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…

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…

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”…

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…

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…