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Religion and the Freedom-Weighted View: Reconsidering First Amendment Challenges to Laws Promoting Autonomy

35 Pages Posted: 30 Jul 2008  

Matthew A. Smith

affiliation not provided to SSRN

Date Written: June, 20 2008

Abstract

In this paper, I defend a novel view of the religion clauses. The historical origins of the clause suggest two competing conceptual interpretations: one which privileges religion (the religion-weighted view) and one which privileges freedom (the freedom-weighted view). I argue for the freedom-weighted view and explore the jurisprudential implications of both views. I also argue for the counterintuitive result that, if we accept the freedom-weighted view, Free Exercise challenges to certain laws promoting autonomy (freedom) in children are analytically incoherent. Because such laws by definition promote autonomy, they cannot be inconsistent with the Free Exercise clause under a range of conditions.

Keywords: religion, free exercise, establishment, church and state, autonomy, freedom

Suggested Citation

Smith, Matthew A., Religion and the Freedom-Weighted View: Reconsidering First Amendment Challenges to Laws Promoting Autonomy (June, 20 2008). Available at SSRN: https://ssrn.com/abstract=1148836 or http://dx.doi.org/10.2139/ssrn.1148836

Matthew A. Smith (Contact Author)

affiliation not provided to SSRN ( email )

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