INTRODUCTION: RELIGION AS A POLITICAL CATEGORY…
In January 2011, I taught my first collegiate course, Constitutional Rights and Liberties, to thirty eager students To ignite their interest, I introduced the Free Exercise Clause by posing thought-provoking questions, such as what qualifies as a religion, the protections afforded by the Free Exercise Clause, and whether it grants religious believers special exemptions from laws I aimed to highlight the complexity of these issues and explore why religion is treated differently from other ethical beliefs.
Upon reflecting on my last question, I realized I had little to say in response I have always viewed myself as a proponent of legal frameworks that prioritize religion, influenced by cases like Sherbert v Verner and Wisconsin v Yoder However, I had never contemplated why religious groups might warrant this unique legal consideration It appeared self-evident to me that religion holds a sacred status.
The case 2 406 U.S 205 (1972) highlights a longstanding tradition of respecting religious beliefs, acknowledging the unique nature of religion on multiple levels However, it raises concerns about the lack of clarity regarding the reasons these factors warrant a privileged political status.
As a student exploring the intersection of law and political theory, I anticipated finding a robust theoretical defense for the unique status of religion within legal discourse However, after extensively reviewing the existing literature, I discovered a significant lack of satisfactory responses to this inquiry This gap prompted me to reflect on its implications and ultimately led me to consider the possibility that religion may not warrant special treatment in legal contexts.
The lack of a comprehensive theoretical exploration of religious specialness is striking, especially considering the prominence of religious exemption debates in the United States Legal discussions often frame these religious issues in ways that can obscure more profound theoretical insights The ongoing legal debate centers on whether the framers of the Constitution intended to prioritize religious exemptions, highlighting the need for a deeper understanding of the underlying theoretical implications.
The Constitution, whether intentionally or implicitly, accommodates the justification for exemptions in the First Amendment, raising questions about the legal foundations for such privileges within U.S law Although some argue against granting special status to religious groups, they often find their arguments limited by legal context and historical precedent, which complicates the ability to address the issue purely from a conceptual or normative perspective.
The existence of religious exemptions in US jurisprudence raises a complex issue; while they may be mandated by legal texts, their normative desirability is questionable This perspective suggests that an interest group could have ingrained its privileges into the legal framework during a time of greater cultural homogeneity Consequently, religious interests might enjoy an unfair advantage today, particularly as modernization has increasingly separated religion from political discourse This concern is echoed in Justice John Paul Stevens’s concurrence in the City of Boerne v case, highlighting the tensions between historical privileges and contemporary societal dynamics.
The statute granting religious exemptions has given the Church a legal advantage that is unavailable to atheists or agnostics, which the First Amendment prohibits as a governmental preference for religion over irreligion This discriminatory framework, even when viewed in a neutral light, requires a strong theoretical justification.
4 See the literature on religious fundamentalism as a global phenomenon created as a reaction to modernization, such as: Torkle Brekke, Fundamentalism: Prophecy and Protest in an Age of
Globalization (New York: Cambridge University Press, 2012), 265; Steve Bruce, Fundamentalism
(Cambridge, UK: Polity Press, 2008), 40; Michael Emerson and David Hartman, “The Rise of Religious Fundamentalism,” Annual Review of Sociology 32(2006): 127-144; Peter Herriot, Religious
Fundamentalism: Global, Local and Personal (New York: Routledge, 2009); George Marsden,
Fundamentalism and American Culture (New York: Oxford University Press, 2006), Introduction; Malise
Ruthven, Fundamentalism: The Search for Meaning (New York: Oxford University Press, 2004)
The potential existence of unique religious exemptions raises moral concerns, despite being implicitly required by the US Constitution This underscores the importance of evaluating the normative desirability of such distinctions Historically, various political practices have been constitutionally accepted yet later deemed morally objectionable, necessitating constitutional amendments, as seen in the cases of slavery and women's suffrage Therefore, the discussion must extend beyond mere constitutionality to also encompass normative considerations.
The debate on exemptions often overlooks the fundamental question of why religion deserves special protection, instead presuming its inherent worthiness of special status This oversight has significant implications for how we approach the issue of granting exemptions, particularly in the context of ethical considerations Addressing this normative question is crucial in understanding the role of religion in the public sphere, and doing so can reveal often-overlooked aspects of the discussion By examining the underlying assumptions of exemptions, we can better navigate the complex jurisprudential issues surrounding the granting of exclusive exemptions to religion.
Advocates for religious liberty passionately defend its unique status among various freedoms, driven by a profound connection to their beliefs This fervor often leads to emotional arguments that may overlook crucial questions regarding the effectiveness of treating religion as a distinct category in political discourse To evaluate this issue objectively, it is essential to consider whether seeking special status truly benefits those advocating for religious causes The complexities associated with such a status could potentially create more challenges Therefore, it remains a valid perspective that the interests of religious liberty might be more effectively pursued through the same legal avenues as other liberties.
I believe that our motivations extend beyond pure rationality, often intertwining with our passions, particularly in the context of religion, which may be rooted in deeper sentiments than mere logical reasoning While I advocate for the translation of demands for special political treatment into accessible language, especially when egalitarian ideals are at risk, I maintain that the necessity for rigorous political and legal scrutiny does not undermine the inherent validity of religious attachments.
6 For a beautiful articulation of this position, see the opinion of the Court in Cohen v California, 430 U.S
15 (1971), which says in engaging in First Amendment expression that the emotive content may often demand just as much protection as the cognitive content of speech
7 See the Chapter II section on burden of proof and the discussion of Mansbridge.
The intersection of religion and politics today is influenced by outdated legal and political frameworks that do not align with contemporary societal needs The application of the Free Exercise Clause, based on originalist interpretations, reflects a time when religion held a significantly different role in the United States This disconnect highlights the necessity to reassess the existing model guiding discussions about religion in modern politics While this analysis focuses on contemporary issues rather than a comprehensive historical overview, it is essential to consider relevant context, such as the example of William Penn, to illustrate the current model of religion's role in society.
