The Distinctiveness of Religion in American Law : Rethinking Religion Clause Jurisprudence

With the controversial 2014 Supreme Court ruling in Burwell v. Hobby Lobby, traditional religious protections under the First Amendment have been questioned by the public. This book provides a persuasive defense of religious protections by drawing on founding era thought as well as theology, philosophy of religion, and comparative religion.

In recent decades, religion's traditional distinctiveness under the First Amendment has been challenged by courts and scholars. As America grows more secular and as religious and nonreligious convictions are increasingly seen as interchangeable, many have questioned whether special treatment is still fair. In its recent decisions, the Supreme Court has made clear that religion will continue to be treated differently, but we lack a persuasive account of religion's uniqueness that can justify this difference. This book aims to develop such an account. Drawing on founding era thought illumined by theology, philosophy of religion, and comparative religion, it describes what is at stake in our tradition of religious freedom in a way that can be appreciated by the religious and nonreligious alike. From this account, it develops a new framework for religion clause decision making and explains the implications of this framework for current controversies regarding protections for religious conscience.