Freedom of Religion

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Comment
Volume 92.7
Necessity in Free Exercise
Brady Earley
B.S., B.A. 2021, Brigham Young University; J.D., Ph.D. Candidate in Political Science, The University of Chicago.

I would like to thank Professor Geoffrey Stone and members of The University of Chicago Law Review including Owen Hoepfner, Jack Brake, Hannah Zobair, Ryan Jain-Liu, Zoë Ewing, Jackson Cole, and others for contributing to the publication of this Comment.

The Free Exercise Clause is a broadly worded constitutional prohibition against government intrusion on religious exercise. To construct limits, courts have consistently required government officials to demonstrate the necessity of state action burdening religion. Yet government officials regularly fail to produce evidence of necessity, leaving judges to intuit or assume whether necessity exists. In this Comment, Brady Earley offers a better way. Using a method known as difference-in-differences (DiD), lawmakers can draw upon the experience of existing state laws to enact laws justified with evidence. The Comment demonstrates the value of DiD with a current free exercise controversy involving the Old Order Amish and their objection to Ohio’s flashing light requirement for buggies. Applying DiD to this conflict reveals that Ohio’s buggy light law led to an estimated 23% reduction in buggy-related crashes compared to Michigan and Kentucky—states with less restrictive buggy requirements. Beyond this case study, the Comment also discusses how DiD can help address recent Supreme Court conflicts over tax exemptions for religious organizations, LGBTQ-themed books in schools, and religious charter schools. These examples grapple with the problems and the showcase the possibilities of a data-driven method to address necessity in free exercise.

Constitutional Law Empirical Analysis Freedom of Religion
Print
Essay
85.2
Competing Orders? The Challenge of Religion to Modern Constitutionalism
Ran Hirschl
Professor of Political Science & Law, University of Toronto, and Alexander von Hum-boldt Professor of Comparative Constitutionalism, University of Göttingen.
Ayelet Shachar
Professor of Law, University of Toronto, and Director of the Max Planck Institute for the Study of Religious and Ethnic Diversity.

The rule of law and the rule of God appear to be on a collision course.

Constitutional Law Freedom of Religion
2
Essay
79.1
Religion, Schools, and Judicial Decision Making: An Empirical Perspective
Michael Heise
Professor, Cornell Law School
Gregory C. Sisk
Laghi Distinguished Chair in Law, University of St. Thomas School of Law

We thank Dawn M. Chutkow as well as participants in the Understanding Education in the United States Symposium at the University of Chicago Law School for comments on an earlier draft. Professor Sisk offers thanks to his assistant, Bethany Fletcher, for recording data coding and to law students Eric Beecher and Alicia Long for assistance with opinion coding. A spreadsheet containing our data set, regression run results, coding of each decision, coding of each judge, and code books may be found at http://courseweb.stthomas.edu/gcsisk /religion.study.data/cover.html.

Education Empirical Analysis First Amendment Freedom of Religion Judicial Decision-Making
Online
Article
79.4
What If Religion Is Not Special?
Micah Schwartzman
Professor of Law, University of Virginia School of Law

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.

Constitutional Law First Amendment Freedom of Religion

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