Freedom of Association: Campus Religious Groups

Michael W. McConnell

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 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…

Reconsidering Thornton v. Caldor

Christopher C. Lund

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 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…

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 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…

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 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…

‘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 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…

Reconsidering Hostile Takeover of Religious Organizations

B. Jessie Hill