Religion and the American Constitutional Experiment

Cover
Religion and the American Constitutional Experiment
Copyright
Contents
List of Tables
Preface
Introduction
1 The American Experiment in Historical Context
	The First Millennium
	The Papal Revolution
	The Protestant Reformation
	Religious Establishment versus Religious Freedom in Europe
	Colonization and Experimentation
2 The Theology and Politics of the Religion Clauses
	Puritan Views
	Evangelical Views
	Enlightenment Views
	Civic Republican Views
	Summary and Conclusions
3 The Essential Rights and Liberties of Religion
	Liberty of Conscience
	Free Exercise of Religion
	Religious Pluralism
	Religious Equality
	Separation of Church and State
	Disestablishment of Religion
	Summary and Conclusions
4 Forging the First Amendment Religion Clauses
	Religion and the Continental Congress
	The 1787 Constitutional Convention
	Ratification and Proposed Amendments
	Drafting the First Amendment Religion Clauses
	“Original Intent”: Interpreting the Final Text
	Summary and Conclusions
5 The Free Exercise of Religion: Mapping the Doctrinal Terrain
	Bringing a Free Exercise Case
	Factual Clusters of Free Exercise Cases
	Shifting Standards of Review in Free Exercise Cases
6 First Amendment Religious Exercise, Expression, and Exemption
	Free Exercise and Polygamy (1879–​1890)
	Free Exercise and Conscientious Objection (1918–​1971)
	Freedom and Equality of Religious Expression (1940–​2015)
		No Prohibitions and Prior Restraints
		Criminal Laws
		Time, Place, and Manner Regulations
	Liberty of Conscience and Free Exercise Exemptions (1943–​1989)
	Summary and Conclusions
7 The Free Exercise of Religion: Neutrality, Nondiscrimination, and Statutory Rights
	Neutralizing the Free Exercise Clause (1982–​1990)
	Neutrality and No State Discrimination Against Religion (1993–​)
		Neutrality and Nondiscrimination in State Aid to Religious Education
		Neutrality and Nondiscrimination in the Time of Covid
		State Neutrality in Balancing Religious Liberty and Sexual Liberty
	Free Exercise of Religion as a Statutory Right (1993–​)
		RFRA Cases in the Supreme Court
		RLUIPA Cases in the Supreme Court
	Summary and Conclusions
8 Modern Establishment Law: Mapping the Doctrinal Terrain
	Bringing an Establishment Clause Case
	Mapping the Establishment Clause Cases
		Separationism
		Accommodationism
		Neutrality and the Lemon Test
		Endorsement
		No Coercion
		Equal Treatment/​Equal Access
		History and Tradition
	Summary and Conclusions
9 Religion and Public Education: No Establishment of Religion, But Equal Access for Religion
	Separationist Cases (1948–​2000)
	Equal Access Cases (1981–​)
	Limits on Equal Access?
	Summary and Conclusions
10 Government and Religious Education: From Accommodation to Separation to Equality
	Accommodationist Cases (1908–​1977)
		Fundamental Liberty Cases
	Separationist Cases (1971–​1985)
	Equal Treatment Cases (1983–​2002)
	Statutes, Free Exercise, and Equal Access Rights (2004–​)
	Summary and Conclusions
11 Religion and Public Life
	Sabbath Day Rules
	Legislative Chaplains and Prayers
	Religious Symbols
		Patterns and Principles
	Summary and Conclusions
12 The Freedoms of Religious Organizations
	Religious Polity and Structures
		Religious Structures
		Legal Structures
	Religious Property Disputes
		Standard Legal Principles (1815–​1914)
		Deference (1872–​1976)
		Neutral Principles (1979–​)
	Labor and Employment
	Social Services and Taxation
		Social Services
		Taxation
	Summary and Conclusions
Concluding Reflections
	Signs of Trouble
	Enduring Principles, New Applications
Appendix 1: Drafts of Federal Religion Clauses (1787–​1789)
Appendix 2: United States Supreme Court Decisions Relating to Religious Liberty (1815–​2021)
Index