This afternoon I was delighted to participate in a panel at the Religious Theory Conference dealing with various subjects involving the First Amendment. My own talk dealt with the Free Exercise Clause, and it focused on the question whether the doctrine which has grown up around Employment Division v. Smith is as predictable (as a guide to both judges and litigants) as its rhetoric has suggested to its supporters and opponents alike.
The second speaker was Mike Helfand (Pepperdine), one of the conference’s co-organizers, who gave a very interesting talk drawn from an excellent paper titled, “Litigating Religion.” Mike’s provocative thesis is that the current approach to the issue of whether civil courts are capable of adjudicating religious disputes — one which posits total jurisdictional incompetence — is misguided. Instead, civil courts should be required to “defer” to religious institutions’ authoritative interpretation of their religious tenets, but where there is no such interpretation, courts should step in.
The third speaker on our panel was Dean Raymond Pierce of North Carolina Central Law School. Dean Pierce spoke about the coercion test sometimes mentioned as the operative test for certain Establishment Clause issues. He focused particularly on the issue of school prayer, and offered an impassioned criticism of the ways in which current Supreme Court doctrine prohibits certain kinds of religious expressions in public fora.
The final speaker was Mark Strasser (Capital University), who discussed the endorsement test and its evolution since Justice O’Connor first formulated it. He considered Justice Alito’s interesting twist on the test in Salazar v. Buono, where Justice Alito argued that removal of a religious symbol might convey disrespect or disparagement of religion according to the reasonable observer standard.