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Abstract:
Substantive due process is in serious disarray, with the Supreme Court simultaneously embracing two, and perhaps three, competing and inconsistent theories of decisionmaking. The first two theories, historical tradition and reasoned judgment, have explicit and continuing support in the Court's decisions. Under the theory of historical tradition, substantive due process affords presumptive constitutional protection only to liberties that are "deeply rooted in this Nation's history and tradition." By contrast, the theory of reasoned judgment is far more expansive, permitting the Court to identify rights independently, through a process that amounts to philosophical analysis or political-moral reasoning. The third theory, evolving national values, is a theory that may be implicit in Lawrence v. Texas and that finds support by analogy in recent Eighth Amendment cases. Under this approach, substantive due process protects values that command widespread contemporary support, as evidenced by legal developments and societal understandings that may change over time.

In this Article, I offer a detailed account of each of these three theories, explaining the decisionmaking methodology that each requires for the identification of unenumerated constitutional rights. The Article also develops and applies three criteria of evaluation, grounded in relevant considerations of constitutional policy: majoritarian self-government, judicial objectivity and competence, and functional justification. I contend that each theory can be defended as a matter of constitutional policy but that, on balance, the most defensible approach is the theory of evolving national values. If my thesis is correct, it promises enhanced coherency and legitimacy for this embattled area of constitutional law.

Constitutional Law, Constitutional Theory, Substantive Due Process, Unenumerated Rights, Privacy, Liberty

Abstract:
In this article, I suggest that America's ongoing culture war is a product, in part, of an epistemic crisis that confounds our collective search for truth. In a previous article addressing aspects of this topic, I expressed concerns about religious fundamentalism. Here, I explore the ways in which secular thinking might likewise be described as "fundamentalist." In particular, I discuss secular fundamentalism in textual interpretation, secular fundamentalism in the form of political liberalism, and comprehensive secular fundamentalism, which extends to private questions of truth. I then discuss the various problems - not only political, but also theological - that are raised by fundamentalist thinking, whether religious or secular in nature. In place of these various sorts of fundamentalism, I advocate a dialogic, multi-lingual search for truth, a search that would give meaningful consideration to moral arguments of all types - not only in private life, but in the public domain as well.

Constitutional Law, Establishment Clause, Religion Clauses, Religion and Politics

Abstract:
In a series of majority opinions over the course of his career on the Supreme Court, Chief Justice Rehnquist has successfully championed a relaxed approach to the Establishment Clause in the context of voucher programs and other types of indirect funding. Under this approach, neutral programs of private choice are virtually immune from constitutional challenge. This paper explains how Rehnquist has achieved this result even though a solid majority of the Court rejects his general approach to the Establishment Clause.

Rehnquist's general approach to the Establishment Clause would give the states broad leeway to deal with religion as they see fit. That view has not prevailed. But Rehnquist has secured the support of a narrow majority for a relaxed and deferential approach in the context of indirect funding. He has done so by crafting opinions that bracket his distinctive general approach to the Establishment Clause and that work within the framework of prevailing Establishment Clause tests and values.

Through his success in this context, Rehnquist has partially achieved his broader goal, a limited reading of the Establishment Clause. At the same time, he also has furthered his overarching constitutional vision: reading the Bill of Rights narrowly and thereby enhancing the power and discretion of the states.

This paper will be published as a chapter in The Rehnquist Legacy, a book recounting and analyzing Rehnquist's jurisprudence in a variety of substantive areas.

Constitutional Law, Establishment Clause, Funding, Religion, Rehnquist,

Abstract:
Among other meanings, "judicial activism" can be defined as judicial decisionmaking that frustrates majoritarian self-government and that is unconstrained by law. So understood, judicial activism is presumptively problematic, because it frustrates customary democratic and judicial norms.

In this essay, I address originalist and nonoriginalist responses to the presumptive problem of judicial activism in the context of Fourteenth Amendment privacy claims, including claims relating to abortion, sexual conduct, and same-sex marriage. I argue that originalism is an overrated solution, largely because current understandings of originalism, despite claims to the contrary, do not provide standards of decision that are sufficiently clear to control the Supreme Court's discretion. Conversely, some forms of nonoriginalist interpretation - in particular, those that rely on objective determinations of traditional or contemporary American societal values - may constrain the Court in meaningful ways. Relatedly, originalism may frustrate majoritarian self-government no less than these competing nonoriginalist methodologies, which, indeed, can be seen as relatively inoffensive to majoritarian values. If I am correct, critics of judicial activism might wish to reconsider their typical stance, that of embracing originalism and rejecting nonoriginalism as categorically illegitimate.

