“Establishment’s Political Priority to Free Exercise”

I have a new paper, Establishment’s Political Priority to Free Exercise, forthcoming in the Notre Dame Law Review. Here is the abstract:

American law is beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.

This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls “the establishment”—has now, and has always had, political priority to rights of exemption from it. This basic claim may be narrowed to the issue of church and state, but it is simply a more focused version of the same thing: the establishment’s civil religion—the set of transcendent, church-state propositions that supports the political regime’s legitimacy and authority—has political priority to rights of exemption from it. Narrowed further, the basic claim also reflects the dynamics of Religion Clause doctrine: religious exemption’s contemporary ascendance is an epiphenomenal consequence of the civil religion dismantling effected by the Supreme Court’s Religion Clause doctrine in the twentieth century and consolidated by the Court in the twenty first. Though today’s most divisive law and religion controversies often take surface-level legal shape as conflicts about free exercise exemption, their deeper source is a long-gestating transformation in the nature of the American political regime’s civil religion establishment. Today’s free exercise cases are the latest skirmishes in yesterday’s disestablishment wars. They reflect disagreements over how best to characterize the work of the dismantlers, as well as efforts toward consolidation of that work to achieve a new civil religion regime. And what they show is that in twenty-first century America, just as ever, establishment still takes political priority to free exercise.

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In New York ex rel. James v. Griepp, the Second Circuit affirmed a New York district court’s refusal to grant a preliminary injunction against anti-abortion protesters who had clashed with volunteer clinic escorts.
  • In Resurrection School v. Hertel, a Michigan Catholic school requested an en banc hearing after the Sixth Circuit denied the school’s claim that Michigan’s mask mandate violated the school’s religious beliefs by preventing students from participating fully in their Catholic education.
  • After Washington state announced a COVID-19 vaccine requirement for all employees, the Bishop of Spokane stated that conscience rights should be respected but that priests should not sign documents in support of conscience exemptions.
  • The Biden administration is reviewing a federal rule that prohibits public universities from removing funding from religious student organizations whose policies conflict with campus anti-discrimination rules.
  • Proof of COVID-19 vaccination status or a negative COVID-19 test is now required to visit some of Italy’s most famous Catholic cathedrals.
  • Under President Xi Jinping, freedom of religion in China is being restricted. Examples of the reported suppression include: requiring independent churches to join religious organizations supervised by the Chinese Communist Party, detaining Christians that criticize the government, and banning the sale of the Bible.
  • The Gujarat High Court, in Mumbai, India, granted protection to interfaith couples when it passed an interim order suspending certain provisions of the Gujarat Freedom of Religion Act.