The (Re)Turn to History in Religion Clause Law and Scholarship

Abstract

In this Introduction, I offer a brief review of and explanation for the role history has played in the Supreme Court's religion clause jurisprudence and scholarly efforts. History's role is powerful in the Establishment Clause context, which I will discuss first. In stark contrast, history played almost no role in the Free Exercise Clause context until 1990, in response to the (in)famous Employment Division v. Smith. Thereafter, I will discuss the contributions of the Symposium participants which better our understanding of the proper role of history in, and the historical background of, the religion clauses.

Keywords: establishment, free exercise, originalism, history, supreme court