Inessential Practices was published in the Indian Law Review.
In my first year of law school, the Chief Editor of the law review suggested that we write an essay together about India's religion jurisprudence, and particularly, the essential religious practices test. We planned to finish it quickly and have it published in a few months in a random student-run law review. Two years later, my co-author had an LLM from NYU and was practicing as an advocate. I was in the third year. And what we hoped would be a short essay was a nearly 9000 word manuscript that dealt with far more than we intended it to.
Here's the abstract:
For religious disputes, Indian courts apply the essential practices doctrine, granting constitutional protection only to practices that are “essential to the religion.” This test soon acquired a normative character, sometimes excluding “superstitious” practices. However, some scholars believe that courts can evaluate essentiality without making normative judgements. We suggest that this distinction between descriptive and normative essentiality tests is deceptive. Instead, we argue that evaluations of essentiality are cryptonormative (i.e. even evaluations that are not facially normative possess a normative character).
Recent Supreme Court judgements indicate that it might depart from the essential practices doctrine. If it does, courts should instead evaluate the sincerity of the claimant and the plausibility of the claim and then balance religious freedom against the state interest. However, adjudicative norms, including limitations posed by public interest litigation, impede a non-normative inquiry. We suggest the beginnings of an alternate approach that might help overcome those challenges.