Law Commons^™

Why The Ministerial Exception Is Consistent With Smith—And Why It Makes Sense, William A. Galston

San Diego Law Review

This conference puts on the table two linked questions: Can Hosanna-Tabor be reconciled with Employment Division v. Smith and, if so, on what basis? Let me say straightway that I have at most an amateur’s understanding of constitutional law and jurisprudence. I bring to our questions some intuitions about the best framework for thinking about them, and whatever light my home discipline of political theory can shed on them. I have also benefitted enormously from Christopher Lund’s splendid law review article on the topic of this conference.

Rfra, State Rfras, And Religious Minorities, Christopher C. Lund

San Diego Law Review

Now fully a generation ago, the Supreme Court decided Employment Division v. Smith, which held that religious believers generally have no right to exemptions from neutral and generally applicable laws. But in the twenty-five years since Smith, the situation has grown more complex. Shortly after Smith, Congress passed the Religious Freedom Restoration Act (RFRA) and later the Religious Land Use and Institutionalized Persons Act (RLUIPA). And many states followed suit, either adopting state Religious Freedom Restoration Acts (state RFRAs) or construing generously the religious-freedom provisions of their state constitutions. As a result, the compelling-interest test discarded by Smith now again …

The Opposite Of Anarchy And The Transmission Of Faith: The Freedom To Teach After Smith, Hosanna-Tabor, Obergefell, And The Ascendancy Of Sexual Expressionism, Helen M. Alvaré

San Diego Law Review

There are several avenues available for protecting religious schools’ freedom but none involving rote application of the summary holdings of Smith or Hosanna-Tabor. This shouldn’t surprise; little is simple where the religion clauses are concerned. Nevertheless, to provide free exercise and nonestablishment “on the ground” and to allow core tenets of Judeo-Christian traditions a genuine, not just theoretical, chance of reaching the next generation, the Supreme Court needs to find a way within the labyrinth of its current First Amendment jurisprudence to allow religious schools and parents the freedom to teach.

This Article will treat this question as follows. Part …

Master Metaphors And Double-Coding In The Encounters Of Religion And State, Perry Dane

San Diego Law Review

That term “existential encounter” is meant to convey several important ideas. First, it suggests that what is at stake here is not merely a set of legal doctrines or policy prescriptions, but something deeper and more constitutive. The sovereign nation-state, in some sense, looks out at the world around it and sees other entities that do not easily fit into its own internal sovereign architecture. Some of these are other nation-states. Some might be other types of essentially secular, but non-state, human associations. And others are, or should be, communities—large and small, organized or not, united or splintered—whose normative commitment …

Free Exercise By Moonlight, Marc O. Degirolami

San Diego Law Review

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.

2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.

3. Hosanna-Tabor has shown itself to be feeble. It has …