of the analysis, would we be essentially throwing the baby out with the bathwater? This Article cautions that this might be the case.

A close analysis of the Court’s entanglement jurisprudence, compared against historical support for the various applications, suggests that entanglement jurisprudence ought to remain good law in at least two contexts. First, where it has protected religious groups from government interference with the autonomy, internal affairs, and administration. Second, where it prevents government from treating certain religious groups in a preferential way, including by granting monopoly power in the performance of public functions. On the other hand, the Court’s entanglement precedent is on far shakier historical ground in several contexts, including anti-sectarian skepticism of any sort of government aid to religious groups (and accompanying monitoring requirements to avoid religious use of funds), concerns about political divisiveness when government interacts with religious groups, and opposition to government classifications necessary to provide religious exemptions. If the Court were to modify its entanglement analysis to disregard ahistorical applications and embrace the historical ones, the upshot would be far less apparent tension between the Religion Clauses. Such an interpretation could facilitate an increase in religious pluralism and human flourishing and a decrease in unnecessary cultural fights aimed at excluding religion from the public sphere.

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 distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the Essay identifies and describes traditionalism in some of the Court’s Speech and Religion Clause jurisprudence, highlighting its salience in the Court’s recent Establishment Clause doctrine.

Part II develops two justifications for traditionalism: “interpretive” and “democratic-populist.” The interpretive justification is that enduring practices presumptively inform the meaning of the words that they instantiate. Generally speaking, we do what we mean, and we mean what we do. The democratic-populist justification is that in a democracy, people who engage in practices consistently and over many years in the belief that those practices are constitutional have endowed those practices with political legitimacy. Courts owe the people’s enduring practices substantial deference as presumptively constitutional. The populist element in this justification is that traditionalism is a defensive interpretive method against what abstract principle in the hands of elite actors has wrought: intolerance, the corrosion of lived experience, and the distortion of text to mirror a particular class of contemporary moral and political views.

In Part III, this Essay compares traditionalism with originalism, reaching two conclusions. First, traditionalism’s reliance on practices as presumptively constitutive of constitutional meaning is most distant from originalist theories that rely on abstract principle as constituting the meaning of text and that reject practice-based evidence as the equivalent of irrelevant “expected applications.” It is closest to varieties of originalism that read text concretely. Yet traditionalist judges are not engaged in making guesses about “expected applications,” but in making decisions about retrospective applications—drawing on old and enduring practices either to include within, or exclude from, a tradition the specific practice under review. Second, the Essay investigates the connection between so-called “original law” theories of originalism and traditionalism. Original law theorists argue that originalism is “our law” as a sociological and cultural fact. But traditionalism may be more “our law” than originalism in some areas within the First Amendment and outside it. If the positivist defense of originalism truly counts as a justification for any theory of constitutional interpretation (an issue on which this Essay takes no position), then it may support traditionalism as much as originalism.