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Weinberger on Defining Religion & the Establishment Clause

By Lawrence Solum

Lael Daniel Weinberger has posted Religion Undefined: Competing Frameworks for Understanding 'Religion' in the Establishment Clause (University of Detroit Mercy Law Review, Vol. 86, No. 4, 2009) on SSRN. Here is the aabstract:

In the midst of all the case law and scholarship on church and state issues, the term "religion" in the Establishment Clause of the U.S. Constitution remains undefined. This article will not start with individual cases and attempt to distill definitions from them. Rather, it will turn to another arena for perspective: the intellectual history of American Christianity. Within the last century, two different frameworks for using the terms "religion" and "religious" have emerged in American Christianity. Understanding these two frameworks gives a fresh perspective on possible meanings for the word "religion" generally, and also points towards some surprising conclusions as to how the modern era of Establishment Clause jurisprudence has been operating on a philosophically inconsistent understanding of religion.

The two frameworks are presented in the first part of this article. The one I refer to as a "dualis" approach, and the other, a "worldview" approach. Part II examines the question of which of these views is more compatible with the Establishment Clause. I suggest that if the issue is reduced to semantics, it will be possible to have the best of both worlds: an Establishment Clause that makes sense while still leaving room for the important philosophical and theological insights of the alternative framework. Part III turns from the theoretical to the practical, and examines how modern Establishment Clause jurisprudence has fit into our conceptual schemes.

Full post as published by Legal Theory Blog on December 01, 2009 (boomark / email).