The exploitation of religious passions in the U.S. constitutional practice : the Christian Right and the judicial review

This article seeks to examine the uneasy relations between the modern liberal constitutional state and religious organizations, and the role a constitutional court can play in this regard. Attempts to institutionalize Christian cultural preferences required translating these demands into legal obligations or exemptions and, by extension, into Supreme Court decisions, which are discussed in more detail. In the area of Establishment Clause jurisprudence the Supreme Court of the USA moved to a regime that requires direct funding of religious enterprises, while in the current Free Establishment Clause jurisprudence the Court practically abandoned the Employment Division v. Smith decision which means that the government needs to demonstrate a compelling interest in targeting a religious practice. This stance proved very consequential during the COVID-19 pandemic, when the Court blocked some governmental regulations protecting public health. I argue that this is the Scopes Monkey Trial revisited and a feigned problem-solving.