This chapter investigates whether there is a general right to conscientious exemption in US law. The chapter concludes that there is, albeit its scope varies geographically. There are at least five rules of law which ground the right. These are: (1) the Free Exercise Clause of the First Amendment under federal constitutional law as interpreted by the USSC in Smith (albeit this is now very narrow), and the Free Exercise clauses of some state constitutions which did not interpret their own constitutions according to Smith; (2) The Religious Freedom Restoration Act (RFRA) which applies to the federal government and similar state legislation that applies in the states which have enacted them; (3) the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) which applies mainly to state governments in the context of land regulation, zoning laws and prisoners; (4) Title VII of the Civil Rights Act of 1964 (and similar state level legislation) which requires certain categories of employers to accommodate the religious beliefs of their employees in performing their employment duties; and (5) the constitutional requirements of Church Autonomy.

This chapter examines the U.S. Supreme Court’s landmark First Amendment religious liberty cases to show how the judiciary has come to terms with the disputes that arise over religious liberty. The religion clauses are often seen as upholding the concept of individual rights and defending religious liberty against religious majoritarianism. However, the U.S. Supreme Court’s interpretation of the religion clauses often belies this perception. This chapter demonstrates that the religion clauses largely epitomize majoritarianism. That is, rather than protecting religious minorities, the scope and protection of the religion clauses reflect both the trajectory of the Supreme Court’s broader constitutional rights jurisprudence, as well as the wider political landscape, both as it relates to judicial politics as well as contemporary social discourse.

Due in part to the influence of Michael McConnell, free exercise exemptionism is generally thought to be compatible with, if not dictated by, the founders’ church-state political philosophy. This article rejects that position, arguing instead that America’s constitutional tradition offers two distinct conceptions of religious liberty: the founders’ natural rights free exercise and modern moral autonomy exemptionism. The chapter aims to distinguish these two approaches by clarifying how they are grounded upon divergent philosophical understandings of human freedom and by explaining how they advance different views of what religious liberty is, how it is threatened, and, accordingly, how it is best protected. The article also attempts to demonstrate how our modern approach expands the protection for religious liberty in some ways but limits it in others.

The sixteen words on religion in the First Amendment have generated voluminous and vociferous scholarly interpretations. These controversies strike at the heart of the role of religion in American public life. How are we to decide which interpretation of the First Amendment is correct? Answers to this question have been laden with presuppositions. This chapter is an interdisciplinary analysis of recent historical, political, legal, and philosophical writing on the First Amendment to illustrate how key presuppositions inform the approach to arguments about the meaning, scope, and intent of the First Amendment. The chapter will first outline the contextual and philosophical problems of interpreting the First Amendment. It will then evaluate the providentialist, secular, and pragmatic presuppositions that have guided scholarly interpretations. Ultimately, the chapter will argue that there has not been a single understanding of the relationship between church and state in America, but that investigating these presuppositions can help us better appreciate the dynamic nature of religion, politics, and jurisprudence in America.

This chapter investigates the two non-establishment clauses in the U.S. Constitution: the no-religious-test clause in Article VI, and the no-establishment-of-religion clause in the First Amendment. Since religious tests were the clearest manifestation of state sovereignty over religion, their prohibition in Article VI elided any notion of a “Church of the United States” even before the First Amendment. The federal oath-Congress’s first act-no longer required a denial of Catholic beliefs as previous oaths had, yet loyalty remained a prerequisite to securing religious liberty. The chapter then contends that the First Amendment establishment clause was based on what Congress had stated in 1783: that powers in “purely spiritual” matters were “reserved to the several States, individually.” Congress had declared this principle in response to the Holy See’s request for it to approve a Catholic bishop, and had thus renounced one of the rights of patronage that governments traditionally held over ecclesiastical affairs. This context adds to the original meaning of the establishment clause, for simply prohibiting a national church did not necessarily forbid this right of patronage.

