San Diego Law Review

The Opposite of Anarchy and the Transmission of Faith: The Freedom to Teach after Smith, Hosanna-Tabor, Obergefell, and the Ascendancy of Sexual Expressionism


Helen M. Alvaré


Faculty editor: Larry Alexander


Publication Law Review
Volume 53
Issue 1
Start Page 1
Month March
Year 2016
Type Article
Subject Area


There are several avenues available for protecting religious schools’ freedom but none involving rote application of the summary holdings of Smith or Hosanna-Tabor. This shouldn’t surprise; little is simple where the religion clauses are concerned. Nevertheless, to provide free exercise and nonestablishment “on the ground” and to allow core tenets of Judeo-Christian traditions a genuine, not just theoretical, chance of reaching the next generation, the Supreme Court needs to find a way within the labyrinth of its current First Amendment jurisprudence to allow religious schools and parents the freedom to teach.
This Article will treat this question as follows. Part I will briefly consider the relationship between SMP issues and fundamental Judeo-Christian doctrines concerning God and the world. It will also treat difficulties today facing the task of conveying faith to the next generation without the assistance of an integrated religious education. Part II will consider various interpretations of the leading cases and statutes governing religious freedom respecting employment and conclude that there are available interpretations which would allow religious schools authority over their own staff. The Conclusion frames the concrete solutions that these interpretations suggest.


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