This essay is part of a symposium addressing "Judicial Activism: Same-Sex Marriage and the Aftermath of Proposition 8."

Constitutional Law, Constitutional Interpretation, Constitutional Theory, Jurisprudence, Substantive Due Process, Unenumerated Rights, Privacy, Liberty, Abortion, Sexuality, Same-Sex Marriage

Abstract:
In this article, I discuss and evaluate the unusually prominent role of religion in the 2000 presidential campaign and in the early presidency of George W. Bush. I contend that religion was invoked in five distinctive contexts, each requiring independent evaluation. First, I argue that the much-discussed "Charitable Choice" initiative, which was supported by both sides in the 2000 campaign, poses significant, albeit subtle, risks for religious liberty. I then address and evaluate the invocation of religion by George W. Bush, Al Gore, and Joe Lieberman in three additional contexts: in support of particular governmental policies; as a positive moral and social force in American society; and as evidence of their own personal character and morality. I contend that in each of these three contexts, religion is potentially relevant to worldly political concerns, and that its invocation therefore is neither surprising nor (categorically) inappropriate. Finally, focusing especially on the early Bush presidency, I discuss the invocation of religion in a fifth context, as a source of spiritual meaning. I suggest that in a broadly religious society such as ours, it sometimes is fitting for political leaders to make nonsectarian spiritual claims, but that they generally should avoid sectarian spiritual claims, especially claims that are explicitly or narrowly sectarian.

Constitutional Law, Establishment Clause, Funding, Religion and Politics, Religious Liberty

Abstract:
In his controversial but controlling opinion in Van Orden v. Perry, Justice Breyer rejected an Establishment Clause challenge to a Ten Commandments monument on the grounds of the Texas State Capital. Breyer argued that existing Establishment Clause formulations, including the Lemon and endorsement tests, were inadequate to resolve the case, so he relied instead on legal judgment, an approach informed by doctrinal and policy considerations but not controlled by any formal test.

In this Essay, I suggest that Justice Breyer may have been right in Van Orden-if not in his result, then at least in approaching the question as he did. More generally, I suggest that the search for a clear-cut doctrinal test or rule for religious expression in governmental settings, complete with yes-or-no check-off points, may be a mistaken or futile venture. There simply are too many constitutional values at work, and too many relevant variables.

In lieu of a categorical test or rule, I explore the possibility of a multivariable standard for resolving Establishment Clause questions in this context. Under this approach, the Supreme Court would consider four constitutional variables, which I link to a range of relevant and intersecting constitutional values. The variables address such factors as governmental coercion or aggressiveness, the nature and specificity of the religious expression, tradition, and the extent to which the expression is governmentally-as opposed to privately-crafted or sponsored. I explain and elaborate by applying the multivariable standard to easy cases, not-so-easy cases, and hard cases, including not only Van Orden but also the unresolved controversy over the under God language in the Pledge of Allegiance.

Constitutional Law, Constitutional Interpretation, First Amendment, Establishment Clause, Religious Expression and Symbolism, Religious Liberty, Religious Free Speech, Ten Commandments, Pledge of Allegiance, Justice Breyer

Abstract:
This article develops a general theory of the Establishment Clause that is grounded on a direct consideration of the relationship between the Supreme Court's constitutional doctrine and various theoretical models of judicial review. The Court's Establishment Clause doctrine is primarily separationist, but it includes a contradictory subtheme permitting the government to favor religion in certain circumstances. The author concludes that this doctrine cannot be defended on the basis of originalism, largely because the Establishment Clause was originally designed to serve the policy of federalism and because originalism cannot justify the Court's "incorporation" of the Establishment Clause into the Fourteenth Amendment for application to the states. The article also addresses process-oriented and common values theories of nonoriginalist judicial review, but concludes that these relatively nonactivist theories likewise cannot support the Court's doctrine.

The author then advances his own theory of nonoriginalist judicial review under the Establishment Clause, a concededly activist theory of political-moral reasoning. He argues that at least in its broad features, the Supreme Court's Establishment Clause doctrine, including both its dominant separationist component and its contradictory subtheme, can be explained and justified as a resolution of church-state issues that makes America stronger, both politically and morally. More specifically, he contends that the Court's doctrine works to ensure a proper respect for the religious and irreligious beliefs of individuals, supports our important societal interest in maintaining a religiously inclusive political community, and, at the same time, does not disserve the valuable role of religion in our country.

