Religious Liberty in 2020 -- post by Cass Sunstein

Especially in the aftermath of the election, it might make sense to devote some sustained thought to the nature of religious liberty in 2020. We can distinguish among a number of positions. The religious right wants a weak establishment clause and a strong free exercise clause. Many contemporary liberals want a strong establishment clause and a strong free exercise clause. Less well-represented are those Thayerians who want a weak establishment clause and a weak free exercise clause and those rare souls who want a strong establishment clause and a weak free exercise clause. -- We might also distinguish between the formal law of religious liberty and the culture of religious liberty. Eg, Smith might well make sense if we emphasize the institutional limits of the judiciary in doing what Sherbert sought to do; but the Religious Freedom Restoration Act might seem a legitimate democratic effort to restore the Sherbert conception of rights. Right now, our law of religious liberty seems much better than our culture on that count. -- I think that constitutional theorists have not paid nearly enough attention to the coming cultural conflict between (roughly) Rawlsian political liberals, who seek a strong establishment clause, and those who believe one of the following things: ours is a Christian nation; there's a lot of innocuous, ceremonial deism out there, which should certainly be permitted (possibly including school prayer); the government must treat religion on the same terms as nonreligion, meaning, e.g., that vouchers are constitutionally required. -- I'm not sure what the right view is, exactly, but identifying it seems extremely important, more so, maybe, than most constitutional scholars (emphatically including yours truly) have seen to date.

-- Cass Sunstein