Nelson Tebbe (Brooklyn Law School) has posted his excellent piece, Nonbelievers (forthcoming Virginia L. Rev.).  I’ve had a chance to see this piece develop — it’s a nuanced and careful take on the special issues involving nonbelievers and religious liberty.  Along the way, Nelson’s erudition in the area of religious studies also shines through, in his discussion of the definition of religion issue and his adoption of a “polyvalent” approach.  The abstract is below.  — MOD

How should courts handle nonbelievers who bring religious freedom claims? Although this question is easy to grasp, it presents a genuine puzzle because the religion clauses of the Constitution, along with many contemporary statutes, protect only religion by their terms. From time to time, judges and lawyers have therefore struggled with the place of nonbelievers in the American scheme of religious freedom. Today, this problem is gaining prominence because of nonbelievers’ rising visibility. New lines of social conflict are forming around them, generating disputes that have already gone legal. In this Article, I argue that no wholesale response will do. Nonbelievers and believers should receive comparable protection in some situations but not in others. The method I apply is polyvalent—it seeks to capture the full range of values that should matter, recognizing that the mix of relevant concerns may differ from doctrine to doctrine. Two arguments push against my piecemeal approach, however. First, scholars argue that the term religion should simply be defined to include (or exclude) nonbelievers in advance and for all purposes. Second, leading thinkers have recently criticized the special place of religion in American law. For them, even if nonbelief is not a religion, it should always be treated with similar solicitude. Rejecting both of these positions, I contend that definitional approaches are unlikely to be helpful, and that careful judges will determine the specialness of religion in a variegated way. Applying this method to several doctrines—including antidiscrimination, free exercise exemptions, church autonomy, government endorsement, and public funding—I propose protecting nonbelievers only in some of these areas. In conclusion, I suggest that adjudication of religious freedom claims generally is neither impossible nor senseless, despite the fears of some.

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