Constitutional Law, Constitutional Theory, Establishment Clause, Religion Clauses, Religious Liberty

Abstract:
This article addresses the theoretical integrity of the Supreme Court's decision in Bowers v. Hardwick, upholding criminal restrictions on homosexual conduct. It discusses several possible theories of nonoriginalist constitutional decisionmaking, including theories based on political process considerations, theories based on the enforcement of national societal values, and theories based on principles of political-moral philosophy. The article concludes that under any plausible theory of decisionmaking, the Court's ruling in Bowers is fundamentally inconsistent with its earlier "privacy" decisions, including especially its decisions protecting the right to abortion.

Constitutional Law, Constitutional Theory, Substantive Due Process, Sexuality

Abstract:
This article responds to Professor Mark Tushnet's article, "The Redundant Free Exercise Clause?" Although its analysis and specific conclusions are distinctive, the article reaches a general conclusion similar to Tushnet's - namely, that the contemporary Free Exercise Clause is largely redundant, in that it provides little protection that is not afforded independently by other First Amendment doctrines. The article first contends that the core principle of the contemporary Free Exercise Clause, the nondiscrimination requirement of Employment Division v. Smith, might be subsumed, perhaps entirely, within the free speech principle that disfavors content discrimination. To that extent, the Free Exercise Clause is redundant. The article then considers whether the Free Exercise Clause might have additional, and potentially non-redundant meaning. First, the Clause might not merely forbid purposeful discrimination against religion; it might include a more robust requirement of "general applicability." Second, the Clause might provide some non-redundant constitutional protection against laws that are nondiscriminatory and generally applicable. Third, even when the Clause does no independent doctrinal work, it might have doctrinal significance by informing the particular substance of the Supreme Court's other First Amendment doctrines.

The article contends that the exercise of religion now receives only limited constitutional protection, and very little of that protection is grounded distinctively in the Free Exercise Clause. It concludes by highlighting certain basic trends - philosophical, jurisprudential, and religious - that may help explain not only the Court's limited protection of religious exercise as such, but also the migration of religious freedom claims to other doctrinal rubrics.

Constitutional Law, First Amendment, Free Exercise Clause, Free Speech Clause, Religious Liberty

Abstract:
This article addresses the constitutionality and the constitutional significance of the Religious Freedom Restoration Act of 1993 (RFRA), through which Congress, relying on Section 5 of the 14th Amendment, attempted to repudiate the Supreme Court's restrictive interpretation of the Free Exercise Clause, as announced in Employment Division v. Smith, and to adopt in its place a more generous regime of religious freedom. The article advances two major propositions. First, it contends that despite the Act's noble purpose, RFRA circumvents the process of constitutional amendment, frustrates the Supreme Court's role as the primary interpreter of the Constitution, and improperly intrudes on federalistic values. As a result, the Act exceeds the power of Congress under Section 5, at least insofar as the Act applies to state and local governmental action. Second, the article suggests that even though the Act is unconstitutional, it nonetheless is constitutionally significant in the sense that it should be relevant to the Supreme Court's own interpretation of the Free Exercise Clause. Elaborating a theory of constitutional evolution, the article claims that RFRA reflects contemporary societal values that should properly inform the meaning of the Free Exercise Clause. On this view, the Act - along with more traditional sources of constitutional meaning - could properly be used by the Supreme Court as support for the judicial adoption of a more generous interpretation of the Free Exercise Clause.

Constitutional Law, Constitutional Theory, Congressional Power, Fourteenth Amendment Section 5 Power, Free Exercise Clause, Religious Liberty

Abstract:
In this article, I sketch the history of religious liberty in the United States and speculate on its future. I explain the Founders' "original theology" of religious liberty, which granted a privileged status to Christianity and which, more generally, regarded religion as distinct and distinctly important. I then discuss how, over time, the original theology has gradually given way to the principle of "formal neutrality," i.e., equal treatment and nondiscrimination not only between and among religions, but also between religion and nonreligion. This principle currently plays a powerful role under both the Free Exercise and the Establishment Clauses. Looking to the future, moreover, I contend that various philosophical, religious, jurisprudential, and political forces support the continued and perhaps increasing importance of formal neutrality. This notion of formal neutrality - equal, not special, treatment for religion - tends to belie the Founders' claim that religion is distinct and distinctly important. For this reason among others, I conclude that the future of religious liberty may be in jeopardy.

