San Diego Law Review

Document Type

Is Religion Outdated (as a Constitutional Category)?


Law professors commonly answer this critique by scholars of religion, as Andrew Koppelman does, with the comment that, after all, any ambiguity in definition only arises in a few cases. Most of the time the reference is obvious, he says. Moreover, he insists, it has worked fine for all those for whom it should work. But that is the problem—its very obviousness. The problems of exclusion are largely invisible. The reference is so obvious to many and so obviously inclusive of those who are deserving that there is no way to have a conversation about it without the conversation devolving into a question about whether the activity seeking protection is socially valuable or not. For example, it is embarrassing to have the dissenters in Hobby Lobby and Wheaton College protesting about how much they respect religion and religious freedom while plainly suggesting that what the plaintiffs are doing in these cases is not, in fact, religion—or at least not the right kind of religion. On what ground is that exclusion being made? Where is it written that for-profit corporations and those who run them cannot have religious scruples? Why do we continue to have confidence in our ability to make these distinctions?