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Should the U.S. constitution afford greater discretion to states than to the federal government in matters affecting religion? In recent years, a number of commentators have been asserting that the Establishment Clause should not apply to the states. Justice Thomas has embraced this view, while offering his own refinements to it. Moreover, the Supreme Court's decision in Locke v. Davey (2004) ruled that a state did not run afoul of the Free Exercise Clause when it refused to subsidize religious studies, in a context in which the Establishment Clause would have permitted the subsidy.

This paper offers a focused (re)consideration of federalism and faith. Part I offers a succinct look at federal-state relations on the subject of religion prior to Reconstruction. Part II confronts the constitutional developments that emerged from the Civil War and Reconstruction, and traces the Reconstruction story into the 20th century, when the Supreme Court first applied the Religion Clauses to the states. Part III then briskly chronicles the rise of Separationist interpretations of both Religion Clauses, and the incomplete recession to narrow interpretations of the Religion Clauses that mark the past several decades.

Part IV represents our contextualized effort to add value to the conversation about faith and federalism. State discretion over religion policy is a function of two considerations - the substantive content of the First Amendment, and the extent to which the First Amendment binds the states. In order to test a series of intuitions about faith and federalism, we analyze in Part IV a series of three problems - one in which the state pursues Separationist goals, and the other two in which the state appears to be promoting or aiding religion. Part IV considers these problems within three, distinct regimes of federalism: 1) the current regime of full incorporation of the First Amendment's Religion Clauses; 2) a regime in which the states remain bound by the Free Exercise Clause but are liberated from the Establishment Clause; and 3) an imagined regime of partial incorporation, designed to maintain core non-Establishment norms while explicitly expanding state discretion in the periphery of non-Establishment. We believe that exploration of these problems, and of contrasting regimes of state discretion, will cast considerable light on what is at stake in the battle over federalism and faith.

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GWU Law School Public Law Research Paper No. 206

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