ARTICLE: From Yoder to Yoda: Models of Traditional, Modern, and Postmodern Religion in U.S. Constitutional Law Skip over navigation
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Copyright (c) 1999 Arizona Board of Regents
Arizona Law Review

ARTICLE: From Yoder to Yoda: Models of Traditional, Modern, and Postmodern Religion in U.S. Constitutional Law

Spring, 1999

41 Ariz. L. Rev. 49

Author

Rebecca Redwood French *

Excerpt



I. Introduction

The Supreme Court and its commentators have been struggling for over a century to find an adequate definition or characterization of the term "religion" in the First Amendment. 1 It has turned out to be a particularly tricky endeavor, one that has stumped both the Court and its commentators. By the 1990s, a significant section of the academy has given up on the endeavor entirely, others have declared that looking for a single definition that gives the essential characteristics of religion is not useful, and a third group has turned to a wealth of interdisciplinary sources. The appearance of deep incoherence in the religion-related decisions by the Court in the past decade is often cited as the reason for the continuing move to definition in the legal academy. 2 In 1993, Congress took the unusual step of setting out some of its own thoughts on the subject in the Religious Freedom Restoration Act, 3 which was struck down by the Court at the end of its 1997 term in City of Boerne v. Flores. 4

This Article takes an entirely different approach. Based on an analysis of the actual language used by the Supreme Court to characterize religion, this Article argues that the Court takes a common-sensical approach to each religion brought before it. The Justices as a unit look at the particular fact pattern of the religion case and characterize it in a way that is close to both the popular culture and ...
 
 
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