Abstract

http://ssrn.com/abstract=1914572
 


 



Nonbelievers


Nelson Tebbe


Brooklyn Law School

August 22, 2011

Virginia Law Review, Vol. 97, 2011
Brooklyn Law School, Legal Studies Paper No. 246

Abstract:     
How should courts handle nonbelievers who bring religious freedom claims? Although this question is easy to grasp, it presents a genuine puzzle because the religion clauses of the Constitution, along with many contemporary statutes, protect only religion by their terms. From time to time, judges and lawyers have therefore struggled with the place of nonbelievers in the American scheme of religious freedom. Today, this problem is gaining prominence because of nonbelievers’ rising visibility. New lines of social conflict are forming around them, generating disputes that have already gone legal. In this Article, I argue that no wholesale response will do. Nonbelievers and believers should receive comparable protection in some situations but not in others. The method I apply is polyvalent - it seeks to capture the full range of values that should matter, recognizing that the mix of relevant concerns may differ from doctrine to doctrine. Two arguments push against my piecemeal approach, however. First, scholars argue that the term religion should simply be defined to include (or exclude) nonbelievers in advance and for all purposes. Second, leading thinkers have recently criticized the special place of religion in American law. For them, even if nonbelief is not a religion, it should always be treated with similar solicitude. Rejecting both of these positions, I contend that definitional approaches are unlikely to be helpful, and that careful judges will determine the specialness of religion in a variegated way. Applying this method to several doctrines - including antidiscrimination, free exercise exemptions, church autonomy, government endorsement, and public funding - I propose protecting nonbelievers only in some of these areas. In conclusion, I suggest that adjudication of religious freedom claims generally is neither impossible nor senseless, despite the fears of some.

Number of Pages in PDF File: 71

Keywords: nonbelievers, atheists, agnostics, secular humanists, freethinkers, religious freedom, free exercise, establishment clause

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Date posted: August 23, 2011  

Suggested Citation

Tebbe, Nelson, Nonbelievers (August 22, 2011). Virginia Law Review, Vol. 97, 2011; Brooklyn Law School, Legal Studies Paper No. 246. Available at SSRN: http://ssrn.com/abstract=1914572

Contact Information

Nelson Tebbe (Contact Author)
Brooklyn Law School ( email )
250 Joralemon Street
Brooklyn, NY 11201
United States
718.780.7960 (Phone)

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