Is Religion Outdated (as a Constitutional Category)?
The debate among legal scholars about whether religion is special is chronically confused by the scholars’ failure to grasp a point familiar in the academic study of religion: “religion” is a label for something that has no ontological reality. Religion has no essence. If it has a determinate meaning, it is simply because there is a settled and familiar practice of applying the label of religion in predictable ways. The question of religious accommodation arises in cases where a law can allow some exceptions. Many laws, such as military conscription, taxes, environmental regulations, and antidiscrimination laws, will accomplish their ends even if there is some deviation from the norm they set forth, so long as that deviation does not become too great. In such cases, special treatment is sometimes appropriate. Religious exemption is the practice of singling out religion as a basis for such special treatment. Since there is no such thing as religion, if such accommodations are justified, the justification must ultimately depend on some desideratum other than religion. Religion can only be a proxy.
“Religion” as a Bundle of Legal Proxies: Reply to Micah Schwartzman,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol51/iss4/14