The discourse surrounding the relationship between the state and religious liberty in the United States is distinct, rooted in the nation’s Christian foundations A notable figure in this context is William Penn, a seventeenth-century Quaker and founder of Pennsylvania, who championed religious liberty as a crucial political priority Although he does not explicitly discuss exemptions, Penn emphasizes that religious decisions warrant special protection, defining liberty of conscience as not just a mental belief but an imperative to engage in worship, which he views as essential to avoid divine punishment For Penn, religious mandates are not optional; they dictate how adherents must live their lives, making the consequences of disobedience significant This creates a clear distinction between religious and nonreligious ethical choices, as the stakes of religious beliefs involve eternal life and death, positioning them as matters of state concern.
Penn's stance highlights the fundamental reasoning behind modern assertions of religious importance in a diverse society, emphasizing that religious mandates are inherently unique It is assumed that all religious beliefs carry significant metaphysical weight, regardless of their specific content However, if we consider religion as a wide array of beliefs, it becomes essential to recognize the nuances that differentiate them within the broader context of pluralism.
RELIGIOUS DISTINCTIVENESS: EXEMPTIONS AND THE
EXEMPTIONS AND THE POLITICAL CATEGORY
In 1996, residents of Richmond's affluent Fan neighborhood raised concerns about a local soup kitchen operated by Stuart Circle Parish, claiming it violated a city ordinance limiting the frequency and attendance of such facilities in residential areas This prompted a backlash from religious leaders across the city, leading to proposed legislation aimed at protecting religious practices on private land Patti Russell, the leader of the meal ministry, emphasized the community's thoughtful commitment to their cause, stating, “We’re not just a bunch of mindless do-gooders.”
Churches have a responsibility to support individuals in need, as emphasized by David Johannas, who questioned why religious organizations receive more freedom than others in a supposedly free country This highlights the ongoing debate about the enforcement of policies that govern the actions of various groups within society.
The debate sparked in this instance illustrates a question of general theoretical significance: should liberal democracies treat religious groups differently from other
15 Jan Cienski, “Soup Kitchen Issue Spurs Religious Freedom Debate,” The Freelance Star, 4 February 1998.
The question of whether actions motivated by religious belief should be treated as a distinct category requiring unique state recognition has gained prominence, particularly in nations that guarantee religious freedom In the United States, for instance, interpretations of the Free Exercise Clause of the First Amendment suggest that religious practitioners deserve special protections Across liberal democracies, there have been calls for religious exemptions from various regulations, including public safety laws and workplace policies, echoing arguments similar to those of Richmond residents This perspective, which treats religious moral choices as ethically unique and relevant to legal frameworks, differs from multicultural approaches by emphasizing the need for distinctive political treatment of certain moral decisions.
Attempts to justify the distinctiveness of religion for legal exemptions have proven unsuccessful, as there is no categorical justification for such distinctions Instead, it is essential to treat all moral frameworks equally, relying on ethical principles that focus on normativity and moral dilemmas rather than religious standards.
We can justify normativity, but not the category of religion, as a legitimate basis for exemption from the law.
This project aims to critically assess the validity of the political category concerning religious exemptions The first section reveals a tendency in existing work to neglect key issues, arguing that claims of religious distinctiveness fail to warrant preferential or harmful treatment The second section addresses the concerns of proponents of this discrete concept, advocating for the equal treatment of all ethical categories in moral exemptions It posits that, from a political standpoint, religious and nonreligious frameworks share significant similarities relevant to state considerations, thereby supporting the application of a uniform exemption process under the broader classification of ethical exemptions rather than solely religious ones.
This article challenges the notion that religion should be viewed as a distinct category, highlighting systematic errors in current arguments that support this perspective By doing so, it aims to enrich the discussion on religious exemptions and their implications Advocates of the discrete view argue for separate treatment of religion, but this approach warrants critical examination to foster a more nuanced debate.
In "Culture and Equality: An Egalitarian Critique of Multiculturalism," Brian Barry explores the intersection of cultural diversity and equality, challenging the principles of multiculturalism Similarly, Christopher L Eisgruber and Lawrence G Sager examine the complexities of religious freedom within the framework of the Constitution, highlighting the balance between individual rights and societal norms Additionally, Corey Brettschneider contributes to this discourse by analyzing the implications of democratic values on personal freedoms These works collectively underscore the importance of navigating cultural and religious diversity while upholding egalitarian principles.
The article "Transformative Theory of Religious Freedom: Promoting the Reasons for Rights" highlights the importance of understanding how a legal system can function without segregating religion, rather than solely questioning why religion should not be prioritized While some scholars, like Leiter, approach the topic theoretically, this piece emphasizes an applied perspective, addressing central questions that are often overlooked The lack of engagement with these questions weakens the arguments of those advocating for special treatment of religion, while opponents tend to dismiss these concerns without meaningful dialogue The scholarly discourse has diverged into two opposing directions, necessitating a bridge to enhance communication between perspectives This article aims to lay the groundwork for such dialogue, particularly focusing on the ethical dimensions unique to religious beliefs, which are often conflated with cultural exemptions in academic discussions.
This article explores the unique role of religion in political contexts, particularly within liberal democracies that utilize exemptions to protect citizens' interests It emphasizes the importance of questioning whether prioritizing religion in political considerations is beneficial By focusing on the distinct features of religion, the discussion aims to determine if it warrants separate political treatment compared to other ethical beliefs The conclusion asserts that religious claims should be assessed using the same standards as any other ethical perspective, requiring religious individuals to justify their requests for special treatment using universally applicable arguments Ultimately, adopting a language of justice that encompasses all citizens reflects a commitment to equality and fairness in political discourse.
