The Yale Law Journal


The Religion Clauses Post-Kennedy

04 Dec 2023
Constitutional Law


Establishment as Tradition

Marc O. DeGirolami

Traditionalism holds that enduring practices are the presumptive determinants of constitutional meaning and law. This Essay examines two questions: Why has traditionalism had special salience in interpreting the Establishment Clause? And is traditionalism more disposition or mood than constitutional…


Freedom for Religion

Michael Stokes Paulsen

The First Amendment’s religious-freedom provisions are best understood as protecting “freedom for religion”—religious liberty for the benefit of religion, for generous protection of its free exercise by individuals and groups, and for the autonomy of religious institutions. The Supreme Court’s most …


Replacing Smith

Stephanie H. Barclay

As the Supreme Court has sought to ground more of its constitutional jurisprudence in original understanding, it has signaled an interest in revisiting aspects of Employment Division v. Smith. This Essay assesses potential replacement doctrines and defends a historically grounded version of strict s…