“Constitutional Contraction: Religion and the Roberts Court”

I’ve posted a new paper, Constitutional Contraction: Religion and the Roberts Court. Here’s the abstract:

This essay argues that the most salient feature to emerge in the first decade of the Roberts Court’s law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways. 

First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its two predecessors—the Rehnquist and Burger Courts—both of which exercised judicial review more regularly. 

Second, contraction in the range of voting patterns. The votes of the Justices in law and religion cases overwhelmingly are either unanimous or split 5-4, with relatively few separate dissents or concurrences expressing distinctive approaches, and with the split correlating with partisan political or ideological divisions. The “liberal” and “conservative” wings vote in bloc, and frequently reason in bloc as well. This again contrasts with the voting patterns of prior Courts in religious freedom cases.

Third, contraction in coverage. As a substantive matter, the Court is narrowing the religion clauses. Every member of the Court seems now to accept that Employment Division v. Smith properly interpreted the Free Exercise Clause. Matters are more complicated for the Establishment Clause, where there is far greater division among the Justices. Nevertheless, the essay claims that the Court is moving in a variety of ways toward a narrow interpretation of the Establishment Clause as well.

Whether the Roberts Court’s contraction of the religion clauses, and its general preference for narrow readings of both, are positive developments will depend on one’s views about fundamental questions of constitutional interpretation. Yet there is a conceptual unity to the Court’s approach—logical and complementary, even if not inevitable: just as the Rehnquist Court narrowed the scope of constitutional protection for free exercise, so, too, is the Roberts Court narrowing the scope of constitutional prohibition under the Establishment Clause. In this corner of constitutional law, the Court is gradually withdrawing from the scene.

Comments are welcome!

Lorberbaum, “In God’s Image: Myth, Theology, and Law in Classical Judaism”

In November, Cambridge University Press will release “In God’s Image: Myth, Theology, and Law in Classical Judaism” by Yair Lorberbaum (Bar-Ilan University, Israel). The publisher’s description follows:

The idea of creation in the divine image has a long and complex history. While its roots apparently lie in the royal myths of Mesopotamia and Egypt, this book argues that it was the biblical account of creation presented in the first chapters of Genesis and its interpretation in early rabbinic literature that created the basis for the perennial inquiry of the concept in the Judeo-Christian tradition. Yair Lorberbaum reconstructs the idea of the creation of man in the image of God (tselem Elohim) attributed in the Midrash and the Talmud. He analyzes meanings attributed to tselem Elohim in early rabbinic thought, as expressed in Aggadah, and explores its application in the normative, legal, and ritual realms.