Play in the Joints Beyond the Religion Clauses

Michael C. Dorf - Cornell Law School
Vol. 59
Page 37

Recent Supreme Court cases call into question the longstanding principle that the Free Exercise and Establishment Clauses should be construed to permit "play in the joints" between what the former requires and the latter forbids. That development is unfortunate both with respect to the Religion Clauses and more broadly. Play in the joints means interpreting potentially conflicting legal obligations to allow actors subject to them a range of options that are neither forbidden nor required. The concept can and should apply to various legal questions, including the permissibility of race-conscious student assignment, clashes between free speech and antidiscrimination laws, and much more. Play in the joints avoids placing regulated actors in damned-if-you-do-damned-if-you-don't scenarios. It promotes judicial humility, fair notice, federalism, and individual and institutional freedom. Given the value pluralism that the U.S. Constitution and laws embody, play in the joints is a vital tool for navigating inevitable clashes among legal obligations.

View Full Article