A Theory of Religion's Special Protection in American Law

Abstract

This thesis proposes a normative case for a right to religious liberty in liberal societies based on an account of religion’s final (distinctive, intrinsic) value. It also sketches implications of this view for legal doctrines on religious liberty in the United States.

I proceed in four steps. Chapter 1 establishes that any theory of religious liberty will be informed by an account of the value of religion (i.e., of what, if anything, makes it protection-worthy in the first place). Exploring the growing academic consensus against having any distinctive protection for religion, the chapter shows that this consensus presupposes that religion is just one among many ways to shape personal (and communal) identity. But several major theories built on this idea are problematic, which suggests that religious activity actually does offer a value unavailable in other identity-shaping activities—one that might warrant distinctive protection for religion after all.

Before exploring that possibility, chapter 2 steps back to answer a deeper objection to religious liberty: that there is no fair way to define this right, because we cannot fashion a coherent social concept of “religion” in the first place. Drawing on sociology and analytic jurisprudence, I argue that we can and should develop a theory of religion based on the central or focal case of the internal religious perspective: the perspective that religious practitioners have of the reasons for their behavior that can best make sense of religious practice as a whole.

That perspective, Chapter 3 contends, will affirm a final value distinctive to religious activity: namely, the pursuit of harmony with what one perceives to be the ultimate ground of reality. I sketch the outlines of this value, which resonates with a wide range of both Eastern and Western religious traditions and offers a touchstone for both an adequate social concept of religion and a political theory of religion’s special protection.

The rest of chapter 3 and all of chapter 4 explore practical implications for the scope of certain legal doctrines on American religious liberty.