In an online followup to his analysis of the Supreme Court's recent decision in CLS v. Martinez for the NYTimes, Stanley Fish responds to his critics with an explanation of why religious freedom cases these days have so little to do with the First Amendment's religion clauses. Recent church-state jurisprudence, he argues, has watered down religion's impact:
Lurking in the background of these cases is the question of exactly what a religion is. The courts do not confront that question directly — how could they? what would be their expertise? — but when even-handed treatment becomes the rule in aid and burdens on free exercise must be tolerated if imposing them was not the law’s affirmative intention, an answer has implicitly been given: religion is just another discourse, no different than any other. That is to say, religion is not special; it is not special in the negative sense implied by the establishment clause, which by its very existence announces, “watch out, this stuff is trouble”; and it is not special in the positive sense declared by the free exercise clause, which seems to announce, “this is something the state must protect.” The evisceration of the establishment clause gets religion in the door but at the expense of its unique status; the neutering or “neutraling” of the free exercise clause completes the denial to religion of the label “special.”
