Law and Religion

The Supreme Court’s jurisprudence on religion has undergone a dramatic transformation in recent years, dramatically accelerating over the past decade. This transformation affects both the Constitutional strictures of the First Amendment and a variety of statutory provisions, such as the Religious Freedom Restoration Act. The Court has adopted new understandings of the “free exercise” of religion, while limiting the scope of the prohibition on the “establishment of religion.” We will study this transformation by situating it in relation to the very different landmark decisions of the mid- to late-20th century. In so doing, we will explore the ways that legal decisions construct the very category of “religion” in setting the boundaries between secular law and religious life. Is “religion,” as a separate sphere of society, a cultural and historically specific construct? Are there universally recognized criteria for “religion,” such as an organized community or a belief in God? Should religious communities be exempt from some secular legal regimes, such as anti-discrimination law? We will draw on perspectives from political theory and theology to enrich our understanding of the legal materials.