To effectively distinguish religion as a unique category, we must clarify the objectives of this endeavor While certain national histories, as noted by legal scholars like Michael McConnell, may grant heightened protection to religious claims—such as the interpretation of the US Constitution—there remains a need for a robust theoretical justification for this approach within liberal democracies In these societies, the principle of equal treatment among individuals should prevail, placing the onus on proponents of special religious treatment to clearly define the rationale for such distinctions.
18 “Political” meaning having features relevant for judicial or legislative consideration, and more so salient in political considerations to the point of being dispositive
19 Michael W McConnell, “Origins and Historical Understandings of the Free Exercise of Religion,”
Harvard Law Review 103(1990): 1409–1517; “Accommodation of Religion: An Update and a Response to
In her analysis, Jane Mansbridge emphasizes the necessity for heightened distinctive treatment from the state for certain features, arguing that a specific rule governs the process of delegitimating preferential treatment afforded to one group over another.
When the rationale for a conceptual barrier separating two groups is challenged, the responsibility shifts to its defender to provide valid justifications for the unequal treatment In the framework of formal justice, equality is inherently prioritized, and it becomes the default stance once the arguments for differential treatment are deemed inadequate.
If the group demanding special treatment cannot justify such privilege through publicly accessible reasons, then the privilege is discredited and the arbitrary lines must be erased 21
Mansbridge argues that activist groups play a crucial role in challenging the social hegemony of dominant groups by highlighting inequalities and advocating for justice When these subjugated groups effectively articulate the unjust nature of their treatment, the dominant group often reacts with outrage but also feels a reluctant obligation to pursue equitable treatment.
20 Jane Mansbridge, “Cracking Through Hegemonic Ideology: The Logic of Formal Justice,” Social
The protection of religious groups has evolved beyond just the dominant Christian faith, reflecting a response to challenges against Christianity's hegemony This expansion acknowledges the significance of various religions, suggesting a broader counter-hegemonic movement within the realm of religion.
Organized activists provide theories that everyday activists apply in their daily lives, exemplified by the concept of "male chauvinist." This idea empowers ordinary women to confront the status quo, particularly their roles in the household, by utilizing language that advocates for equality The women interviewed noted success in engaging men through this terminology, demonstrating that the principles of formal justice can serve as a foundation for demanding equal treatment.
RELIGIOUS PRIORITY: AMERICAN RHETORIC AND
In Chapter II, I examined claims about the distinctiveness of religion in relation to exemptions, highlighting that arguments for religious distinctiveness often accompany those for religious priority, yet each can stand independently For instance, Bedi's argument for religious distinctiveness asserts the necessity of acknowledging the unique needs of religious believers without necessitating that the state prioritize their interests over those of nonreligious citizens.
This chapter explores the argument that the state’s primary obligation is to protect the interests of religious believers, emphasizing the tendency to invoke religious superiority It highlights the concept of religion as the "first freedom," a notion frequently found in US political rhetoric Unlike previous discussions that focused on theoretical justifications for religious privilege, this examination addresses the implications of prioritizing religion over other interests.
This chapter primarily examines arguments for religious priority within a liberal democratic context, while consciously avoiding theocratic perspectives It focuses on claims arising from American political discourse, which are often shaped by specific historical developments The analysis highlights how the concept of religion is strategically employed to gain political power Ultimately, the chapter contends that invoking the "first freedom" concept to support religious priority is both inappropriate and misleading in political discussions.
In the 2012 vice presidential debate, moderator Martha Raddatz prompted candidates Joe Biden and Paul Ryan, both Catholics, to discuss how their faith influenced their political views on abortion Ryan expressed his personal pro-life stance and affirmed that Governor Mitt Romney's administration would also advocate for pro-life policies.
The current administration's approach to various issues, particularly regarding "Obamacare," raises significant concerns about the infringement of religious liberties in the United States This policy threatens the fundamental freedom of religion by impacting Catholic charities, churches, and hospitals It is troubling that religious institutions are compelled to take legal action against the federal government to protect their rights to practice their faith freely.
49 Paul Ryan, “2012 Vice Presidential Debate,” Washington, D.C., National Public Radio, 11 October
In the debate, Ryan emphasized the phrase “first freedom,” highlighting its importance to his policy stance, a theme echoed by both him and Romney throughout their 2012 campaign This concept, while central to conservative ideology, is not exclusive to it; many past presidents and advocates for religious liberty have used the term in their speeches However, the true significance of labeling any freedom as the "first" remains unclear.
“first freedom” could imply any one of the following claims, or any combination of them:
Proposition (1) highlights the significance of sequence, indicating that the religion clauses are positioned at the forefront of the Bill of Rights This placement underscores their prominence among all guaranteed rights.
Proposition (2), historical: It invokes priority placed on a concept by a tradition.
In this case, it may refer to the high valuing of religious liberty specific to US history.
Proposition (3), conceptual: It suggests a theoretical priority of one interest over others In this case, religion by its very nature is of primary significance among state concerns
The term "religious liberty" is often used ambiguously in discussions about religion, lacking clarity in its specific meaning, which can lead to confusion Each interpretation of the term conveys distinct ideas that differ significantly Additionally, the recognition of religious liberty as the "first" freedom is frequently contested by other freedoms that seek to claim this precedence.
This chapter examines the implications of the concept of "first freedom," arguing that its application prioritizes religious interests without a solid theoretical basis In Part I, I explore the evolution of the term within US political and legal discourse, demonstrating that "first freedom" has not consistently signified conceptual precedence or been exclusively linked to religion, thereby challenging its assumed status In Part II, I critique each proposition, asserting that they fail to substantiate religion as the first freedom with significant policy implications I highlight the problematic nature of appropriating American traditions to bolster these claims and argue that the political prioritization of religious interests misrepresents religion's role alongside other ethical beliefs The ambiguity surrounding the theoretical priority of religion often serves specific interests Ultimately, I contend that the current usage of "first freedom" in public discourse is misleading and based on flawed assumptions, advocating for its abandonment in relation to religion.
