The Path of American Religious Liberty: From the Original Theology to Formal Neutrality and an Uncertain Future

Abstract:     
In this article, I sketch the history of religious liberty in the United States and speculate on its future. I explain the Founders' "original theology" of religious liberty, which granted a privileged status to Christianity and which, more generally, regarded religion as distinct and distinctly important. I then discuss how, over time, the original theology has gradually given way to the principle of "formal neutrality," i.e., equal treatment and nondiscrimination not only between and among religions, but also between religion and nonreligion. This principle currently plays a powerful role under both the Free Exercise and the Establishment Clauses. Looking to the future, moreover, I contend that various philosophical, religious, jurisprudential, and political forces support the continued and perhaps increasing importance of formal neutrality. This notion of formal neutrality - equal, not special, treatment for religion - tends to belie the Founders' claim that religion is distinct and distinctly important. For this reason among others, I conclude that the future of religious liberty may be in jeopardy.

Keywords: Constitutional Law, Establishment Clause, Free Exercise Clause, Religion Clauses, Religious Liberty

JEL Classifications: K00, K10, K19, K30, K39

Accepted Paper Series