This Article approaches the originalism debate from a new angle— through the lens of the recently defeated Federal Marriage Amendment. There was profound and very public disagreement about the meaning of the FMA—in particular about the effect that it would have had on civil unions. The inescapable conclusion is that there was no original public meaning of the FMA with respect to the civil unions question. This suggests that often the problem with originalism is not just that the original public meaning of centuries-old provisions of the Constitution is hard to find (especially by judges untrained in history). The problem is frequently much more fundamental, and much more fatal; it is that there was no original public meaning to begin with.

This Article attempts to reset the relationship between theories of constitutional authority and methods of constitutional interpretation. Several scholars assert that our reasons for respecting the United States Constitution as law—despite its imperfection and dead authors—strongly influence the proper method of interpretation for that text. The “why” of authority supposedly drives the “how” of interpretation. But this relationship can be better understood. To the extent an authority theory is distinguishable from interpretive method, it is true that the former will identify what counts as law to be interpreted. Beyond that, the asserted relationship fades.

The Supreme Court has explained that stare decisis binds the Court to both its result and “those portions of the opinion necessary to [the] result.” Yet the Supreme Court does not seem to extend this principle to those “necessary portions,” herein called subdecisions, that involve methodological questions. For example, when a case rests on a subdecision about whether a Court should consult legislative history in interpreting a statute, the effect of that opinion on future cases is unclear. This Note focuses on stare decisis with respect to subdecisions about statutory interpretation to shed light on the broader issue of the scope of stare decisis.

This Note discusses how free exercise claims made in custody disputes should be handled post-Employment Division v. Smith. Before Smith, the Supreme Court had held that free exercise claims should be evaluated using strict scrutiny. In Smith, the Court modified this analysis and stated that, in general, strict scrutiny is not required to evaluate free exercise infringement claims. However, the Court carved out several exceptions in which strict scrutiny analysis is still required. One such exception is hybrid rights, in which a free exercise claim is asserted in combination with another right. Free exercise claims made in custody disputes may create a hybrid right, since they may assert parental rights combined with free exercise rights. State courts, however, have been inconsistent as to whether they recognize hybrid rights in custody disputes. If these claims constitute hybrid rights, then Smith would entitle them to heightened scrutiny. This Note argues that state courts should explicitly recognize hybrid rights in custody disputes, but should not apply strict scrutiny if both parents are fighting for a right that only one of them can exercise.