The Federalist Society Debate: Religious Expression After Smith
Posted by: djohnson in 2-Ready for Final EditDavid Johnson
Managing Editor
On Tuesday April 28th, the Federalist Society held a debate on Freedom of Religion and Supreme Court jurisprudence. The two keynote speakers for this event were Valparaiso University School of Law’s Professor Rosalie Levinson and Professor Patrick Garry, of South Dakota University School of Law.//
The specific topics of the afternoon were the Establishment Clause, the Exercise Clause of the United States Constitution, and what the Supreme Court’s decision in Employment Division v. Smith, which is a case concerning a ban on peyote and Native Americans. This case spawned the Religious Freedom Restoration Act. An additional topic covered in the debate was the various approaches Supreme Court justices have utilized in examining what constitutes a violation of the church-state barrier. //
Garry stated that the lack of a consistent and encompassing approach to challenges against the Establishment and Exercise Clauses has led to a “jurisprudence of minutia.” Solitary events like a rabbi saying a prayer prior to a middle school graduation ceremony have led to excessive litigation because there is currently no definitive test on these Clauses in operation.//
Although Levinson interprets the holding of Smith and the Clauses differently, she was in agreement with Garry over the years of ambiguity Supreme Court decisions have caused on the topic. As Levinson said, although we may hold the Supreme Court and its justices in the greatest regard, they’re people too, and the mingling of religion and government leads to a terribly slippery slope of what’s too much and what action is permissible.//
And, as a question at the end of the two presentations pointed out, the deeply personal issues of religion and government will likely continue to divide the Justices on the Court for years to come.
David is a 1L and can be reached at Forum@valpo.edu
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