Article by: Nelson Tebbe

41 PEPP. L. REV. 963 (2014)

Warnings can be heard today that the American tradition of religious freedom is newly imperiled and may even be nearing exhaustion. Steven Smith is an eloquent and accomplished herald of that development, and his warnings have been echoed by other distinguished authors. They worry that we are seeing an unprecedented attack on the very idea of constitutional protections for religion. Although conflicts between secularism and religion are nothing new, this critique is thought to be both more fundamental—because it targets not just particular applications of religious freedom but the notion itself—and more likely to succeed. Religious freedom as a constitutional concept is thought to be at risk. In this short Response, I bracket the substance of debates over the health of religious freedom doctrine and whether religion is special. Instead, I ask what is at stake in them. In particular, I am interested in the consequences not only for constitutional litigation, but also for legislation on related issues, and for concrete political controversies that implicate constitutional questions surrounding religious actors. What would change on the ground if one side or the other were to prevail on questions such as whether religion is constitutionally distinctive or whether the doctrine of religious freedom is coherent?

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