Saturday, March 09, 2013

Religion’s specialized specialness

Andrew Koppelman

The basic elements of contemporary Religion Clauses doctrine have hidden in plain sight. American law treats religion as a distinctive human good but protects it from political manipulation by denying the state the power to take sides on any theological question. This approach entails rules of disestablishment, such as the secular purpose requirement, which prevent the government from using coercive laws to proclaim religious truth. It also entails that it is permissible for the legislature to recognize religion’s value by accommodating it. American law insists (with an important exception) on neutrality among religions. Its understanding of “religion” is calculatedly vague, allowing it to accommodate claims of conscience that sufficiently resemble religious claims. Because scholars regard existing law with contempt, they have spent most of their efforts engaging with each other. An alternate universe of theoretical possibilities has developed, a battleground of competing visions of the Religion Clauses. In this world, American law sometimes goes unnoticed altogether.

Micah Schwartzman is one of our finest young scholars of law and religion and has brought sophisticated philosophical analysis to some perennial problems. His analytical skills are conspicuously on display in What If Religion is Not Special?, recently published in the University of Chicago Law Review. He carefully anatomizes a number of competing positions in the law review literature and shows the weaknesses of each, leaving himself with, as he puts it, an “intellectual ache”: it appears to him that the commitments of our constitutional regime cannot be justified. His article is a valuable contribution. But it can mislead the reader because, as in so much literature in this field, the actual law of the United States escapes his vision.

I elaborate this critique in a new article in the online edition of the Law Review, available here.