Gilad Abiri*
Abstract
The idea that religion merits special treatment under the Religion Clauses of the First Amendment has significant intuitive, textual, and historical clout. However, when we try and find or develop a coherent and plausible theoretical justification for the constitutional distinctiveness of religion, we come up empty. Religion, as we commonly recognize it, seems to have no unique attributes, and certainly not ones that justify singling it out from other forms of belief and culture. The firm conviction—often expressed by the Supreme Court—that religion is and should be treated distinctly under the First Amendment seems theoretically inexplicable.
This Article first rejects the standard distinctivist account, which holds that religion should be given special privileges and disabilities because it is a singular phenomenon. It shows that religion is not a uniquely demanding set of beliefs, nor is it a particularly encompassing culture, and finally, that it is not alone in making political arguments that cannot be explained to non-believers. Instead, this Article argues that religion’s similarity to state-based political identity is what actually justifies singling out religion. Both religion and the state make overlapping claims for loyalty, truth, and identity that are similar in nature. Both base their authority to make these claims in a system of rituals and symbols grounded in theology. These similarities create a constant drive towards conflict between the state and the religious groups living within its borders.
To alleviate and mitigate this potential conflict, the Constitution established a “Jeffersonian Compromise” in which religious adherents accept the exclusion of faith from the political sphere in return for the guarantee of religious freedom. Conceptualizing the distinctive status of religion under the First Amendment as a compromise makes it clear why these protections do not apply to all forms of strong belief or encompassing cultures. Since this compromise is motivated and justified by an overlapping and conflict-prone relationship between state and religious identities, it can only produce duties and obligations for those sides. It simply does not apply to other forms of belief and culture.
*Lecturer in Law, Yale Law School and Postdoctoral Fellow, Yale University. I am deeply grateful to Paul Kahn, Anthony Kronman, and Owen Fiss for countless conversations, insightful feedback, and guidance. This Article benefited greatly from comments and suggestions made by Samuel Moyn, David Grewal, Joseph Weiler, Yitzhak Benbaji, Moshe Halbertal, Paolo Carozza, Gordon Silverstein, Ofra Bloch, Daniel Maggen, Roman Zinigrad, Fernando Braccacinni, Sebastian Guidi, Natalia Pires, Shlomit Jessel, and by participants in workshops at Yale Law School, NYU Law School, The Kellogg Institute at the University of Notre Dame, and the National University of Singapore. I am thankful for the comments and edits suggested by the Penn State Law Review editorial board. Finally, I wish to thank the Global Hauser Program at NYU Law School for their generous support.
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