What if Religion Isn't Special?
University of Virginia School of Law
January 25, 2012
University of Chicago Law Review, Vol. 79, No. 4, 2013
Virginia Public Law and Legal Theory Research Paper No. 2012-03
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.
Number of Pages in PDF File: 67
Keywords: First Amendment, Religion Clauses, secular purpose, religious accommodation, public reason, originalism
Date posted: January 29, 2012 ; Last revised: December 26, 2012