E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
American
law has long accorded religion special treatment. Quaker and Mennonite
objections to military service have been accommodated since colonial
times. Sacramental wine was permitted during Prohibition. Today the
Catholic Church is allowed to deny ordination to women despite
antidiscrimination laws. Jewish and Muslim prisoners are entitled to
Kosher or halal food.
This
tradition has become intensely controversial of late, reflecting a
growing scholarly consensus that special treatment of religion cannot be
justified. While some scholars would rule out all legal
accommodation, the more common view would allow it in certain cases,
but under another description. It is morally arbitrary to single out
“religion,” the argument goes, and so a different legal category, such
as “conscience,” should be used. A second and related objection is that
the bounds of “religion” are so indeterminate that the term is
meaningless—a term that European colonizers, for instance, used
willy-nilly to describe whatever local practices somehow reminded them
of Christianity.
The singling out of religion for special legal treatment is nonetheless appropriate, and precisely because
religion doesn’t correspond to any narrow category of morally salient
thought or conduct; as such it is a concept flexible enough to be
accommodated legally while keeping the state neutral about theological
questions. Other, more specific categories are either too sectarian to
be politically usable, too underinclusive, or too vague to be
administrable.
I develop these claims in the new issue of Commonweal magazine, here.