A Defining Faith: "True" Religion and the Establishment Clause
This essay examines two trends in modern church-state law. Parts I and II review the history of the Supreme Court's Establishment Clause cases. It is a history that can best be understood as a series of jurisprudential maneuvers by which the Court has sought to make room for religion in civic life. The accommodations made by the Court to religious belief and conduct have, in effect, allowed for discrimination against non-religion, and have edged the court toward a nonpreferentialist perspective on disestablishment. But the Court’s accommodating attitude amounts to more than a preference for the many varieties of religious experience. That preference is itself premised on the privileged position of what might be called normative religion. By adopting a majoritarian approach to church-state controversies, the Court has put the power, prestige, and financial support of the government behind a traditional religious consensus--behind, in other words, the conventional theism that dominates our cultural heritage. Surprisingly, this religious "settlement" may be threatened not by separationist sentiment, but by the Court's own reluctance to define religion in narrow terms. In Part III of this essay, I consider the expansive approach the Court has taken to the problem of defining religion. Taken together, these two trends pose a significant problem for the Court's accommodationist strategy: by expanding the constitutional definition of religion to include minority faiths, the Court risks undermining the normative religious consensus it has sought to encourage. In Part IV, I explore this threat to the Court's increasingly nonpreferentialist perspective. The courts have struggled with the delicate question of defining religion in a bewildering variety of Establishment Clause cases. The significance of the definitional question, however, goes beyond the specifics of any one case. As the Supreme Court continues to retreat from a position of separationism, the pressure to define what is religion--that is, what faith is "in" (and entitled to government support) and what faith is "out"--will inevitably increase. A broad definition of religion will mean a wide variety of claimants for government support, including some whose beliefs will not be tolerable to mainstream believers. When witches and Satanists are entitled to the same privileges that Christians receive from the government, the political premises of nonpreferentialism would seem to be poorly served. And, in a strange twist of constitutional history, the very principles by which nonpreferentialists have sought to support religious practice may prompt a reconsideration of the virtue of high and impregnable walls.
Constitutional Law | Religion Law
Date of this Version
Jeffrey Shulman, "A Defining Faith: "True" Religion and the Establishment Clause" (November 10, 2003). bepress Legal Series. bepress Legal Series.Working Paper 100.