Structural Free Exercise

In Part I of this article, we analyze the development of case law interpreting the religious freedom language of the First Amendment from the 1940s to the eve of the rights revolution as a casualty of the piecemeal approach to incorporation, compounded by a series of judicial lapses and oversights. Part II deals with the fate of the Religion Clause in the era of the rights revolution, when the free exercise and establishment provisions were deployed in the service of a constitutional agenda to which they were, in themselves, largely peripheral. The current period of doctrinal change is the subject of Part Ill, where the implications of the emerging deferential approach for religious freedom are ~explored. In Part IV we argue that a holistic, structural approach to the text is necessary if the Court is to develop a workable, coherent, church-state jurisprudence for our pluralistic, liberal, democratic society. If rigid separationism is not to be succeeded by an equally mechanical form of deference, the Court must now grapple seriously with the formidable interpretive problems that were overlooked or given short shrift in the past. The task is an urgent one, for it concerns nothing less than the cultural foundations of our experiment in ordered liberty.