Document Type
Article
Publication Date
Winter 2024
Publication Citation
99 Indiana Law Journal 515 (2024)
Abstract
It is a volatile time in the jurisprudence of the First Amendment’s Religion Clauses. In recent terms, the U.S. Supreme Court has revisited many key Church-State and free exercise questions, and the Justices seem poised to revisit several more. Each of these fundamental questions presupposes an antecedent question: what, for constitutional purposes, is religion itself? The Court has never answered this question consistently or systematically. But, at least in the case of constitutionally mandated religious exemptions, a clear pattern emerges over time: the broader the Court’s definition of religion, the weaker its regime of religious exemptions. The reverse has also been true: when the Court has moved toward more robust accommodations, it has simultaneously narrowed its definition of religion. This Article traces this pattern across time in the United States, as well as in several foreign jurisdictions. The upshot is that, over time and across jurisdictions, the antecedent question of religion’s definition is inescapably linked to the substantive strength of protections for religious exercise. In a time of rapid doctrinal flux, courts and commentators alike should attend more consciously to this strong link.
Recommended Citation
Collings, Justin and Bryner, Anna
(2024)
"Defining Religion and Accommodating Religious Exercise,"
Indiana Law Journal: Vol. 99:
Iss.
2, Article 3.
Available at:
https://www.repository.law.indiana.edu/ilj/vol99/iss2/3