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Free exercise of religion, Establishment clause, Religious freedom


Constitutional Law | First Amendment | Religion Law


Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics’ prudential way of working on concrete problems actually shares much with the methods of others. Part II then argues that the best defense of religious freedom jurisprudence begins with an approach known as coherentism. In political philosophy, coherentism refers to the way legal actors compare new problems to existing principles and paradigms in order to identify solutions that are justified. The Essay then extracts and emphasizes the social aspects of this basic account. It contends that arguments about the meaning of the Constitution appropriately reflect social and political dynamics. The resulting approach, social coherentism, describes a powerful method for generating interpretations of the First Amendment that are justified, not conclusory. This matters at a moment when some defenders of religious traditionalism are suggesting that principled decisionmaking on questions of religious freedom is impossible, and therefore that such issues should be largely surrendered to political processes.