67 Pages Posted: 29 Jan 2012 Last revised: 26 Dec 2012
Date Written: January 25, 2012
This Article argues that leading accounts of the First Amendment’s Religion Clauses fail to provide a coherent and morally attractive position on whether religion warrants special treatment as compared with secular ethical and moral doctrines. Focusing on two central issues involving whether laws must have a secular purpose and whether religious exemptions are constitutionally mandatory, this Article rejects existing theories as either theoretically inconsistent or substantively mistaken. If religion does not warrant special treatment, then it is important to ask what our attitude should be toward the Religion Clauses. Under originalist theories of constitutional interpretation, the Religion Clauses should be considered morally regrettable. Under non-originalist theories, there may be interpretations of the constitutional text that allow for the possibility of moral reconciliation. Either way, rejecting the idea that religion is special requires reassessing our understanding of the Religion Clauses.
Keywords: First Amendment, Religion Clauses, secular purpose, religious accommodation, public reason, originalism
Suggested Citation: Suggested Citation
Schwartzman, Micah, What if Religion Isn't Special? (January 25, 2012). University of Chicago Law Review, Vol. 79, No. 4, 2013; Virginia Public Law and Legal Theory Research Paper No. 2012-03. Available at SSRN: https://ssrn.com/abstract=1992090 or http://dx.doi.org/10.2139/ssrn.1992090