Academic

Wilson on Judgemental Neutrality

By Lawrence Solum

Lincoln Davis Wilson (Skadden, Arps) has posted Judgmental Neutrality: When the Supreme Court Inevitably Implies that Your Religion is Just Plain Wrong (Seton Hall Law Review, Vol. 38, No. 2, 2008) on SSRN. Here is the abstract:

This Comment posits that in certain Free Exercise cases the Supreme Court necessarily implies that a religious adherent's beliefs are false, despite that the Court has expressly stated that it makes no truth judgments about religions. Namely, when the Court denies a Free Exercise claim premised on a religious belief purporting to be universally, objectively true, the Court necessarily implies, through simple logical forms, that the underlying religious doctrine is false. The Comment suggests this implication is inevitable, and that because it is inconsistent with the Court's principle of neutrality toward religion, the neutrality principle should be clarified, modified, or abandoned.

The Comment first outlines the unity of the Court's neutrality principle with its policy against judging religious truth, and then discusses the fundamental axioms underlying the argument. The Comment then sets forth the formal argument, illustrating it with Free Exercise cases such as Reynolds v. United States and Employment Division v. Smith. The Comment then clarifies the scope of the thesis, noting that this implication does not result in all circumstances, and responds to foreseeable objections. Finally, the Comment addresses some of the implications of its thesis, suggesting that the neutrality principle be clarified, modified, or abandoned.

A student note, but very interesting.

Full post as published by Legal Theory Blog on April 30, 2008 (boomark / email).