Women's Wrongs, Religions' Rights: Women, Free Exercise, and Establishment in American Law

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.