Document Type

Working Paper

Publication Date

12-23-2015

SSRN Discipline

Legal Scholarship Network; PRN Subject Matter eJournals; Philosophy Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network; Political Science Network

Abstract

The recent rise of religious institutionalism in Supreme Court doctrine presents a puzzle After all the Court has been emphasizing groups at exactly the same moment when social scientists have been showing that Americans are disaffiliating from religious organizations at a rapid rate What explains this apparent tension We argue that multiple factors contribute in complex ways to the rise of group rights of religious freedom But we also tentatively suggest an overarching theme Once it is appreciated that religious disaffiliation is happening chiefly among those on the left of the political spectrum it becomes possible to hypothesize that lawyers' focus on groups and institutions reflects a countervailing impulse among religious traditionalists If that is correct then the rise of group rights of religion is happening alongside not despite religious disaffiliation The two developments are aspects of a general phenomenon of polarization on questions of religious freedom

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