The Constitution and the Goods of Religion

27 Pages Posted: 6 Jul 2011 Last revised: 17 Aug 2011

Date Written: 2011

Abstract

The Constitution forbids the “establishment” (whatever that means) of, “religion,” (whatever that is). Whether this prohibition, or a parallel constraint arising from liberal democracy itself, means that government must refrain from acting on religious, “reasons,” or, “grounds,” is a question that has exercised theorists for a generation or so. But from that general debate we can extract a somewhat narrower question: does the nonestablishment prohibition mean that government cannot act to secure or promote various, “goods,” associated with, “religion?”

This essay addresses that question by attempting some sorting out. The essay distinguishes between two different functions, an epistemic and an axiological functions, that religion might serve in political decision-making. Then, within the axiological function, the essay distinguishes among different kinds of goods that might be described as, “religious,” and considers whether these different goods are or are not legitimate bases for law under the Constitution. The essay concludes by suggesting that proponents of secular government often trade on an equivocation: under the general heading of, “religion,” they conflate distinct functions and both permissible and impermissible goods, and thereby condemn measures that are most likely the product of perfectly permissible considerations.

Keywords: First Amendment, Establishment Clause, Religion, Constitutional Law, Liberalism

JEL Classification: K10, K39

Suggested Citation

Smith, Steven Douglas, The Constitution and the Goods of Religion (2011). San Diego Legal Studies Paper No. 10-059. Available at SSRN: https://ssrn.com/abstract=1879398

Steven Douglas Smith (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-7969 (Phone)
619-260-2492 (Fax)

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