The Religion Clauses Post-Kennedy
Establishment as Tradition
Traditionalism holds that enduring practices are the presumptive determinants of constitutional meaning and law. This Essay examines two questions: Why has traditionalism had special salience in interpreting the Establishment Clause? And is traditionalism more disposition or mood than constitutional theory, more a matter of the heart than of the head?
Freedom for Religion
The First Amendment’s religious-freedom provisions are best understood as protecting “freedom for religion”—religious liberty for the benefit of religion, for generous protection of its free exercise by individuals and groups, and for the autonomy of religious institutions. The Supreme Court’s most recent decisions appear headed in that direction.
Replacing Smith
As the Supreme Court has sought to ground more of its constitutional jurisprudence in original understanding, it has signaled an interest in revisiting aspects of Employment Division v. Smith. This Essay assesses potential replacement doctrines and defends a historically grounded version of strict scrutiny that does not require judicial balancing.