51 Pages Posted: 16 May 2012
Date Written: 2012
Professor Paulsen argues that religious freedom only makes entire sense as a constitutional arrangement on the premise that God exists, that God makes actual demands on human loyalty and conduct, and that those demands precede and are superior in obligation to those of the State. Religious freedom exists to protect the exercise of plausibly true understandings of God's actual commands, as against state power, and to disable state power to proscribe -- or prescribe -- religious exercise. The article explores four possible stances of society toward religious freedom, depending on whether society and state embrace the idea of religious truth (or not) and whether society and state embrace the idea of religious tolerance (or not). It then argues that America's Constitution's religion clauses, in their original conception, are predicated in a belief in the possibility of religious truth and the imperative of religious tolerance so that the state does not interfere with private individuals' and groups' pursuit of truth. This perspective illuminates many of the issues that have plagued interpretation of the First Amendment religion clauses.
Keywords: religious liberty, freedom of religion, religious freedom, First Amendment, Religion Clauses, Free Exercise Clause, Establishment Clause, constitutional interpretation, constitutional law
Suggested Citation: Suggested Citation
Paulsen, Michael Stokes, The Priority of God (a Theory of Religious Liberty) (2012). Pepperdine Law Review, 2012, Forthcoming; U of St. Thomas Legal Studies Research Paper No. 12-15. Available at SSRN: https://ssrn.com/abstract=2061162