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Published online by Cambridge University Press: 24 April 2015
1. See, for example, Matsuda, Mari J., Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L J 1329, 1361 (1991)CrossRefGoogle Scholar (“As feminist scholars have pointed out, everyone has a gender, but the hidden norm in law is male. As critical race theorists have pointed out, everyone has a race, but the hidden norm in law is white”). I have suggested elsewhere that “[s]imilarly, everyone has a religious viewpoint, but the hidden norm in law has been based upon those viewpoints familiar to American religious sensibilities.” Levine, Samuel J., Toward a Religious Minority Voice: A Look at Free Exercise Law Through a Religious Minority Perspective, 5 Wm & Mary Bill Rts J 153, 160–61 (1996)Google Scholar.
2. See, for example, Fineman, Martha Albertson, Feminist Theory in Law: The Difference It Makes, 2 Colum J Gender & L 1, 11 (1992)Google Scholar (“[C]ertain groups historically have been unrepresented in law and their exclusion has led to biases-an incompleteness or deficit in contemporary legal analysis and institutions … historically excluded groups have different, perhaps unique, views and experiences that are relevant to the issues and circumstances regulated and controlled by law”). See also Minow, Martha, Making all the Difference: Inclusion, Exclusion, and American Law 51 (Cornell U Press, 1990)Google Scholar (“Unstated norms may express the experience of a majority or may express the perspective of those who have had greater access to the power used in naming and assessing others”).
3. See, for example, Fineman at 10 (cited in note 2) at 10 (challenging “the traditional notion that law is a neutral, objective, rational set of rules, unaffected in content and form by the passions and perspectives of those who possess and wield the power inherent in law and legal institutions”).
4. See id at 11 (“Law is not only something ‘out there’-an independent body of principles—but a product of society, acted upon and responsive to political and cultural forces. For this reasons it is as essential to understand societal and cultural forces as it is to decipher doctrine in order to understand ‘the law’”).
5. See, for example, Thomas, Kendall, The Eclipse of Reason: A Rhetorical Reading of Bowers v Hardwick, 79 Va L Rev 1805, 1811 (1993)CrossRefGoogle Scholar (rejecting the “orthodox view of the relation between legal discourse and legal doctrine,” which “viewed the rhetoric of the Supreme Court analysis and argument mainly as a tool for communicating rules of constitutional law, which are taken to be separate and distinct from that rhetoric itself,” and endorsing “recent writing on the theory and practice of legal interpretation [that] undermines the idea that the content of legal doctrine is separable (even in principle) from its discursive form”).
Compare Levine at 162 n 36 (cited in note 1) (a careful look at the various [Supreme Court] opinions often demonstrates the majority's inability or unwillingness to acknowledge realistically the needs of religious minorities … the Court's very failure to give adequate expression to religious minority perspectives in written opinions has the effect of improperly limiting the significance accorded these perspectives in legal thought).
6. See, for example, Mark Kelman, A Guide to Critical Legal Studies (Harv U Press, 1987)Google Scholar.
7. Gedicks begins his Introduction with the observation that “[documenting the inconsistency of the Supreme Court's religion clause decisions is a virtual cliche in constitutional scholarship.” Gedicks, Frederick Mark, The Rhetoric of Church and State: A Critical Analysis of Religion Clause Jurisprudence 1 (Duke U Press, 1995) [hereinafter Gedicks]Google Scholar.
