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The Constitutional Justification of Religion

in Ecclesiastical Law Journal 18 (2016) 14-35.

25 Pages Posted: 12 Mar 2017 Last revised: 1 Jul 2017

Rafael Domingo

Emory University School of Law; University of Navarra

Date Written: March 9, 2017


In this paper, I address religion from a legal perspective. I argue that religion should be settled outside the secular legal system; otherwise, the secular legal system would not be truly secular. However, religion demands special protection as a public good and social value, as it constitutes an extrinsic constitutional limit of the legal. For a secular legal system, protecting religion ultimately means protecting human beings’ pursuit of the suprarational. Protecting suprarationality has three important legal consequences: (a) suprarational acts in the strictest sense should never be validated as legal acts; (b) democratic communities should not use suprarational arguments in legal discourse; and (c) the secular legal system cannot regulate suprarationality or the essentials of the religious community. The protection of religion demands both a dualistic structure that distinguishes the political community from the religious community and the treatment of religion as a right: the right to religion.

Keywords: religion, constitution, religious freedom, suprarationality

Suggested Citation

Domingo, Rafael, The Constitutional Justification of Religion (March 9, 2017). in Ecclesiastical Law Journal 18 (2016) 14-35.. Available at SSRN: or

Rafael Domingo (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States


University of Navarra ( email )

Universidad de Navarra
Campus Universitario
Pamplona, Navarra 31009

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