Document Type

Working Paper

Publication Date

4-24-2014

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; AARN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network; Anthropology & Archaeology Research Network

Abstract

This is a reply to Steven D Smiths Brandeis Lecture The Last Chapter That lecture is substantially drawn from the concluding pages of his fine recent book The Rise and Decline of American Religious Freedom In the lecture and the book Smith explores what he calls some vitiating paradoxes of some of the key concepts that undergird the conventional account of American religious freedom and argues that those paradoxes may render religious freedom especially vulnerable in an age of increasing liberal egalitarianism He also offers a competing account of religious freedom one that involves both a soft constitutionalism approach to the Establishment Clause and a revival of some form of freedom of the church My reply is basically an internal account supportive in some respects and critical in others One of the main contributions that Smith has made to law and religion scholarship over the years is his skillful deployment of critical tools to reveal flaws in the underpinnings of Religion Clause law and theory He is I suggest the charter member of the law and religion branch of a rather small but valuable school Conservative Critical Legal Studies In this reply I take his critical views on board and wonder where if anywhere the potentially vitiating paradoxes that he identifies in the conventional account of religious freedom end I also apply Smiths critical framework to the competing account of American religious freedom that he offers In particular I question his recommendation of some form of soft constitutionalism limited essentially to the Establishment Clause explore the difficulties involved in what I suggest is a growing reconciliation including among conservatives to the Supreme Courts decision in Employment Division v Smith and ask whether we might not view arguments for freedom of the church as a kind of salvaging device for those who favor a soft or jurisdictional reading of the Establishment Clause and who have come around on Employment Division v Smith while still seeking to preserve some measure of church autonomy

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