Date and Time:
Friday, February 28, 2014 – Saturday, March 1, 2014
Is Religion Outdated (as a Constitutional Category)?
The First Amendment would appear to single out “religion” (along with speech, press, and association) for special constitutional treatment. This designation is reflected in constitutional doctrine and decisions: religion has often been treated as distinctive in ways that may be sometimes burdensome to or restrictive of religion (under the Establishment Clause) and sometimes beneficial to or protective of it (under the free exercise clause).
Increasingly, however, scholars question this special treatment—or at least the special treatment that is beneficial to religion. So long as religious individuals and institutions enjoy the same freedoms of speech, association, due process, etc. that other individuals and institutions receive, why is there any need to single out “religion” for special protection? Such protection may be viewed as a sort of “special interest” constitutionalism. A similar stance was discernible in the Obama Administration’s position in the recent "ministerial exception” case.
This conference will focus on this issue. Is the Constitution’s apparent commitment to special treatment for religion merely a reflection of historical contingencies of the early Republic, or can good justifications be given for continuing to treat religion as a distinctive constitutional concern? If the commitment to special protection for religion is discarded, should the special constraints on governmental aid to religion, or on governmental expressions or endorsements of religion, be relinquished as well? In short, should religion continue to be regarded as a special constitutional category?