Constitutional Law, Establishment Clause, Free Exercise Clause, Religion Clauses, Religious Liberty

Abstract:
This book provides a theoretical framework for conceptualizing and evaluating the Supreme Court’s decisionmaking under the Religion Clauses of the First Amendment. It discusses the original understanding, offers a brief history of American religious liberty, and identifies a variety of embedded and evolving constitutional values that can be seen to influence the Court’s constitutional doctrine. These values include religious equality and voluntarism; the protection of religious identity; the protection of religion from governmental contamination and of government from improper religious involvement; and the preservation of traditional governmental practices. Using these values to construct a framework for analysis, the book goes on to concisely explain and evaluate all of the major facets of the Court’s decisionmaking in this area, ranging from the definition of “religion” and other general questions to the many and diverse strands of the Court’s specific doctrine under the Free Exercise and Establishment Clauses.

In this SSRN paper, I reproduce the table of contents and the final chapter of the book. In this final chapter, I summarize some of the book’s basic themes and conclusions, and I suggest that the Court’s contemporary decisionmaking is increasingly driven by the value of religious equality, understood in a strictly formal sense, along with the values of judicial restraint and federalism. I critique the Court’s selective emphasis on these values, which comes at the expense of other and competing values that the Religion Clauses can be understood to promote.

Constitutional Law, Constitutional Interpretation, First Amendment, Establishment Clause, Free Exercise Clause, Religious Liberty

Abstract:
In addressing the role of religion in politics and law, American political theory has strongly embraced the principle of religious equality. In this article, I explain how this principle has evolved and how it has nourished the privatization of religion and the secularization of public discourse by generating the view that public evaluations of religion are inappropriate. Under this view, religion is a private good that lacks public significance. As matters merely of private taste, matters that cannot be evaluated publicly, religious positions on political issues are not to be "imposed" on other citizens.

I challenge this reading of the equality principle, contending that different religions and different religious arguments can and should be distinguished. I argue that some religious claims have more value than others in American political discourse and legal policymaking, and I propose various criteria by which competing religious traditions might be compared and contrasted. I discuss criteria that include the religion's method of determining truth, its basic stance toward the modern world, and its substantive positions on political and moral issues. Utilizing these and other criteria, I evaluate the role of religious fundamentalists, religious modernists, and a group I call "religious reconcilers." I question the value of fundamentalist and modernist contributions, but conclude that religious reconcilers can play a valuable role, potentially enriching our politics and our law.

Constitutional Law, Establishment Clause, Free Exercise Clause, Religion Clauses, Religious Liberty, Religion and Politics

Abstract:
According to the much-contested "purpose" requirement of the Supreme Court's Establishment Clause doctrine, laws must be grounded on secular as opposed to religious purposes. This article advances a normative argument concerning how this requirement should be construed. The author distinguishes between different types of religious purposes and different types of religious beliefs. Most importantly, he distinguishes between "inerrant" religious beliefs, which are characterized by a certain type of closed-mindedness, and "dialogic" religious beliefs, which are not. After developing a suggested analytical framework, the author applies his approach to the issues of school prayer, evolution, and abortion. He then confront various objections that might be made to his argument, including the claim that all religious beliefs must he treated alike.

Constitutional Law, Establishment Clause, Religion and Politics, Religious Liberty

Abstract:
This article discusses and analyzes City of Boerne v. Flores, the Supreme Court's 1997 decision invalidating the Religious Freedom Restoration Act of 1993 (RFRA) as applied to state and local governments, and it explores a variety of ways in which Congress might respond to Boerne with legislation that might survive constitutional scrutiny. In particular, the article addresses the following statutory possibilities: more narrowly tailored legislation grounded on Section 5 of the Fourteenth Amendment; RFRA-like legislation grounded on Congress's power over interstate commerce or its power to implement treaties; and spending-power legislation imposing RFRA-like conditions on the receipt of federal funding by state and local governments. Based on an analysis of constitutional doctrine and a consideration of relevant constitutional policies, the article concludes that spending-power legislation might be not only the safest congressional response to Boerne, but also the most sensible and appropriate.

Constitutional Law, Congressional Power, Commerce Power, Spending Power, Treaty Power, Fourteenth Amendment Section 5 Power, Free Exercise Clause, Religious Liberty

Abstract:
This article responds to an article by Professor Michael Stokes Paulsen, entitled "Lemon Is Dead," in which Paulsen interprets the Supreme Court's decision in Lee v. Weisman to repudiate the Establishment Clause test of Lemon v. Kurtzman and to replace it with a test that limits the Clause to cases involving direct or indirect coercion. The article disputes Paulsen's interpretation of Weisman, and it also disputes his normative argument in support of the coercion approach. It contends that Lemon survives Weisman, and that Lemon's multi-faceted and context-specific approach, however vague, is preferable to a test that focuses exclusively on the problem of coercion.

Constitutional Law, Establishment Clause, Religious Liberty