Experimenting with Religious Liberty: The Quasi-Constitutional Status of Religious Exemptions
6 Elon Law Review (2014)
81 Pages Posted: 11 Jun 2014
Date Written: 2014
This article deals with an episode of constitutional development in which the voice of the people, rather than that of the Supreme Court, has been dominant. The constitutional value at issue is religion - its free exercise and its establishment. The Court has taken a step back in developing this constitutional value. Under Establishment Clause jurisprudence, despite fairly extensive doctrinal development, the Supreme Court has recently refrained from hearing some cases that it might have heard in the past, under the rubric of nonjusticiability. Much more dramatically, the Court limited the substantive reach of the Free Exercise Clause in 1990, in Employment Division v. Smith, leaving religious believers to seek relief elsewhere from laws deemed offensive to religious values.
Keywords: religious exemptions, Free Exercise Clause, constitutional interpretation, religiously motivated conduct, secularism, RFRA, RLUIPA, state RFRAs, ACA, contraception mandate, nonreligious commitments, Establishment Clause, popular constitutionalism, religious tolerance
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