What If Religion Is Not Special?
For helpful comments and discussions, I thank Charles Barzun, Christopher Eisgruber, Chad Flanders, Richard Garnett, Abner Greene, John Harrison, Andrew Koppelman, Jody Kraus, Douglas Laycock, Matthew Lister, Christopher Lund, Charles Mathewes, James Nelson, Saikrishna Prakash, George Rutherglen, Fred Schauer, Seana Shiffrin, Lawrence Solum, Mark Storslee, Nelson Tebbe, Pierre-Hugues Verdier, Xiao Wang, Free Williams, and audiences at Brooklyn Law School, the University of Pennsylvania Law School, and the Nootbaar Institute’s Annual Conference on Religion and Ethics at the Pepperdine University School of Law. I owe special thanks to Leslie Kendrick and Richard Schragger, who read and commented on multiple drafts. I am also grateful to Adam Yost for excellent research assistance.
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Leading accounts of the First Amendment’s Religion Clauses fail to provide a coherent and morally attractive position on whether religion warrants special treatment as compared with secular ethical and moral doctrines. Focusing on two central issues involving whether laws must have a secular purpose and whether religious exemptions are constitutionally mandatory, this Article rejects existing theories as either theoretically inconsistent or substantively mistaken. If religion does not warrant special treatment, then it is important to ask what our attitude should be toward the constitutional text. Under originalist theories of constitutional interpretation, the Religion Clauses should be considered morally regrettable. Under nonoriginalist theories, there may be interpretations of the text that allow for the possibility of moral reconciliation. Either way, rejecting the idea that religion is special requires reassessing our understanding of the Religion Clauses.
Thanks to participants at the University of Colorado, University of Texas, and University of Chicago Workshops for thoughtful feedback, to my First Amendment discussion group for helping refine my thinking on the topic, and to Evelyn Douek for all her ideas and edits.
For decades, it has been black letter law that the informal exercise of government power can violate the First Amendment when it creates an “informal system of censorship.” Lower courts have been deeply divided about what kinds of government actions create this kind of informal system. The Court’s recent NRA v. Vullo decision holds that officials engage in informal censorship whenever they intentionally use informal power to evade First Amendment constraints on their formal powers. Vullo clarified that the rule against informal censorship is categorical: officials may never evade constitutional constraints by threatening harm or promising benefits to private parties, no matter how they attempt to do so. This Article argues that the Court's reaffirmation of the categorical nature of the First Amendment rule against informal censorship is very good and comes at a critical time. The Article examines the doctrine prior to the decision, the significance of Vullo’s intervention, and its implications.
Thanks to participants at the University of Colorado, University of Texas, and University of Chicago Workshops for thoughtful feedback, to my First Amendment discussion group for helping refine my thinking on the topic, and to Evelyn Douek for all her ideas and edits.
For decades, it has been black letter law that the informal exercise of government power can violate the First Amendment when it creates an “informal system of censorship.” Lower courts have been deeply divided about what kinds of government actions create this kind of informal system. The Court’s recent NRA v. Vullo decision holds that officials engage in informal censorship whenever they intentionally use informal power to evade First Amendment constraints on their formal powers. Vullo clarified that the rule against informal censorship is categorical: officials may never evade constitutional constraints by threatening harm or promising benefits to private parties, no matter how they attempt to do so. This Article argues that the Court's reaffirmation of the categorical nature of the First Amendment rule against informal censorship is very good and comes at a critical time. The Article examines the doctrine prior to the decision, the significance of Vullo’s intervention, and its implications.
The authors are grateful to workshop participants at Michigan, Virginia, Stanford, Yale, the Junior Faculty Federal Courts Workshop, the National Conference of Constitutional Law Scholars, Gregory Ablavsky, Payvand Ahdout, Ash Ahmed, Akhil Amar, William Baude, Rachel Bayefsky, Curt Bradley, Sam Bray, Jud Campbell, Dan Deacon, Abbe Gluck, Tara Leigh Grove, Bill Eskridge, Harold Koh, Alexi Lahav, Daniel Markovits, Bernadette Meyler, Trevor Morrison, Julian Mortenson, Doug NeJaime, Robert Post, Sai Prakash, Elizabeth Reese, Cristina Rodriguez, Shalev Roisman, Stephen Sachs, David Schleicher, Joseph Schottenfeld, Reva Seigel, Scott Shapiro, and Taisu Zhang, for generous comments. We are also grateful to the editors of The University of Chicago Law Review, and especially to Elijah Greisz, for superb editorial assistance.
The authors are grateful to workshop participants at Michigan, Virginia, Stanford, Yale, the Junior Faculty Federal Courts Workshop, the National Conference of Constitutional Law Scholars, Gregory Ablavsky, Payvand Ahdout, Ash Ahmed, Akhil Amar, William Baude, Rachel Bayefsky, Curt Bradley, Sam Bray, Jud Campbell, Dan Deacon, Abbe Gluck, Tara Leigh Grove, Bill Eskridge, Harold Koh, Alexi Lahav, Daniel Markovits, Bernadette Meyler, Trevor Morrison, Julian Mortenson, Doug NeJaime, Robert Post, Sai Prakash, Elizabeth Reese, Cristina Rodriguez, Shalev Roisman, Stephen Sachs, David Schleicher, Joseph Schottenfeld, Reva Seigel, Scott Shapiro, and Taisu Zhang, for generous comments. We are also grateful to the editors of The University of Chicago Law Review, and especially to Elijah Greisz, for superb editorial assistance.
The authors are grateful to workshop participants at Michigan, Virginia, Stanford, Yale, the Junior Faculty Federal Courts Workshop, the National Conference of Constitutional Law Scholars, Gregory Ablavsky, Payvand Ahdout, Ash Ahmed, Akhil Amar, William Baude, Rachel Bayefsky, Curt Bradley, Sam Bray, Jud Campbell, Dan Deacon, Abbe Gluck, Tara Leigh Grove, Bill Eskridge, Harold Koh, Alexi Lahav, Daniel Markovits, Bernadette Meyler, Trevor Morrison, Julian Mortenson, Doug NeJaime, Robert Post, Sai Prakash, Elizabeth Reese, Cristina Rodriguez, Shalev Roisman, Stephen Sachs, David Schleicher, Joseph Schottenfeld, Reva Seigel, Scott Shapiro, and Taisu Zhang, for generous comments. We are also grateful to the editors of The University of Chicago Law Review, and especially to Elijah Greisz, for superb editorial assistance.
This Article considers how and under what circumstances the “general law,” a species of unwritten law grounded in legal customs and practices shared across different legal jurisdictions, might be used in modern constitutional interpretation. Constitutional originalists have increasingly argued that central provisions of the Constitution incorporate various bodies of general law. This Article argues that, even if the Constitution did incorporate various bodies of general law, most of those bodies of law have now been emptied of content, and must remain empty without profound changes in the practice of federal judicial review. Because the general law requires that nonfederal judicial actors such as state courts, governors, legislatures, the President, and perhaps foreign legal systems participate in the development of public law norms and customs, a general law revival would involve eliminating, or at least curtailing, federal judicial supremacy and would therefore impliedly reject nearly a hundred years of public law precedent.