The Supreme Court's Hands-Off Approach to Religious Doctrine: An Introduction
Samuel J. Levine
Touro College - Jacob D. Fuchsberg Law Center
Notre Dame Law Review, Vol. 84, No. 2, 2009
Pepperdine University Legal Studies Research Paper No. 2009/6
Although the current state of the United States Supreme Court's Religion Clause jurisprudence is an area of considerable complexity, the Court's approach is largely premised upon a number of basic underlying principles and doctrines. This Symposium issue explores an underlying principle of the Supreme Court's current Religion Clause jurisprudence, the Court's hands-off approach to questions of religious practice and belief. The Symposium is based on the program of the Law and Religion Section at the 2008 Annual Meeting of the Association of American Law Schools, in which a panel of leading scholars was asked to evaluate the Court's approach. The program description invited a variety of modes of analysis, ranging from descriptive considerations of the extent to which the Court's doctrine can, indeed, be characterized as hands-off, to normative justifications for - and critiques of - the Court's approach, to more practical and consequentialist arguments supporting or opposing the Court's position. Taken together, the essays in this Symposium demonstrate wide areas of disagreement among scholars as to both the conceptual underpinnings and the normative and policy justifications for the Supreme Court's hands-off approach to questions of religious practice and belief. In addition, there appears to be a correlation between scholars' views toward the hands-off approach and their broader attitudes toward the function of religion and the Religion Clauses in the context of American society. To the extent that the Court likewise premises its hands-off approach upon a more general Religion Clause jurisprudence, it remains to be seen whether, along with changes in other areas of Religion Clause doctrine, the Supreme Court might rethink both the conceptual and substantive components of the hands-off approach.
Number of Pages in PDF File: 15
Keywords: Supreme Court, religion clause
JEL Classification: K19Accepted Paper Series
Date posted: April 10, 2009 ; Last revised: July 22, 2013
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