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Kent Greenawalt

Print publication date: 2016

Print ISBN-13: 9780199756162

Published to Oxford Scholarship Online: May 2016

DOI: 10.1093/acprof:oso/9780199756162.001.0001

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Five Questions About Religion Judges Are Afraid to Ask*

Five Questions About Religion Judges Are Afraid to Ask*

(p.401) Chapter 20 Five Questions About Religion Judges Are Afraid to Ask*
From the Bottom Up

Kent Greenawalt

Oxford University Press

“Five Questions About Religion Judges Are Afraid to Ask” explores various matters that judges often avoid, partly because their involvement would constitute an inappropriate connection between state and religion. Judges cannot determine whether a claim is accurate, or whether it conforms to the doctrines of a religious organization. They hesitate to inquire deeply into sincerity and to judge the substantiality of a burden. Although they must often treat a claim as “religious” or not, judges hesitate to define religion. The essay defends the position that “religion” is not susceptible to a clear definition, but depends on multiple factors. Many of the subjects in this essay also arise under the Religious Freedom Restoration Act. The recent Hobby Lobby case interpreting that statute reveals how difficult it can be to discern genuine a “substantial burden” and how, with extended exemptions, sincerity can also often become a problem in some settings.

Keywords:   Judicial Avoidance, Values of Free Exercise and Establishment Clauses, Sincerity, Substantial Burden, “Religious” Boundaries, Religious Freedom Restoration Act

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