History of the “First Freedom” Label
On January 6, 1941, President Franklin D Roosevelt delivered his State of the Union address to the 77th Congress amid the early stages of World War II Although the attack on Pearl Harbor would not occur for another ten months, the growing global tensions were deeply felt in the United States In this context, Roosevelt articulated his renowned "Four Freedoms" speech, outlining essential human rights that he believed should be guaranteed for all individuals.
US plan for foreign policy He painted a vision of a world characterized by “four essential human freedoms”:
The first is freedom of speech and expression—everywhere in the world.
The second is freedom of every person to worship God in his own way— everywhere in the world.
The concept of freedom from want emphasizes the need for global economic agreements that ensure every nation can provide a healthy and stable peacetime existence for its citizens.
The fourth principle is the freedom from fear, which calls for a global reduction of armaments to ensure that no nation can engage in acts of physical aggression against its neighbors anywhere in the world.
The article emphasizes that there is no hierarchy among freedoms, indicating that no specific freedom, such as the second, is deemed more important than others like the third or fourth.
Franklin D Roosevelt's "State of the Union Address" introduced the Four Freedoms, which became iconic and frequently referenced in popular culture The concept of the "first freedom," free speech, emphasizes the vital role teachers play in fostering self-expression among students Additionally, Professor E.B Dike highlights the connection between the "first" freedom and the "fourth" freedom, which is freedom from fear, illustrating how these freedoms support and reinforce each other.
The term "first freedom" gained prominence through Morris Ernst's 1946 book, "The First Freedom," where he emphasized the right to expression in print Ernst, a lawyer and co-founder of the American Civil Liberties Union, was a notable advocate for journalists' rights This concept was later expanded upon in an authorized sequel by Bryce Rucker, further exploring the significance of freedom of expression.
In 1968, Ernst emphasized that freedom of the press is the quintessential manifestation of freedom of speech Written shortly after, his work notably omits any mention of the "Four Freedoms" speech, illustrating how rapidly this phrase integrated into American vernacular.
The term "first freedom" is often associated with Roosevelt's speech, but it was not consistently used in this context Some references highlight the Establishment Clause due to its sequential placement, indicating a connection between establishment issues and religious liberty This dual focus underscores the importance of both concepts in discussions about freedom of speech and religion.
51 E.B Dike, “The First Freedom and Its Implications for Teachers and Learners,” College English 6.1(1944): 34-38.
Norman Rosenberg's analysis in "The 'Popular First Amendment' and Classical Hollywood, 1930-1960" explores the intersection of film noir and mass communication theories, highlighting how these elements shaped public discourse during that era This critical examination is featured in the compilation "Freeing the First Amendment: Critical Perspectives on Freedom of Expression," edited by David S Allen and Robert Jensen, and published by New York University Press in 1995.
53 Morris L Ernst, The First Freedom, (New York: Macmillan, 1946).
54 Bryce W Rucker, The First Freedom (Carbondale, IL: Southern Illinois University Press, 1968).
The Free Exercise Clause and the Establishment Clause are deeply interconnected, often described as "a coin with two sides." Despite their relationship, these clauses frequently create tension and are typically addressed separately In the years following their introduction, the phrase "first freedom" was occasionally reappropriated from its association with Roosevelt to highlight religious implications, often referencing the sequential order of the First Amendment guarantees Notably, in the context of challenges to strong separationist interpretations of the Establishment Clause, figures like Wilfrid Parsons in 1948 and Milton Konvitz in 1949 utilized this phrase to contest the separationist decision in Everson v Board of Education (1947) However, this usage did not achieve the same level of popularity as its application to free speech, particularly as the ideals of the "Four Freedoms" became more publicly recognized throughout the late 1940s.
In the first decade, the phrase demonstrated a flexible usage, clearly linked to sequential ordering concerning the Bill of Rights.
55 Bill Clinton, “Religious Liberty in America,” speech, Vienna, VA, U.S Society & Values 2.1(12 July 1995): 5-9.
57 Wilfrid Parsons, The First Freedom: Considerations on Church and State in the United States (New York: Declan X McMullen Co., Inc, 1948).
58 Milton R Konvitz, "Separation of Church and State: The First Freedom," Law and Contemporary
In the landmark case Everson v Board of Education (1947), the U.S Supreme Court upheld the constitutionality of a New Jersey school district's funding for transportation to parochial schools, emphasizing a clear separation between religious and state entities This decision not only reinforced the need for a distinct boundary between church and state but also introduced Thomas Jefferson's concept of a "wall of separation" into U.S case law, reflecting the court's commitment to maintaining this separation.
The term "First Freedom Speech" lacks a clear reference to logical priority, unlike its contemporary interpretation Initially, it served merely as an epithet without significant emphasis on its "first" designation This label primarily indicated that the freedom in question appeared first in a sequence, such as in the Bill of Rights or Roosevelt's "Four Freedoms" speech Notably, advocates for religious liberty did not adopt Roosevelt's term "the second freedom" as a rallying point.
Over time, some authors have redefined free speech as a dimension of liberty that underpins all others, labeling it as the "first freedom." In the context of the nineteenth-century plight of blacks, Kolchin identified emancipation as this essential freedom, arguing that without political recognition, the right to express opinions is meaningless He emphasized that lacking full political status—being regarded as only three-fifths of a person—prevents individuals from invoking any other freedoms Therefore, Kolchin posited that the freedom from slavery and inclusion in the political system together constitute the foundation of true liberty.
60 Peter Kolchin, First Freedom: The Responses of Alabama's Blacks to Emancipation and Reconstruction (Westport, CT: Greenwood Press, 1972).
