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11 FIU Law Review 47 (2015)


Among the dozens of Supreme Court cases on the free exercise of religion, women play a mostly invisible part. We know of Adell Sherbert and Frieda Yoder; and less famously, Alma Lovell, Lillian Gobitis, Paula Hobbie, Sarah Prince, and Lucie McClure. We know that these women go out into the streets to tell the Good News, refuse to salute idols, refuse to work on the Sabbath, and refuse to go to school in violation of their religion. But, we do not hear their voices very loudly.

At the same time, until recently, we have consistently heard only one woman's voice among the United States Supreme Court Justices who propound on what the Free Exercise Clause, and related statutes, require from the states in the protection of religious freedom. Justice O'Connor, the woman who served longest on the Court, has certainly made her mark on Religion Clause jurisprudence, though primarily in the Establishment Clause area-one powerful exception is her concurrence in Employment Division v. Smith. Justices Kagan, Sotomayor, and Ginsburg, coming more recently to the religious freedom conversation, have also contributed important insights, again primarily in non-Free Exercise cases, but how these newer Justices will shape their own Free Exercise jurisprudence is not as clear.

Yet, even in the early stages of jurisprudential development for these Justices, it might be helpful to ask whether we are hearing "a woman's voice" in either the litigants before the Court or the women Justices who write opinions about these cases. And, we might wonder whether there are distinct themes that might characterize a "woman's voice." As we move into theory, I will suggest that there may even be a religious feminist voice that provides a set of values that would help us fruitfully explicate the Free Exercise Clause. It goes without saying that talking of a "woman's" or "feminist" voice, or even a "religious feminist" voice, already essentializes a luxurious diversity of women's voices and opinions about the troubling issues that confront judges attempting to find a faithful reading of the Free Exercise Clause. Nevertheless, I believe that not exploring what such a voice might sound like risks too easy acceptance of the existing readings of Free Exercise. They have been largely constructed from a secular imagination, and by male judges and male litigants, about what is at stake in Free Exercise jurisprudence. Therefore, they do not represent the important diversity of expression about how robust Free Exercise protection might contribute to the flourishing of a pluralistic, but flawed, democratic culture.

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