Audra Savage (Wake Forest University – School of Law) has posted The Whitewashing of Religious Liberty on SSRN. Here is the abstract:
The Supreme Court’s history-and-tradition methodology systematically erases the racial dimensions of religious liberty cases, most recently demonstrated in the Landor v. Louisiana Department of Corrections case. Race and religion in America are co-constitutive—each having shaped the legal and social meaning of the other since the colonial enslavement of African peoples. The Court’s treatment of them as doctrinally separate categories produces Religion Clause jurisprudence that appears facially neutral yet it structurally privileges the religious practices of the dominant white Christian tradition, while marginalizing the religious expressions of racial-religious minorities.
This Article presents the racial erasure problem through five doctrinal case studies: the Establishment Clause (Lemon v. Kurtzman); the definition of religion (Africa v. Commonwealth of Pennsylvania); the Free Exercise Clause (Church of the Lukumi Babalu Aye v. City of Hialeah); conscientious objector doctrine (Clay v. United States (Muhammad Ali)); and RLUIPA (Landor). The Article will discuss implications of the historical and modern erasure by offering a differential analysis of the religious liberty claims by a high school football coach (i.e., Kennedy v. Bremerton) and an incarcerated Rastafari with dreadlocks (i.e., Landor). It will conclude with a call for an alternative history-and-tradition approach that is anchored in the Second Founding of Reconstruction.
Highly Recommended!
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