Adding Complexity to Confusion and Seeing the Light: Feminist Legal Insights and the Jurisprudence of the Religion Clauses

Abstract

Feminist legal insights are constantly developing and changing in response to the following question: What is freedom and how should we best attempt to achieve it? Because this same question is very much at issue in the interpretation of the religion clauses, feminist legal insights are an important aid to their meaning. The fundamental feminist recognition is that there is value in preserving a diversity of perspectives on any particular issue, even though those perspectives may be in great conflict. This recognition has significance for the jurisprudence of the religion clauses as well, where religious freedom for all is the goal. Any particular conception of religious freedom must yield to the value of preserving all conceptions. This value can guide the Court in its interpretation of both the establishment clause and the free exercise clause, thereby resolving the apparent tension between them.

Keywords: Constitution, First Amendment, Free Exercise Clause, Establishment Clause, Feminist Legal Insights