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The Supreme Court on religious freedom

The Supreme Court term ended in late June with an avalanche of headline-grabbing decisions. The justices announced important, even landmark, rulings in cases involving police interrogation tactics, criminal-sentencing procedures, Internet pornography, public access to the decision-making processes of high-level executive branch officials, and-of course-the rights of suspected enemy combatants detained in the course of the current wars.

Blockbuster church-state rulings, though, were surprisingly and unusually absent from the term’s dramatic conclusion. Instead, this year’s much-anticipated religion clause cases fizzled, revealing an uncharacteristic determination to avoid attention and sweeping, controversial conclusions. In Elk Grove v. Newdow, the hot-button Pledge of Allegiance case, a bare majority employed the technical (but important) doctrine of “standing” to escape the delicate, politically charged task of confronting squarely an atheist’s objections to the words “under God.” Several months before, in Locke v. Davey, Chief Justice William Rehnquist had crafted a narrow, similarly cautious opinion reaffirming that publicly funded scholarship programs may include religious schools, but rejecting the far-reaching argument that, under the First Amendment’s Free Exercise clause, they must. The Court declined even to review potentially explosive disputes involving a Ten Commandments monument in Alabama’s...

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About the Author

Richard W. Garnett is professor of law and associate dean of the University of Notre Dame Law School.