Lee v. Weisman: Paradox Redux

Abstract

For more than two decades, the Supreme Court's Establishment Clause jurisprudence was "at war with" its Free Exercise jurisprudence. In recent years, however, two major decisions--"Employment Division v. Smith" and "Lee v. Weisman"--have effected a significant shift in our religion clause jurisprudence. In this article I will suggest that, considered together, these two decisions have merely replaced one form of incoherence with another. In particular, I will suggest that either decision could be justified alone--and indeed, that either standing alone would be an improvement on the Court's previous religion clause doctrine--but that together they make little sense.