Religion Law

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Volume 92.1
Reestablishing Religion
Richard Schragger
Walter L. Brown Professor of Law, University of Virginia School of Law.

For comments and discussion, we thank Arvind Abraham, Alan Brownstein, Richard Garnett, Frederick Gedicks, Linda Greenhouse, Aziz Huq, John C. Jeffries, Jr., Michael Klarman, Andrew Koppelman, Martin Lederman, Leah Litman, Ira C. Lupu, James Nelson, James Oleske, Richard Primus, Frank Ravitch, Kate Redburn, Zalman Rothschild, James E. Ryan, Elizabeth Sepper, Anna Su, Mark Tushnet, and participants in the Nootbaar Workshop at Pepperdine Caruso Law; the Workshop in Law, Philosophy, and Political Theory at the Kadish Center for Morality, Law & Public Affairs at UC Berkeley School of Law; the “Text and (What Kind of) History?” conference hosted by the Stanford Constitutional Law Center at Stanford Law School; and the Cornell Summer Faculty Workshop. Generous support was provided by the Milton and Eleanor Gould Fund at Cornell Law School. For research assistance, we thank Io Jones, Mackenzie Kubik, Leah Schwartz, and Mary Triplett.

Micah Schwartzman
Hardy Cross Dillard Professor of Law, University of Virginia School of Law.

For comments and discussion, we thank Arvind Abraham, Alan Brownstein, Richard Garnett, Frederick Gedicks, Linda Greenhouse, Aziz Huq, John C. Jeffries, Jr., Michael Klarman, Andrew Koppelman, Martin Lederman, Leah Litman, Ira C. Lupu, James Nelson, James Oleske, Richard Primus, Frank Ravitch, Kate Redburn, Zalman Rothschild, James E. Ryan, Elizabeth Sepper, Anna Su, Mark Tushnet, and participants in the Nootbaar Workshop at Pepperdine Caruso Law; the Workshop in Law, Philosophy, and Political Theory at the Kadish Center for Morality, Law & Public Affairs at UC Berkeley School of Law; the “Text and (What Kind of) History?” conference hosted by the Stanford Constitutional Law Center at Stanford Law School; and the Cornell Summer Faculty Workshop. Generous support was provided by the Milton and Eleanor Gould Fund at Cornell Law School. For research assistance, we thank Io Jones, Mackenzie Kubik, Leah Schwartz, and Mary Triplett.

Nelson Tebbe
Jane M.G. Foster Professor of Law, Cornell Law School.

For comments and discussion, we thank Arvind Abraham, Alan Brownstein, Richard Garnett, Frederick Gedicks, Linda Greenhouse, Aziz Huq, John C. Jeffries, Jr., Michael Klarman, Andrew Koppelman, Martin Lederman, Leah Litman, Ira C. Lupu, James Nelson, James Oleske, Richard Primus, Frank Ravitch, Kate Redburn, Zalman Rothschild, James E. Ryan, Elizabeth Sepper, Anna Su, Mark Tushnet, and participants in the Nootbaar Workshop at Pepperdine Caruso Law; the Workshop in Law, Philosophy, and Political Theory at the Kadish Center for Morality, Law & Public Affairs at UC Berkeley School of Law; the “Text and (What Kind of) History?” conference hosted by the Stanford Constitutional Law Center at Stanford Law School; and the Cornell Summer Faculty Workshop. Generous support was provided by the Milton and Eleanor Gould Fund at Cornell Law School. For research assistance, we thank Io Jones, Mackenzie Kubik, Leah Schwartz, and Mary Triplett.

In the last few years, the Supreme Court has upended its doctrine of religious freedom under the First Amendment. Now, the government must treat religion equally with respect to providing public benefits. But it must also grant special exemptions from regulations that burden religion. We refer to this regime as structural preferentialism. This Article offers an external, political account of changes in Free Exercise and Establishment Clause jurisprudence by analyzing them as if they were the result of political conflicts between competing interest groups. Focusing on the role of religion in political polarization, rapid disaffiliation from denominations, and shifting strategies to fund religious schools, this political perspective has explanatory and predictive power that extends beyond conventional legal arguments about text, history, and precedent. Applying this approach, we predict that structural preferentialism will transform First Amendment doctrine and provide material grounds for its own entrenchment.

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