Monday, August 29, 2005
My new colleague, Nelson Tebbe, has recently published a piece in the Hastings Law Journal that will be of interest to MOJ readers. The article, "Free Exercise and the Problem of Symmetry" (56 Hastings L.J. 699 (2005), parts company with the critics of the Supreme Court's decision in Employment Division v. Smith whose claim is that that Court should have adopted a principle of substantive neutrality rather than one of formal neutrality. Because of tensions with what he terms the problem of symmetry, Tebbe argues that "neutrality of any stripe will insufficiently protect free exercise." He thus proposes the addition of a liberty principle for evaluating free exericse claims, finding a liberty principle both easier to defend and one that "better captures the affirmative value of free exercise" and avoids the symmetry problem. The article elaborates on his "substantive liberty" principle and defends it against anticipated objections, including the claim that the principle violates the Establishment Clause.