In a 1997 speech at the National Press Club, Charlton Heston defended the National Rifle Association by asserting that the Second Amendment is "more essential" than the First Amendment, highlighting a unique interpretation of constitutional rights.
Analysis
The prioritization of religious liberty raises significant concerns, as it may place the interests of specific citizens above others, potentially enabling them to access more social goods, special exemptions, and privileges This focus could imply to citizens with other pressing needs that their interests are deemed less important by the state Therefore, it is essential to examine the implications of these propositions carefully.
The placement of religious guarantees at the forefront of the Bill of Rights highlights their importance, yet their position in a non-ordinal sequence does not inherently convey significant rhetorical weight For instance, if the right to "arms" were listed first alphabetically, it would not imply greater value or importance simply based on its order.
Discussions about prioritizing liberty over other values often present false dilemmas, as highlighted by Ronald Dworkin's argument for the unity of value He suggests that the perception of competing values, such as liberty and equality, arises from our efforts to categorize and classify them Therefore, questioning the superiority of one value over another is fundamentally misguided.
In "Justice for Hedgehogs," the author argues that the order of rights in the Bill of Rights does not imply their philosophical significance or priority For instance, stating that the right to "petition the government for a redress of grievances" is sixth in line lacks meaningful weight and serves merely as a rhetorical flourish The Bill of Rights should not be interpreted as ranking rights by importance; thus, labeling religious liberty as our "first freedom" due to its placement at the top holds little significance unless it conveys a deeper historical or conceptual priority.
The numerical designations, such as "first freedom" and "fourth freedom," primarily function as epithets following Roosevelt's speech, serving mainly as nicknames for identification and allusion In contemporary US politics, these phrases are often used without the original intent, with few exceptions like Clinton's speech, highlighting a shift in context and meaning.
The placement of the religion clauses at the start of the Bill of Rights was not intentional; Madison initially intended for these guarantees to be included in Article I, Section 9 of the Constitution This insight highlights the original proposed ordering of the amendments, which differs from the structure we recognize today as the "First Amendment."
The "Amendment" was the third in a series of twelve, following an article that defined the number of constituents a House member could represent and another that evolved into the Twenty-Seventh Amendment, which stipulated that any changes in compensation would take effect only after the subsequent session The "First Amendment" then followed.
After the initial two failed ratifications, the list of guarantees was reduced from twelve to ten, with each guarantee moving up two positions The states had no say in the ordering of these guarantees, as their influence was limited to their ratification decisions Therefore, the significance of Proposition (1) cannot be fully understood in isolation, and suggesting a ranked order based on its position is misleading.
Proposition (2) argues for prioritizing religion based on its historical significance in the United States, appealing to tradition While this notion resonates with many Americans, the implications are complex and not universally accepted The Constitution does not explicitly prioritize religious liberty over other interests, necessitating a broader historical context to support such a claim.
Arguments from tradition in political discourse are often more complex than they seem, as they depend on a shared understanding of what the tradition entails and its significance Such arguments imply various assumptions about the relevance of historical values in today's political landscape Specifically, they suggest that the United States has historically upheld certain values, that these values remain pertinent to current political issues, and that their application necessitates specific contemporary policy outcomes.
Recent research questions widely held assumptions about the foundational values of the American republic, suggesting that the interpretation of these traditional values is more complex than previously thought This complexity impacts the modern emphasis on religion, as reflected in the phrase "Return."
In his analysis of early U.S history, Anthony Gill argues that respect for individual liberties, particularly religious freedom, is heavily influenced by the political interests of legislators rather than ideological beliefs He notes that politicians prioritize their political survival, the need for government revenue, and economic growth when formulating laws on religious freedom Through a comparative study of various regions, Gill finds that religious liberty is upheld when political interests are threatened by significant forces; conversely, it diminishes when those pressures are absent He highlights that the value placed on religion does not always equate to practical respect for minority religious groups, which only gained full religious liberty once they attained a certain level of power Ultimately, Gill concludes that political interests and the threats to them are more reliable indicators of religious freedom than ideological commitments.
84 Anthony Gill, The Political Origins of Religious Liberty (New York: Cambridge University Press,
This project uniquely applies a rational choice model to the historical development of religious liberty, highlighting the flow of interests that reveal consistent patterns of growth It critiques ideational and structural explanations, particularly in the context of the United States during the twentieth century The degree of religious liberty in a region often correlates more with its ideological stance towards politically disadvantaged religious minorities than with genuine respect for their beliefs In practice, the acknowledgment of specific religious groups often stems from a recognition of their potential to disrupt if their demands are ignored, suggesting that power dynamics play a more significant role in shaping religious liberty than a profound respect for religion itself.
David Sehat critiques two prevalent interpretations of early US history: the conservative view that emphasizes individual religious liberty against dominant religious interests, and the liberal perspective advocating for state religious neutrality His research aligns with Gill’s findings, revealing that throughout much of early US history, minority religious groups faced oppression, often marginalized by the prevailing majority religion Individuals voicing unpopular beliefs, particularly those accused of "blasphemy," frequently faced imprisonment for their dissent Sehat argues that contemporary audiences project their biases onto early American discussions of religious freedom, misinterpreting the true significance of religious liberty guarantees Ultimately, he concludes that genuine religious freedom was typically accessible only to those with enough influence to align with the majority.
These works suggest that that the implication of the United States’ historically high value placed on religion is at best indeterminate with respect to the policies in
David Sehat's "The Myth of American Religious Freedom" critically examines the complexities surrounding the concept of religious liberty in America While the theoretical value of religious freedom is often upheld, the book highlights the darker realities of its practice, revealing inconsistencies and challenges that undermine its legitimacy.
US history challenges attempts to bring the past to bear on present circumstances as often invoked by such projects.
