Determining What Counts as Religion in American Public Life: Theory, History and Law

Abstract

This dissertation applies methods for conceptualizing religion within the field of religious studies to debates over the significance of religion in American law. In particular, I focus on two related questions in American jurisprudence: What should count as religion in American courts, and is a satisfactory justification of the special constitutional status of religion possible? Judges require some mechanism to determine which claims to religious status merit constitutional protection, but courts and legal scholars have not developed a consensus approach to identifying religion. In order to evaluate the existing proposals for determining religious status, I first review several prominent critiques of the field of religious studies. Through these critiques I arrive at a three key criteria for evaluating approaches to determining what counts as religion. I then develop a comprehensive taxonomy of methods for conceptualizing religion within religious studies and related fields, and I use the three criteria to evaluate these methods. I argue that no existing proposal for determining what counts as religion is adequate to the demands of courts, so I develop an alternative that relies on a historically grounded, analogical approach to classification. Some scholars also argue that the special constitutional status of religion requires a justification, and while this claim is not uncontested, I argue that fairness and the conceptual coherence of the concept of religion both demand such a justification. I evaluate a range of proposed justifications for this special status, and I argue that none can satisfactorily explain why religious claimants merit special protections – and burdens – that are not available to non-religious claimants.