According to Professor Tom Berg, “[t]hat the Supreme Court has made a mess of this area is agreed to by most everyone including many of the justices themselves,” and “[a]s a result, in recent years Religion Clause theory has sprouted up all over the place. Several justices and scores of commentators have proposed ‘rethinking’ the Religion Clauses all the way down to their historical and theoretical roots.” Berg, Thomas C., Religion Clause Anti-Theories, 72 Notre Dame L Rev 693, 693 (1997)Google Scholar. See, for example, Adams, Arlin M. & Emmerich, Charles J., A Heritage of Religious Liberty, 137 U Pa L Rev 1559 (1989)CrossRefGoogle Scholar; Blackman, Rodney J., Showing the Fly the Way Out of the Bottle: Making Sense of the First Amendment Religion Clauses, 42 U Kan L Rev 285 (1994)Google Scholar; Eisgruber, Christopher L., Madison's Wager: Religious Liberty in the Constitutional Order, 89 Nw L Rev 347 (1995)Google Scholar; Garvey, John H., Is There a Principle of Religious Liberty?, 94 Mich L Rev 1379 (1996) (book review)CrossRefGoogle Scholar; Garvey, John H., The Architecture of the Establishment Clause, 43 Wayne L Rev 1451 (1997)Google Scholar; Greenawalt, Kent, Quo Vadis: The Status and Prospects of “Tests” Under the Religion Clauses, 1995 Sup Ct Rev 323 (1996)Google Scholar; Greene, Abner S., The Political Balance of the Religion Clauses, 102 Yale L J 1611 (1993)CrossRefGoogle Scholar; Karst, Kenneth L., The First Amendment, the Politics of Religion and the Symbols of Government, 27 Harv CR-CL L Rev 503 (1992)Google Scholar; Laycock, Douglas, Summary and Synthesis: The Crisis in Religious Liberty, 60 Geo Wash L Rev 841 (1992)Google Scholar; Laycock, Douglas, The Underlying Unity of Separation and Neutrality, 46 Emory L J 43 (1997)Google Scholar; Levine, Samuel J., Rethinking the Supreme Court's Hands-Off Approach to Questions of Religious Practice and Belief 25 Ford Urb L J 85 (1997)Google Scholar; Lupu, Ira C., Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion, 140 U Pa L Rev 555 (1991)CrossRefGoogle Scholar; McConnell, Michael W., Accommodation of Religion: An Update and a Response to the Critics, 60 Geo Wash L Rev 685 (1992)Google Scholar; McConnell, Michael W., Freedom from Persecution or Protection of the Rights of Conscience? A Critique of Justice Scalia's Historical Arguments in City of Boerne v Flores, 39 Wm & Mary L Rev 819 (1998)Google Scholar; McConnell, Michael W., Religious Freedom at a Crossroads, 59 U Chi L Rev 115 (1992)CrossRefGoogle Scholar; McConnell, Michael W., The Origins and Original Understandings of Free Exercise of Religion, 103 Harv L Rev 1409 (1990)CrossRefGoogle Scholar; Paulsen, Michael Stokes, Lemon is Dead, 43 Case W Res L Rev 795 (1993)Google Scholar; Smith, Steven D., Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (Oxford U Press, 1995)Google Scholar.
8. Gedicks at 9 (cited in note 7.
9. Id.
10. Id at 10.
11. Id.
12. Id at 11.
13. Id.
14. Id at 12.
15. Id.
16. Id.
17. Compare Karst (cited in note 7) at 529. ([T]he main source of doctrinal incoherence is the First Amendment itself, which seems to coommand a neutrality that lies beyond anyone's power to achieve. No bright-line rule will do all the work that needs to be done in protecting both the value of religious freedom and the value of inclusion).
18. Gedicks at 57 (cited in note 7). As Professor Cass Sunstein has explained, in a different context, According to the Supreme Court of the early twentieth century, the government must be “neutral” in general, and between employers and employees in particular. Neutrality was defined by reference to existing distributions, or to what people currently had. Government departures from existing distribution signaled partisanship; government respect for those distributions signaled neutrality. A violation of the neutrality requirement, thus understood, would count as a violation of the Constitution. Sunstein, Cass R., Democracy and the Problem of Free Speech at 29 (Free Press, 1993)Google Scholar. See also Minow (cited in note 2) at 42. (Neutrality as a solution to the dilemma of difference is the elusive goal that itself may exacerbate the dilemma, especially when the government is the decision-maker. Governmental neutrality may freeze in place the past consequences of difference, yet any departure from neutrality in governmental standards uses governmental power to make those differences matter and thus reinforces them. If the government delegates discretion to employers, legislators, and judges, it disengages itself from directly endorsing the use of differences in decisions but still allows those other decision-makers to give significance to differences); Thiemann, Ronald F., Religion in Public Life: A Dilemma for Democracy 42–94 (Georgetown U Press, 1996)Google Scholar (describing the “myth of neutrality” in religion clause issues).