Perhaps most importantly, in particular regarding attempts to combine
LAW AND RELIGION: FREE EXERCISE IN U.S JURISPRUDENCE
In the preceding chapters, I have argued that the issues of religious distinctiveness and religious priority have remained severely underdeveloped
Political discourse has often misused arguments related to privilege, hindering meaningful discussions, while academic literature has largely overlooked this aspect Nevertheless, courts are frequently required to address these matters, particularly when interpreting the Free Exercise Clause.
The US Supreme Court occupies a distinctive role as its justices are required to justify their interpretations within a specific interpretive framework, rather than engaging in extensive normative debate This obligation compels them to articulate their relationship with the Constitution, ensuring that their decisions are grounded in a structured legal context.
The complex political status of religion, coupled with the challenges the Court encounters in aligning its decisions with the Constitution and historical jurisprudence, necessitates a systematic assessment of U.S free exercise jurisprudence in relation to religion as a political category.
This chapter evaluates the United States judiciary's practical approach to the Free Exercise Clause, highlighting the limitations imposed by its founding document and the absence of open normative debate By examining key decision-makers, it aims to illuminate the broader theoretical discussions previously addressed While the evolution of the Court's stance on free exercise issues is well-documented, this chapter adds a vital perspective by exploring whether the Court utilizes religion as a political category for special treatment, its evolving interpretation of religion, and the distinctions it makes between religious beliefs and other forms The analysis focuses on the implications of these considerations in the context of whether the Free Exercise Clause requires the state to provide exemptions for religious individuals, ultimately seeking to classify how the Court has historically prioritized religion as a political category within the overarching theoretical framework.
108 See, e.g.: Philip Hamburger, “A Constitutional Right of Religious Exemption: An Historical
In the George Washington Law Review, the article discusses various perspectives on the historical understanding of religious accommodation, referencing McConnell's works and Muñoz's examination of the Free Exercise Clause's original meaning as evidenced by the First Congress.
Policy 31.3(2008): 1083-1120; Steven C Seeger, “Restoring Rights to Rites: The Religious Motivation
The article discusses significant legal analyses related to religious freedom, including "Test and the Religious Freedom Restoration Act" published in the Michigan Law Review, and Ellis M West's examination of religion-based exemptions for conscientious objectors in early America, featured in the Journal of Law and Religion It also reflects on the implications of these discussions twenty years after their initial exploration.
Employment Division v Smith: Assessing the Twentieth Century’s Landmark Case On the Free Exercise of Religion and How It Changed History, a special issue of the Cardozo Law Review 32(2011).
This article explores the evolution of the Court's relationship with the concept of religion through three key phases Initially, it examines early free exercise cases that established a belief-action dichotomy, shaping nearly a century of legal precedent Next, it discusses the expansion of the Free Exercise Clause, emphasizing the need for government exemptions for religious individuals, reflecting a growing recognition of religion's unique status Finally, it analyzes the Supreme Court's recent shift back to a belief-action distinction in free exercise cases The focus is not on a comprehensive overview but rather on pivotal cases that illuminate the intersection of religion and politics.
Nearly a century after the First Amendment was enacted, the US Supreme Court addressed a Free Exercise Clause case for the first time in 1878 with Reynolds v United States, marking the absence of an authoritative interpretation regarding the status of religion and the scope of religious protections in the Constitution until that point.
In 1862, the Morrill Anti-Bigamy Act established a federal prohibition on polygamy, significantly impacting the practices of the Mormon church In response, the church initiated a test case to contest the constitutionality of this legislation.
The article is organized into three sections that correspond to the historical periods before, during, and after the Court's interpretation of the Free Exercise Clause, which mandated religious exemptions This structure is a common method used in legal literature to delineate these distinct eras.
In the landmark case 110 U.S 145 (1878), the First Amendment was put to the test when George Reynolds, a secretary to Brigham Young, challenged the legality of religious beliefs as a defense for criminal acts This case marked the first occasion for the court to examine whether religious belief could justify actions deemed illegal by the law Ultimately, the Mormon church lost the case in all federal court levels.
Reynolds requested the jury to be instructed to absolve him of guilt if it could be demonstrated that he acted in accordance with his religious beliefs He sought to have the court recognize the protection of religious freedom as a valid reason to exempt him from punishment under laws that contradicted his religious motivations However, the trial court denied this request, asserting that Reynolds's appeal to religious motivation did not warrant exemption from legal accountability.
In cases where a defendant, influenced by a strong religious belief, deliberately marries a second time while still having a first wife, the absence of conscious evil intent does not absolve them of criminal liability The law firmly implies that criminal intent exists, regardless of the individual's understanding of their actions as a crime.
The trial court determined that engaging in an activity prohibited by law inherently carries criminal intent, overshadowing any significant religious motivations that may be present.
111 Leonard J Arrington and Davis Bitton, The Mormon Experience: A History of the Latter-Day Saints (Chicago: University of Illinois Press, 1992), 180.
The Supreme Court majority opinion highlights that the law delineates the boundaries of acceptable citizen activity, indicating that constitutional rights are not an absolute shield for individuals Instead, the permissible space for religious expression is defined within the strict parameters established by the law.
The Supreme Court, in turn, employed a similar approach, invoking the support of James Madison and Thomas Jefferson about the appropriate range of legislative power:
ON TRANSFORMATIVE POLITICAL LIBERALISM’S
ON TRANSFORMATIVE POLITICAL LIBERALISM’S MODEL OF RELIGIOUS LIBERTY: A POLITICAL THEORY CASE STUDY OF DEFENDING RELIGIOUS INTERESTS WITHOUT A PRIVILEGED
In addressing the concerns raised in Chapters II and III regarding the classification of religion within the political sphere, proponents of prioritizing religious interests may worry that such interests could be vulnerable to state scrutiny and intervention Without tailored protections in place, there is a legitimate fear that the state could impose undue burdens on religious practices and beliefs.
