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.