Professor Steven D. Smith of the University of San Diego School of Law has posted, Freedom of Religion or Freedom of the Church?. In it, he argues that the modern jurisprudence of the religion clauses is so untidy because it focuses on an amorphous concept of “religion” when instead it should focus on the more discrete concept of “the church.” See the abstract below:
This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church. Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of “religion,” or that it creates or accepts a special category of “religion” that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church – a campaign devoted to maintaining the church as a jurisdiction independent of the state-developed into a commitment to freedom of conscience (conscience being the “inner church,” so to speak). The section then relates how this commitment to freedom of the church – both the institutional church and the inner church – came to be reconceived as a more generic commitment to freedom of religion, with the unfortunate consequences considered in Part 1.
—DRS, CLR Fellow