Religion is not inherently more vulnerable to incidental costs than other beliefs, as these costs can arise unintentionally from policy decisions Exemptions serve as a mechanism for the state to mitigate excessive burdens on ethical beliefs Furthermore, there are already ample conceptual resources within the liberal democratic framework to safeguard religion from intentional attacks, eliminating the need for a special status.
This chapter presents a political theory case study illustrating that advocating for religious interests can be achieved without designating religion as a special category It argues that the rights of religious believers can be defended using generalizable concepts that protect the beliefs of all citizens The analysis focuses on transformative political liberalism's model of religious liberty, which challenges the special status of religion as an unjustified construct Transformative political liberals assert that this special status is vulnerable to direct critique, extending the argument beyond the initial premise.
The state plays a crucial role in influencing the beliefs of its citizens, utilizing its non-coercive powers to transform illiberal ideologies into those that align more closely with the principles of a liberal state.
In this chapter, I present two key arguments: first, transformative political liberals struggle to uphold their identity as political liberals while advocating for significant changes in state activities Second, in evaluating the integrity of political liberalism, any transformation of citizens within a liberal state should be assessed based on whether the state intentionally targeted its citizens' beliefs, rather than merely considering whether coercive methods were employed.
159 Consider, for example, Corey Brettschneider, "A Transformative Theory of Religious Freedom: Promoting the Reasons for Rights," Political Theory 38.2(2010): 187-213, 188.
Liberal theorists in the canonical tradition emphasize statecraft that begins with individuals as the fundamental unit of analysis, viewing society and the state as composed of individuals with distinct interests A key objective for these theorists is to foster citizens who are self-directed and aware of their own interests This individualism is reflected in concepts such as Kant's majority principle, Mill's focus on personal utility, and Locke's reasoning In contemporary discourse, these ideas manifest through themes like self-determination, free speech, and the marketplace of ideas.
John Rawls characterized his approach to liberalism as "comprehensive," offering a detailed vision of the moral and rational individual In addressing the complexities of pluralism, Rawls aimed to create a framework that refrained from imposing specific values on citizens As a pivotal figure in twentieth-century political theory, Rawls serves as a reference point for both supporters and critics While opinions vary on the success of his project, one of Rawls' key contributions lies in his clear articulation of the principles underlying a just society.
Immanuel Kant, in his seminal work "An Answer to the Question: What Is Enlightenment?", emphasizes the importance of reason and autonomy in achieving enlightenment John Stuart Mill's "Utilitarianism" explores the principle of utility, advocating for actions that promote the greatest happiness for the greatest number Meanwhile, John Locke's "Of the Conduct of the Understanding" delves into the processes of human understanding and the necessity of critical thinking Together, these philosophical texts highlight the significance of rational thought, ethical considerations, and the development of personal understanding in the pursuit of knowledge and moral clarity.
161 John Rawls, “Justice as Fairness: Political not Metaphysical,” Philosophy and Public Affairs
In this article, I focus on transformative liberals and their interpretation of Rawls' philosophy, particularly in relation to their goals rather than the accuracy of their understanding of his theories While they draw inspiration from Rawls, I contend that their project can be evaluated based on their specific objectives Their aim is to develop a political system that is "political not metaphysical," emphasizing the creation of a state that reduces the substantive criteria defining its citizens.
Liberalism, whether in its comprehensive or political form, fundamentally assumes that citizens possess an inherent capacity for independence, which is essential to political engagement It embodies a belief in individuals' ability to understand and advocate for their own interests, fostering citizens who can effectively articulate and pursue those interests, albeit with varying degrees of success.
Despite individual faith, a state's collective interests often overshadow personal ones, creating a persistent tension between protecting individual rights and maintaining order through monopolized force This conflict highlights the ongoing struggle between collectivist and individualist political theories, illustrating the inevitable clashes between these two fundamental interests.
Balancing individual rights with state interests is a complex challenge The state must demonstrate a more significant interest to override individual rights, typically through concepts like public safety and order preservation In clear cases, such as preventing large riots or trespassers, the state can justify its interventions on various public grounds While debates may arise regarding the extent of the state's interest in specific situations and the ethical implications of maintaining order, the general framework is established: the state permits individual actions until they threaten the safety and well-being of the broader community.
The debate surrounding public safety is relatively straightforward, despite the contentious nature of specific interactions between individuals and the state However, the discussion becomes complex when examining the state's authority to regulate beliefs, which are integral to the liberal framework Liberalism generally aims to enhance citizen independence and the exploration of personal thought While the relationship between liberal states and illiberal beliefs has been a topic of contention, there is a notable resistance within liberal thought against the state's coercive imposition of beliefs or values on its citizens.
The harm principle, articulated by John Stuart Mill in his work "On Liberty," underscores a fundamental aspect of liberalism, emphasizing the tension between state interests and individual rights This raises the critical question of who defines the interests at stake and where the boundaries are set Ultimately, this dynamic reflects the state's objective to navigate the balance between protecting societal interests and upholding citizens' rights, a concept notably articulated in Justice Blackmun’s opinion in Roe v Wade.
Thomas Hobbes, often labeled a "protoliberal," presents a nuanced perspective by advocating for an absolute transfer of power to the state while recognizing a limited private sphere His version of individualism aligns closely with John Locke's, though Hobbes emphasizes a more instrumentally rational approach aimed at satisfying human passions Notably, Hobbes argues that the specific content of these passions is less significant than the shared experience of pursuing desires, highlighting the importance of reason over the objects of its focus.
CONCLUSION: RELIGION AND DEMOCRATIC PROCESS
The debate over the political significance of religion often stems from a narrow perspective that assumes religion's uniqueness without first examining its role within the broader political system This limited view elevates religion to a special status, overlooking its interconnectedness with other societal elements and leading to misconceptions about the law's function Such arguments mistakenly assert that isolating religion into a distinct category offers the best protection, yet this approach may ultimately undermine its integrity A more effective understanding of religion within a liberal democratic framework reveals that individuals motivated by religious beliefs share commonalities with those driven by secular ethical principles, highlighting the need for a more inclusive perspective.
