Dane on Thoughts on the Architecture of Freedom of Religion and Freedom of Speech @perrydane

Perry Dane, Rutgers Law School, Thoughts on the Architecture of Freedom of Religion and Freedom of Speech, in the Notre Dame Law Review Reflection. Here is the abstract.

One goal of this paper is to try to give a holistic account of the structure of freedom of religion and freedom of speech, and their relation to each other. The paper describes a set of important but delicate analytic assumptions and distinctions that have traditionally organized these doctrines. It also tries to explain how those assumptions and distinctions have been coming under increasing pressure, especially dur to our current state of political polarization. The paper then applies those ideas, through the lens of Justice Jackson’s important anthropological insights in West Virginia State Board of Education v. Barnette, to gain a better understanding of the difficulties inherent in cases such as 303 Creative LLC v. Elenis, in which the Supreme Court upheld the right of a website designer to refuse to design a wedding website for a same-sex couple.

Download the essay from SSRN at the link.