Religion & Law

I am a fan of Richard Schragger's work on the Religion Clauses, espcially his superb piece a few years ago on the role of localism in religious liberty in which he claimed, in part, that decentralized decisions that benefit or burden religious liberty ought to be given greater deference than analogous centralized decisions.

Professor Schragger recently posted The Relative Irrelevance of the Establishment Clause, a very interesting looking piece sounding related notes about the advantages of underenforcement of the disestablishment norm.  From the introduction to the piece:

This Article argues (1) that a pervasive feature of the Court?s Establishment Clause jurisprudence is that the Court?s stated doctrine is underenforced or is irrelevant to a whole range of arguably pertinent conduct; (2) there are some legitimate reasons for this judicial underenforcement or irrelevance; and (3) to the extent the Court is capable of enforcing its stated nonestablishment principles, it can only do so indirectly by managing establishment in the political/legal culture that exists beyond constitutional law.  How the Court does or fails to do (3) is the main subject of this Article.