New Paper: "Can First Amendment 'History and Tradition' Protect Both Sides in Polarized America?"

I've posted this new paper on SSRN. Abstract:

In recent years, religious-freedom issues have become caught up in the nation’s cycle of political and social polarization. I have argued, on my own and in concert with others, that the only way forward is to protect key interests of both conflicting sides in our major religious-freedom disputes: both Muslim and evangelical Christians, both LGBTQ people and religious conservatives. In past years, the Supreme Court has taken important steps protecting both sides—for example, protecting same-sex couples and traditionalist religious objectors to same-sex relationships. But more recently it has begun reworking significant parts of its jurisprudence about religion, government, and other issues concerning cultural conflict. While continuing to protect free exercise strongly for both institutions and individuals, it has taken a new direction in Establishment Clause cases, focused predominantly on whether “history and tradition” support a government practice or category of practices. The new approach indicates that various practices once likely to be invalidated are now likely to be upheld.

The danger is that key elements of bipartisan protection will be reversed under the auspices of the “history and tradition” approach. The new decisions have already approved some measures  exposing nonbelievers and members of minority faiths to majoritarian official religious expression and even some kinds of official coercion. Those decisions, however, might have limited effects. This Article discusses those limits and explains why the Court should not go further. It should not extend its approval of official religious expression into the public-school classroom—the issue posed by Louisiana’s recent law requiring the posting of the Ten Commandments in all classrooms. The tradition-based approach to unenumerated constitutional rights would probably would not have generated the same-sex marriage right of Obergefell; but the Court should not overturn that decision. And overall, the Court should apply “history and tradition” under the Religion Clauses with sufficient flexibility and generality to achieve the clauses’ key purposes, which include protecting people from suffering for living according to their deepest commitments and preventing the cycles of fear, resentment, and conflict that such suffering brings on. Some such flexibility in analyzing history and tradition provides the best account of the Court’s doctrine strongly protecting free exercise. Similar flexibility should apply in the doctrine protecting against establishments.