Religion and the Freedom-Weighted View: Reconsidering First Amendment Challenges to Laws Promoting Autonomy
Matthew A. Smith
affiliation not provided to SSRN
June, 20 2008
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.
Number of Pages in PDF File: 35
Keywords: religion, free exercise, establishment, church and state, autonomy, freedom
Date posted: July 30, 2008