Freedom of Religion or Freedom of the Church?
Steven Douglas Smith
University of San Diego School of Law
August 17, 2011
San Diego Legal Studies Paper No. 11-061
This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church. Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of “religion,” or that it creates or accepts a special category of “religion” that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church - a campaign devoted to maintaining the church as a jurisdiction independent of the state-developed into a commitment to freedom of conscience (conscience being the “inner church,” so to speak). The section then relates how this commitment to freedom of the church - both the institutional church and the inner church - came to be reconceived as a more generic commitment to freedom of religion, with the unfortunate consequences considered in Part 1.
Number of Pages in PDF File: 49
Keywords: religion, constitutional law, freedom of the church, first amendment
JEL Classification: k10, k39Accepted Paper Series
Date posted: August 18, 2011
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