San Diego Law Review

Library of Congress Authority File


Document Type

Is Religion Outdated (as a Constitutional Category)?


“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” These first words of the First Amendment would seem to designate religion as a special category in constitutional law. While acknowledging this textual designation, however, some legal scholars have come to view the category as a product of historical contingencies of the late eighteenth-century; they have doubted whether persuasive contemporary justifications are available for giving special constitutional treatment to religion. (Or at least special favorable treatment: scholars have tended to be more approving of special constitutional burdens or disabilities imposed on religion under the Establishment Clause.) So, is there any good justification today for giving special constitutional treatment to religion? In March 2014 a select group of legal scholars gathered at the University of San Diego to discuss the question: “Is Religion Outdated (as a Constitutional Category)?” This Symposium collects some of the papers that were presented and discussed at that conference.