More 'Vitiating Paradoxes': A Reply to Steven D. Smith — and Smith

31 Pages Posted: 24 Apr 2014 Last revised: 8 May 2014

See all articles by Paul Horwitz

Paul Horwitz

University of Alabama School of Law

Date Written: April 22, 2014

Abstract

This is a reply to Steven D. Smith's Brandeis Lecture, "The Last Chapter?" That lecture is substantially drawn from the concluding pages of his fine recent book, The Rise and Decline of American Religious Freedom. In the lecture and the book, Smith explores what he calls some "vitiating paradoxes" of some of the key concepts that undergird the conventional account of American religious freedom, and argues that those paradoxes may render religious freedom especially vulnerable in an age of increasing liberal egalitarianism. He also offers a competing account of religious freedom, one that involves both a "soft constitutionalism" approach to the Establishment Clause and a revival of some form of "freedom of the church."

My reply is basically an internal account, supportive in some respects and critical in others. One of the main contributions that Smith has made to law and religion scholarship over the years is his skillful deployment of critical tools to reveal flaws in the underpinnings of Religion Clause law and theory. He is, I suggest, the charter member of the law and religion branch of a rather small but valuable school: Conservative Critical Legal Studies. In this reply, I take his critical views on board and wonder where, if anywhere, the "potentially vitiating paradoxes" that he identifies in the conventional account of religious freedom end; I also apply Smith's critical framework to the competing account of American religious freedom that he offers. In particular, I question his recommendation of some form of "soft constitutionalism" limited essentially to the Establishment Clause; explore the difficulties involved in what I suggest is a growing reconciliation, including among conservatives, to the Supreme Court's decision in Employment Division v. Smith; and ask whether we might not view arguments for "freedom of the church" as a kind of salvaging device for those who favor a "soft" or jurisdictional reading of the Establishment Clause, and who have come around on Employment Division v. Smith, while still seeking to preserve some measure of church autonomy.

Keywords: Steven D. Smith, Religion Clauses, law and religion, religious freedom, religious liberty, Employment Division v. Smith, Hosanna-Tabor, church autonomy, freedom of the church, Free Exercise Clause, Establishment Clause, soft constitutionalism, Critical Legal Studies

Suggested Citation

Horwitz, Paul, More 'Vitiating Paradoxes': A Reply to Steven D. Smith — and Smith (April 22, 2014). Pepperdine Law Review, Forthcoming; U of Alabama Legal Studies Research Paper No. 2427776. Available at SSRN: https://ssrn.com/abstract=2427776

Paul Horwitz (Contact Author)

University of Alabama School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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