Advocates for religious distinctiveness frequently misinterpret the essence of religion, which is compounded by their misunderstanding of the relevant policy areas This is particularly evident in discussions about exemptions, where there is often a significant lack of awareness regarding the implications of the demands placed on religion.
In conclusion, I present two recent examples—one national and one local—that illustrate how a narrow focus on religious priorities can lead to political chaos The first example involves the push for religious exemptions related to the Patient Protection and Affordable Care Act The second example examines a proposed policy at Texas A&M University, which serves as a microcosm of the broader issues reflected on the national stage.
Both events discussed in this chapter highlight the practical challenges associated with demands for religious exemptions, rooted in deeper theoretical issues Uncritical beliefs in the precedence of religion often result in unrealistic demands from religious claimants, which may not be feasible for implementation, even if a government entity wished to accommodate them The notion of religious uniqueness contributes to these impractical demands, underscoring the complexities of balancing religious claims with practical governance.
These examples may seem like poorly executed arguments for religious distinctiveness; however, they actually reflect a common logic used in public discourse to advocate for unique treatment.
A NATIONAL EXAMPLE: EXEMPTIONS FROM HEALTH CARE
The Green family of Oklahoma started, privately owns, and continues to run two highly successful business chains: the arts and crafts store Hobby Lobby and the
Mardel, a Christian bookstore owned by the Green family, operates under the principles of their faith The Tenth Circuit Court recognizes that the Greens actively practice their religion through various means, reflecting their commitment to integrating their beliefs into their business practices.
The businesses actively embody their owners' religious beliefs by providing chaplains for employees, donating millions to ministries, and purchasing numerous religious advertisements during Christmas and Easter They also carefully monitor their merchandise to prevent support for activities deemed immoral These efforts illustrate a strong commitment to aligning business practices with the owners' faith-based values.
In the wake of the Patient Protection and Affordable Care Act of 2010, however, the companies are required to provide their employees with specific types of health care:
Employment-based group health plans governed by the Employee Retirement Income Security Act (ERISA) are mandated to cover specific preventive health services as outlined in 42 U.S.C § 300gg-13 and 29 U.S.C § 1185d The Green family expressed concerns regarding the inclusion of certain drugs classified as abortion-inducing among these required preventive services, which conflicts with their religious beliefs and moral convictions.
201 Hobby Lobby Stores v Sebelius, Appellants’ Motion for Injunction Pending Appeal, 10 th Cir 12-6294 (2012).
In the case of Hobby Lobby Stores v Sebelius, the court addressed the Greens' concerns regarding the Affordable Care Act (ACA) and its implications for their religious beliefs The court highlighted that the FDA has approved various contraceptive methods, including certain intrauterine devices (IUDs) and emergency contraceptives like Plan B and Ella, which may prevent the implantation of a fertilized egg The Greens argue that complying with the ACA would force them to act against their religious convictions, risking substantial daily fines As owners of Hobby Lobby and Mardel, they are suing the federal government, invoking the First Amendment's Free Exercise Clause and the Religious Freedom Restoration Act of 1993 On June 27, 2013, the Tenth Circuit Court of Appeals granted the Greens an injunction, protecting them from significant financial penalties while their lawsuit is ongoing.
The court also used language that was strongly indicative of support for the case’s future The court stated:
Hobby Lobby and Mardel advocate for their religious beliefs, paralleling the Supreme Court's Citizens United decision, which affirmed that for-profit corporations possess a First Amendment right to political expression Consequently, this reasoning suggests that these companies should similarly be entitled to express their religious views.
The Religious Freedom Restoration Act (RFRA) remains applicable in federal proceedings, as established in Boerne v Flores This case specifically challenged aspects of the RFRA that sought to dictate the Supreme Court's interpretation of the First Amendment, insisting on the application of the Sherbert v Verner standard.
205 Kristen Wyatt, “Hobby Lobby Won’t Have to Pay Millions in Fines as It Challenges Obamacare Birth Control Mandate,” web, Huffington Post, 27 June 2013, www.huffingtonpost.com.
Court would recognize constitutional protection for a corporation’s political expression but not its religious expression 207
The court largely supports the idea that, following the Citizens United standard, the Green family businesses should be able to utilize additional First Amendment protections, including free exercise rights However, dissenting opinions, particularly that of Briscoe, express skepticism regarding this interpretation.
In light of the normative framework established in previous chapters, a nationally established health standard should take precedence over certain free exercise claims This consideration extends to various belief systems that could seek exemptions from health standards, such as Jehovah's Witnesses' rejection of blood transfusions, Scientologists' opposition to pharmacological treatments, and Christian Scientists' preference for prayer over medical intervention Additionally, the debate often includes the stance of many Christians, including Catholics, who oppose contraception, which many view as essential to healthcare Allowing exemptions for these beliefs could undermine the established health standards, limiting access to necessary healthcare for employees and potentially leading to broader issues of compliance and consistency.
207 Hobby Lobby Stores v Sebelius, Court’s Response to Motion for Injunction Pending Appeal, 12-6294
208 Even if one engaged in a debate about the status of these beliefs as “religions,” they would still count under the approach established by this project as a strong ethical system.
Governments are responsible for maintaining a minimum standard of health care that ensures access for all citizens This standard reflects the state's view on essential services that should be universally available Instead of seeking exemptions from specific health care components, individuals opposed to certain aspects, such as abortion-inducing drugs, should engage in democratic discussions to advocate for their exclusion from the national health care standard.
I focus on the procedural aspects of health care rather than an objective standard, acknowledging the potential for various normative challenges It is through the democratic process that a nation establishes its own standards of health and wellbeing, regardless of their quality My emphasis is not on debating what should be considered health care, but rather on the decision-making processes that shape these definitions.