19. See Gedicks at 57, 158 n 73 (cited in note 7) (citing Galanter, Marc, Religious Freedom in the United States: A Turning Point, 1966 Wis L Rev 216, 289Google Scholar; Johnson, Phillip E., Concepts and Compromise in First Amendment Religious Doctrine, 72 Cal L Rev 817, 828 (1984)CrossRefGoogle Scholar; Laycock, Douglas, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DePaul L Rev 993, 1005 (1990)Google Scholar; Paulsen, Michael A., Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L Rev 311, 355 (1986)Google Scholar).
20. Id at 57.
21. See note 1.
22. Gedicks at 26 (cited in note 7).
23. Id at 26-27.
24. Id at 27.
25. Id.
26. Id. Compare Kelman at 29 (cited in note 6) (stating that critical legal theory identifies “a set of paired rhetorical arguments that both resolve cases in opposite, incompatible ways and correspond to distinct visions of human nature and fulfillment”).
27. Gedicks at 42-43 (cited in note 7).
28. Id at 43.
29. Id. Thus, Gedicks' methods echo those of “outsider jurisprudence,” which “is hostile toward false pretensions of universality and neutrality.” See Shiffrin, Steven H., Racist Speech, Outsider Jurisprudence, and the Meaning of America, 80 Cornell L Rev 43, 44–45 (1994)Google Scholar. See also Matsuda, Mari J., Public Response to Racist Speech: Considering the Victim's Story, 87 Mich L Rev 2320, 2323–26 (1989)CrossRefGoogle Scholar.
30. Gedicks at 57 (cited in note 7).
31. Id at 58.
32. Id at 59.
33. Id at 59 and 60.
34. Id at 61.
35. Id at 63 (citing McGowan v Maryland, 366 US 420 (1961)).
36. Id (citing Marsh v Chambers, 463 US 783 (1983)).
37. Id (citing County of Allegheny v ACLU, 492 US 573 (1989); Lynch v Donnelly, 465 US 668(1984)).
38. Id (citingBowen v Kendrick, 487 US 589 (1988); HuntvMcNair, 413 US 734 (1973)).
39. Id (citing Walz v Tax Comm'n, 397 US 664 (1970)).
40. Id.
41. Id.
42. Id at 77.
43. Id at 79.
44. Id at 80. Compare Cobin, David M., Creches, Christmas Trees and Menorahs: Weeds Growing in Roger Williams' Garden, 1990 Wis L Rev 1597, 1597 (stating that:Google Scholar
[t]he Court concluded that government display is permissible, so long as the religious symbols are “secularized” to avoid an endorsement of a particular religion or religion generally. While clearly intended to promote the Court's vision of the separation of church and state as prescribed by the First Amendment, the decisions are off the mark. Rather than discouraging governmental involvement in religion, the decisions merely encourage governments to display religious symbols in a manner that dilute them of their religious significance. While the Court views such state involvement as an attempt to enhance secular holiday celebration, the actual result is a weakening of religion).
45. Gedicks at 84 (cited in note 7).
46. Id at 91.
47. Id at 83.
48. Id at 96 and 97.
49. Id at 97.
50. See Levine at 184 (cited in note 1) (noting the Court's failure to appreciate the religious burden placed on the Orthodox Jewish businessman whom the State proscribes from working on Sunday, the Court's ignoring of the impact on Native American religious worship due to government destruction of sacred Indian land and its prohibition on peyote use, and the Court's approval of a regulation that prevented Muslim inmates from attending Jumu'ah[,] and that “in considering the wearing of yarmulkes by servicemen the Court ignored … the Orthodox Jewish perspective”).
51. Gedicks at 116 (cited in note 7). See Levine at 184 (cited in note 1) (observing that “the Court occasionally has recognized a religious minority perspective” but that “it remains to be seen, however, whether the Court will continue to utilize and expand the type of religious minority perspective jurisprudence that is vital to ensuring protection of the free exercise rights of all religious minorities”).
52. Id at 116.
53. 494 US 872(1990).
54. Gedicks at 99 (cited in note 7).
55. Id at 110.
56. Id at 115. Compare Sunstein (cited in note 18); Minow at 43 (cited in note 2) (To be truly neutral, the government must walk a perhaps nonexisting path between promoting or endorsing religion and failing to make room for religious exercise. Accommodation of religious practices may look nonneutral, but failure to accommodate may also seem nonneutral by burdening the religious minority whose needs were not built into the structure of mainstream religions).
