Is Religion Outdated (as a Constitutional Category)?
So these are some reasons why political theory might dictate that religious dissenters be accommodated even though, by enacting the laws to which the dissenters object, government indicates that it believes the dissenters err. If political theory justifies religious accommodations, however, then when government acts on the basis of political theory, is it establishing a religion? Bill argues, in support of Seeger, that claims of conscience derived from moral theory can qualify for accommodations under the Free Exercise Clause. But the two religion clauses in the Constitution use the noun “religion” only once. So if claims of conscience derived from a moral theory can qualify for exemptions under the Free Exercise clause, then when government acts to implement a moral theory and its commands, why is it not establishing a religion? For if I have a deep seated belief that some civil policy is wrong, and my belief is one equivalent to a religious belief, then why should I not regard the government as establishing a religion, and a false one at that?
Galston on Religion, Conscience, and the Case for Accommodation,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol51/iss4/12