American Public Religion in Frankfurter and Scalia's Opinions

American Public Religion in Frankfurter and Scalia's Opinions

American Public Religion in Frankfurter and Scalia's Opinions

American Public Religion in Frankfurter and Scalia's Opinions

Synopsis

Meadors demonstrates weaknesses in the originalist methodology for interpreting the religion clauses of the First Amendment. He concludes that even though courts have an important role to play in protecting religious liberty via the First Amendment this protection needs supplementation by robust advocacy among citizens and mediating institutions in the democratic process. His thesis is that Felix Frankfurter and Antonin Scalia found different forms of American public religion constitutional in their religion clause jurisprudences. Both applied originalist methodology in their religion clause opinions, but came to different conclusions. More specifically, Frankfurter focused primarily on the views of Thomas Jefferson and James Madison whereas Antonin Scalia has looked more broadly to the views and practices of John Adams, George Washington, and John Marshall in addition to Jefferson and Madison.

Excerpt

The First Amendment religion clause jurisprudences of two United States Supreme Court justices—Felix Frankfurter (1939–1962) and Antonin Scalia (1986-present)—find different forms of American public religion constitutional. Frankfurter’s jurisprudence applied the Free Exercise Clause weakly, but the Establishment Clause strictly as exemplified in the cases Minersville School District v. Gobitis, 310 U.S. 586 (1940) and McCollum v. Board of Education, 333 U.S. 203 (1948). Scalia, on the other hand, has interpreted both clauses with deference to government action in most cases, and this is evident in Employment Division v. Smith, 494 U.S. 872 (1990) and McCreary County v. ACLU, 545 U.S. 844 (2005).

Steven B. Epstein’s article, “Rethinking the Constitutionality of Ceremonial Deism,” 96 Columbia L. Rev. 2083, 2094–2098 (1996) provides a lengthy definition of ceremonial deism more fully delineated below, and uses the terms American public religion and American civil religion without distinction. He does, however, distinguish between different types of American public religion, especially American public religion that includes a belief in God and American public religion that does not. Ibid., 2096–2097.

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.