57. Gedicks at 115 (cited in note 7).
58. Id.
59. Id at 7.
60. Id at 27 (citing Neuhaus, Richard John, The Naked Public Square: Religion and Democracy in America (2d ed 1986)Google Scholar; Carter, Stephen L., The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (Basic Books, 1993)Google Scholar). See also id at 140-41 nn 15-20.
61. Id at 27 and 28 (citing Tushet, Mark, Religion in Politics (Book Review), 89 Colum L Rev 1131, 1134 (1989)Google Scholar (Reviewing Greenawalt, Kent, Religious Convictions and Public Choice (Oxford U Press, 1988)Google Scholar; Blumoff, Theodore Y., Disclaim for The Lessons of History: Comments on Love and Power, 20 Cap U L Rev 159, 186–87 (1991)Google Scholar; Sullivan, Kathleen, Religion and Liberal Democracy, 59 U Chi L Rev 195, 195–96 (1992)CrossRefGoogle Scholar). See also id at 141-42 nn 22-27.
62. Id at 28.
63. Id at 119.
64. Id at 120.
65. 494 US 872 (1990).
66. Gedicks at 38 (cited in note 7).
67. See Petition for Rehearing, Employment Division v Smith. When the Court denied a request for a rehearing, see Employment Division v Smith, 494 US 913 (1990), these groups successfully lobbied for the passing of the Religious Freedom Restoration Act, which has since been declared unconstitutional. See City of Boerne v Flores, 521 US 507 (1997).
68. See Petition for Rehearing (cited in note 67).
69. Gedicks at 38 (cited in note 7).
70. Id at 40.
71. See Edwards v Aguillard, 482 US 578, 590 (1986) (quoting Epperson v Arkansas, 393 US 97, 109(1968)).
72. Id at 596.
73. Gedicks at 34 (cited in note 7).
74. Id.
75. Id.
76. Id at 33.
77. Id.
78. Id at 32.
79. Id at 72.
80. Id at 164 n 60.
81. Id at 37.
82. Greenawalt, Kent, Private Consciences and Public Reasons 102 (Oxford U Press, 1995)CrossRefGoogle Scholar. [hereinafter, Greenawalt, Private Consciences]. Elsewhere, Greenawalt responded more directly to Gedicks' arguments. See Kent Greenawalt, The Lawyer's Bookshelf, NY L J 2, (reviewing Frederick Gedicks, Mark, The Rhetoric of Church and State: A Critical Analysis of Religion Clause Jurisprudence (Duke U Press, 1995)Google Scholar).
83. Greenawalt, , Private Consciences 102 (cited in note 82)Google Scholar.
84. Id (emphasis in the original).
85. Id (emphasis in the original).
86. Id at 102.
87. Id at 103.
88. Id (emphasis in the original).
89. Gedicks at 31 (cited in note 7).
90. Id.
91. Greenawalt, , Private Consciences 146 (cited in note 82)Google Scholar. See also Sherry, Suzanna, Enlightening the Religion Clauses, 7 J Contemp Legal Issues 473 (1996)Google Scholar.
92. Greenawalt, , Private Consciences 147 (cited in note 82)Google Scholar.
93. Id at 102.
94. Id at 146.
95. Id at 103. Gutmann, Compare Amy, Democratic Education 102–03 (Princeton U Press, 1987)Google Scholar.
96. Gedicks at 35 (cited in note 7).
97. Id.
98. Gould, Stephen Jay, Let's Leave Darwin Out of It, NY Times at A21 (05 29, 1998)Google Scholar.
99. Id.
100. Feit, Carl, Darwin and Drash: The Interplay of Torah and Biology, 2 Torah U-Madda J 25, 30 (1990)Google Scholar. See also Feit, Carl, Book Review, Jewish Action, Spring at 87 (1998)Google Scholar (reviewing Lee Spetner, M., Not by Chance! The Fall of Neo-Darwinian Theory (1997)Google Scholar); Spetner, Lee M., Feit, Carl, Reviewing the Review, Jewish Action at 125 (Summer 1998)Google Scholar.
101. Gedicks at 37 (cited in note 7).
102. Greenawalt, , Private Consciences at 146–7 (cited in note 82)Google Scholar.
103. Gedicks at 71 (cited in note 7).
104. Id at 123.
105. Id.