Thursday, April 12, 2012

Ashe on Women, Free Exercise, and Establishment in American Law

Women's Wrongs, Religions' Rights: Women, Free Exercise, and Establishment in American Law has been posted by Marie Ashe, Suffolk University Law School.  It appears in 21 Temple Political & Civil Rights Law Review 163 (Fall 2011).  Here's the abstract:
This article provides an historical examination of American Constitutional law concerning religion as it has evolved through three periods: the Mormon period of the late nineteenth century; the religious pluralism period of post-WW2 decades; and the multiculturalism period that began around 1990 and that remains underway. It examines Supreme Court interpretations of First Amendment provisions pertaining to religion, and it contextualizes those interpretations to explore their implications for women’s liberty and equality at each of the three periods. Its argument is that Constitutional doctrine relating to religion – through its multiple doctrinal reversals – has consistently entailed and depended upon negative constructions of women, sacrificing women’s liberty and equality interests in order to prefer and to cultivate the liberty and equality interests of churches.

1 comment:

Shag from Brookline said...

My interest in reading this article was piqued by the reference to the Mormon period of the late 19th century which I thought might be relevant to the 2012 presidential campaign with Mormon Mitt Romney as the putative Republican candidate. The author is critical of the Supreme Court's decision in Reynolds "outlawing" polygamy in interpreting the First Amendment's "free exercise" clause as ignoring or limiting women's rights. The author uses this Mormon period as the foundation of her theme, going through subsequent periods, to demonstrate the impact of the Court's subsequent decisions on women's rights that utilize the First Amendment's religion and speech clauses in manners limiting women's rights.

While I agree with Prof. Ashe's basic theme that women's liberty and equality interests are sacrificed, I wonder what the interpretation of the religion clauses would look like if in Reynolds the Court had decided that the polygamy prohibition infringed upon the free exercise clause.

Perhaps if women had had equal rights at the time, a woman might have been dominant in polygamy resulting in multiple husbands.

In her Conclusion, Prof. Ashe references the then pending appeal before the Court on Hosanna-Tabor Evangelical. The Court's decision earlier this year serves as another limitation on women's liberty and equality interests by means of the "ministerial exception" relied upon the Court in the termination of a female employee.