Copyright (c) 2009 All rights reserved. http://works.bepress.com/nelson_tebbe Recent documents in Nelson Tebbe en-us Sun, 31 May 2009 09:42:40 PDT 3600 http://works.bepress.com/nelson_tebbe/10 http://works.bepress.com/nelson_tebbe/10 Fri, 20 Feb 2009 09:15:52 PST Nelson Tebbe http://works.bepress.com/nelson_tebbe/9 http://works.bepress.com/nelson_tebbe/9 Fri, 20 Feb 2009 08:38:12 PST Nelson Tebbe http://works.bepress.com/nelson_tebbe/8 http://works.bepress.com/nelson_tebbe/8 Wed, 07 May 2008 06:48:24 PDT Nelson Tebbe Chronology http://works.bepress.com/nelson_tebbe/7 http://works.bepress.com/nelson_tebbe/7 Mon, 03 Dec 2007 10:38:20 PST Nelson Tebbe Chronology http://works.bepress.com/nelson_tebbe/6 http://works.bepress.com/nelson_tebbe/6 Wed, 17 Oct 2007 13:11:37 PDT This Article identifies a difficulty with the neutrality paradigm that currently shapes thinking about the Free Exercise Clause both on the Supreme Court and among its leading critics. It proposes a liberty component, shows how it would generate more attractive results than neutrality alone, and defends the liberty approach against likely objections. A controversial neutrality rule currently governs cases brought under the Free Exercise Clause. Under that rule, only laws and policies that have the purpose of discriminating against religion draw heightened scrutiny. All others are presumptively constitutional, regardless of how severely they burden religious practices. Critics have attacked the Court's rule with compelling normative arguments. Curiously, though, the leading academic critics have not directed those arguments against neutrality itself. Rather, they have argued that the Court has adopted the wrong sort of neutrality principle. Instead of purposive neutrality, they call for substantive neutrality. That approach would closely scrutinize not only laws or policies that discriminate purposefully, but also those that have the incidental effect of disadvantaging religion. This Article points out a difficulty with the critics' proposal that it calls the problem of symmetry. In order to qualify as neutral, substantive neutrality must apply in the same way to laws that benefit religion as to laws that burden it. Neutralists could not apply strict substantive neutrality to laws that burden religion, but only the more permissive purposive neutrality to laws that benefit religion. That regime would not be neutral. It would systematically advantage religion in violation of evenhandedness. Some of the leading academic critics recognize that substantive neutrality must resist laws that favor religion as well as those that disfavor it. But many of their practical proposals seem to violate the symmetry constraint. Accommodations of religion, in particular, often have the effect of advantaging religious practices over comparable secular activities. For instance, the critics must strongly support the Religious Land Use and Institutionalized Persons Act, which applies strict scrutiny (as a statutory matter) to prison regulations that incidentally but substantially burden religious observance among inmates. The Supreme Court recently upheld that law even though it has the effect of advantaging sacred practices over analogous secular ones. The critics surely must applaud that result. Yet advantaging religious over secular practices is difficult to square with substantive neutrality. Liberty, in contrast to neutrality, is asymmetrical. It protects religious freedom regardless of whether doing so incidentally advantages observance over comparable secular practices. This Article argues that a liberty component is necessary to vindicate the critics' own normative intuitions concerning the proper role of religious freedom in American democracy Nelson Tebbe Chronology http://works.bepress.com/nelson_tebbe/5 http://works.bepress.com/nelson_tebbe/5 Wed, 17 Oct 2007 13:08:54 PDT Witchcraft beliefs and practices are widespread in contemporary Africa. In this short essay, which is forthcoming in the University of Chicago's Journal of Religion, I review an important new ethnography concerning occult beliefs in Soweto, a large urban township on the outskirts of Johannesburg. Although witch hunts themselves are relatively rare, fear of the occult pervades everyday life. Citizens' complaints of injustice at the hands of witches have implications for democratic governance. How ought a constitutional democracy respond to their demands for protection? After describing two ideal-typical responses, I argue that the government has recently moved in the direction of an approach that calls for regulating witchcraft itself - a policy that addresses certain problems but also carries significant danger for the new democracy. Nelson Tebbe Chronology http://works.bepress.com/nelson_tebbe/3 http://works.bepress.com/nelson_tebbe/3 Wed, 17 Oct 2007 13:05:02 PDT Nelson Tebbe Chronology http://works.bepress.com/nelson_tebbe/1 http://works.bepress.com/nelson_tebbe/1 Wed, 17 Oct 2007 12:55:19 PDT This Article considers a pressing issue in the constitutional law of religious freedom: whether government may single out religious actors and entities for exclusion from its support programs. Although the problem of selective exclusion is generating intense interest in lower courts and in informal discussions among scholars, so far the academic literature has not kept pace. Excluding Religion argues that generally government ought to be able to target religious actors and entities for denial of support, although the Article carefully circumscribes that power by delineating a set of principled limits. It concludes by developing a theoretical framework for considering the broader question of whether and when a liberal democracy may influence the decisions of private citizens concerning matters of conscience. Nelson Tebbe Chronology