Paul Horwitz (University of Alabama School of Law) has posted The Philosopher’s Brief (Constitutional Commentary, Forthcoming) on SSRN. Here is the abstract:
This is a short commentary on Kent Greenawalt’s recent major contribution to law and religion, the two-volume work Religion and the Constitution, stemming from a roundtable discussion of his work at Notre Dame Law School.
This commentary makes two arguments about Religion and the Constitution. First, it questions whether the "bottom-up" approach that Greenawalt advocates for law and religion questions can succeed absent an explicit theory of the Religion Clauses. Greenawalt proceeds in the careful fashion of a legal philosopher, setting out a range of values that underlie the Religion Clauses and offering a sensitive case-by-case examination of various Religion Clause issues. It is a philosopher’s brief for the Religion Clauses, as it were. But it lacks a clear philosophy: it does not ultimately tell us how to rank and reconcile competing Religion Clauses values. Such a philosophy may, in fact, ultimately be unattainable. But without it, we are left without clear standards for evaluating the "reasonableness" of Greenawalt’s conclusions in particular cases.
Second, it argues that Greenawalt’s work may be insufficiently attentive to the institutional nature of religious institutions and their role in the social and constitutional constellation. An alternative "bottom-up" method, rather than attempting to reconcile abstract Religion Clause values, might instead proceed by considering the role, practices, and capacity for self-regulation of various religious entities at an institutional level, and considering the legal implications of such an approach.