This essay argues that religion is a distinctive form of human activity, and offers a philosophical account of what religion fundamentally is (and what it is not), within the context of the free exercise clause of the First Amendment. The first section promotes religion as an action-theoretic concept. The second section presents the claim that atheism can be regarded as a religion. It rejects this claim on the basis that religion cannot be defined as a set of propositional beliefs concerning metaphysics and morality. The third section defends a paradigmatic account of religion as a kind of activity ordered to a concept of transcendence or superior nature, and argues that morally excellent human actions can be identified as religious, but only in a secondary or derivative way. The final section contends with the problem of including act-omissions as instantiations of religious exercise, and proposes a solution with reference to recent arguments implicating two-way powers.

This chapter introduces the major philosophical concepts, historical interpretations, and political, legal, and economic issues concerning the First Amendment, church-state relations, and religious liberty in the United States. It will address philosophical concepts such as natural religion, the nature of religious exercise, and the special status of religious liberty in the philosophy of law. It will then present historical developments from colonial America to modern Supreme Court cases concerning church establishments, religious toleration, religious dissent and minorities, religious tests, and the historical and jurisprudential meanings of “free exercise” and “establishment.” It will conclude with reflections on natural rights and religious liberty exemptions, originalist constitutional interpretations, corporate religious liberty, the economic origins of religious liberty, the separation of church and state, and contemporary challenges to religious liberty.

Although recent U.S. Supreme Court decisions respecting corporate religious liberty have been heavily criticized, this chapter argues that corporate religious freedom is not the novel or radical development that critics decry. What is new, rather, is an increasingly intense opposition to any special legal accommodation of religious commitments. Indeed, upon close examination, the familiar criticisms do not for the most part actually turn on anything peculiar to the corporate form. They are better understood as manifestations of an emerging, deep-seated opposition to the traditional American commitment to religious freedom as a distinctive legal right. And this opposition is itself part of a broader effort to repudiate the vestiges of an older religious or biblical conception of American community, as described in Robert Bellah’s influential scholarship on American “civil religion,” in favor of a different conception that we might describe as “secular” or “progressive.”

This chapter distinguishes and explores two historical justifications for the separation of church and state in America. The first separation is a specifically Christian piece of political theology, in large part for the benefit of a Christian civil society. The second separation is a specifically secular position for the benefit of a liberal society that wishes to divest from and repudiate Christianity. This chapter then describes the allure of equality and nondiscrimination as church-state ideals, their ascendancy in late twentieth-century constitutional law, and the sense in which they are believed to have supplanted the first version of separation. This chapter argues that neither equality nor nondiscrimination delivers a valueless perspective on the social and political worth of Christianity. The second separation holds that Christianity is an irrelevant, or even an obnoxious and illegitimate, influence in the making of laws or the structuring of the cultural and political realms. In a society in which Christianity has had such overwhelming predominance, insisting on equality is tantamount to squelching it and is nothing less than an expression of the second separation.

Justice Antonin Scalia was a towering figure in jurisprudence and legal culture. Among other things, he was the most eloquent and prominent proponent of the idea that the Constitution should be interpreted according to its “original meaning.” Scalia was also a devout Christian: a traditional Catholic who set forth his Christian beliefs with honesty, pungency, and wit. He frequently told the story how during his college oral examinations, he was asked the most significant event in history; he answered, the Battle of Waterloo, whereupon the professor “shook his head sadly and said, ‘No, Mr. Scalia. The Incarnation.’” The lesson for the young Scalia: “[Never] separate your religious life from your intellectual life.” Yet this most publicly devout justice also frequently made clear that his beliefs had nothing to do with his judicial role. His job, he emphasized, was merely to apply the meaning of the text without regard to policy considerations or moral values, including religious values. “I’m a worldly judge,” he often said. This presents a puzzle: did Scalia end up separating his religious life from his jurisprudence, the core of his intellectual life? Or was he still somehow a distinctively Christian judge? The solution, I suggest, lies in distinguishing his first-order legal conclusions, which were driven largely (although not solely) by his positivist judicial method, from his second-order choice of that method, which may well have reflected aspects of his personal outlook on the world, including his faith.