This article argues that modern Supreme Court decisions relating to the Establishment Clause and the Free Exercise Clause have caused both clauses to lose their constitutional force. Although the Court has long recognized a "play in the joints" between the clauses, it had previously resolved this problem exclusively in favor of the Establishment Clause through its well-established doctrine of permissive accommodation. However, the Court's recent decision in Locke v. Davey suggests that the Court is now willing to allow the overlap between the two clauses to pull in the opposite direction as well. This article explains that the Court's decision in Locke marks the emergence of a new doctrine of permissive discrimination that mirrors permissive accommodation. Finally, this article suggests that a system that incorporates both of these complementary doctrines is incapable of protecting the liberties behind either religion clause. Thus, the preservation of religious liberty depends on the Supreme Court's ability to reinforce the distinct principles underlying each clause.
Permissive Discrimination and the Decline of Religion Clause Jurisprudence: The Wearing Out of the Joints,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol77/iss1/6