Constitutional Law Commons^™

Religious Truth, Pluralism, And Secularization: The Shaking Foundations Of American Religious Liberty, Daniel O. Conkle

Articles by Maurer Faculty

In this Essay, I recount John Locke’s 1689 Letter Concerning Toleration and explain how religious liberty continues to rest on Lockean and related justifications. These various justifications depend in part on religious-moral reasoning (both Christian and non-Christian) and in part on political-pragmatic considerations. I then discuss recent and ongoing developments in the American religious landscape, including a radical increase in religious diversity, the modernization of traditional faiths, the individualization or "spiritualization" of religion, and the increasing secularization of individual belief structures. I suggest that these developments, over time, may seriously threaten the underlying religious-moral and political-pragmatic foundations of religious liberty …

Book Review. Religious Liberty In America: The First Amendment In Historical And Contemporary Perspective, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

The Free Exercise Clause: How Redundant, And Why?, Daniel O. Conkle

Articles by Maurer Faculty

This article responds to Professor Mark Tushnet's article, "The Redundant Free Exercise Clause?" Although its analysis and specific conclusions are distinctive, the article reaches a general conclusion similar to Tushnet's - namely, that the contemporary Free Exercise Clause is largely redundant, in that it provides little protection that is not afforded independently by other First Amendment doctrines. The article first contends that the core principle of the contemporary Free Exercise Clause, the nondiscrimination requirement of Employment Division v. Smith, might be subsumed, perhaps entirely, within the free speech principle that disfavors content discrimination. To that extent, the Free Exercise Clause …

Different Religions, Different Politics: Evaluating The Role Of Competing Religious Traditions In American Politics And Law, Daniel O. Conkle

Articles by Maurer Faculty

In addressing the role of religion in politics and law, American political theory has strongly embraced the principle of religious equality. In this article, I explain how this principle has evolved and how it has nourished the privatization of religion and the secularization of public discourse by generating the view that public evaluations of religion are inappropriate. Under this view, religion is a private good that lacks public significance. As matters merely of private taste, matters that cannot be evaluated publicly, religious positions on political issues are not to be "imposed" on other citizens.

I challenge this reading of the …

Lemon Lives, Daniel O. Conkle

Articles by Maurer Faculty

This article responds to an article by Professor Michael Stokes Paulsen, entitled "Lemon Is Dead," in which Paulsen interprets the Supreme Court's decision in Lee v. Weisman to repudiate the Establishment Clause test of Lemon v. Kurtzman and to replace it with a test that limits the Clause to cases involving direct or indirect coercion. The article disputes Paulsen's interpretation of Weisman, and it also disputes his normative argument in support of the coercion approach. It contends that Lemon survives Weisman, and that Lemon's multi-faceted and context-specific approach, however vague, is preferable to a test that focuses exclusively on the …

Does The United States Need An Establishment Clause?: God Loveth Adverbs, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.