Is religion “special”? Taking this as a philosophical question, we might conclude that it is not, that religion is a specific instance within a more general category of belief or commitment. But a philosophical question is not the same as a constitutional question. After all, the U.S. Constitution might explicitly affirm or implicitly reflect propositions that philosophical reflection would refute. If so, unfettered reason must give way to the law. Jeremy Bentham famously declared, “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense—nonsense upon stilts.” He might well be right. But that is not what the Framers thought, and it is their thought that governs us, unless and until we the people decide to discard or emend it.
The First Amendment unmistakably singles out religion for special treatment. Congress may not establish a religion, either by giving it a preferred institutional position or by using its distinctive doctrines as the basis for legislation. But far-fetched as it may sound, there is nothing in the Constitution to stop Congress from establishing a secular doctrine. For example, it can create and fund an economic board whose membership is restricted to Keynesians (or supply-siders), and it can base legislation on its preferred economic theory, even though many experts and ordinary citizens reject it.
There are many reasons why the first U.S. Congress embraced this distinction. Its members knew all too well about religious strife; they had no experience of civil or international conflict sparked by philosophical differences. They knew, as well, that the repression of religious differences had been characterized by exceptional cruelty and went to the core of individual identity. The man who drafted the First Amendment was the author of the famous “Memorial and Remonstrance,” which had placed each individual’s understanding of duties owed to the Creator above, or outside, the proper scope of civil law. Religious free exercise, said James Madison, was “in its nature an inalienable right.”
It followed that proposals to limit religious free exercise would have to discharge a heavy burden of proof. No one doubted, or doubts, the propriety of certain “time, place, and manner restrictions”: free exercise doesn’t entail the right to conduct a loud revival meeting in a residential neighborhood at 2 a.m. In such circumstances, religious noise is on par with secular noise.
BUT HOW far does this legal parity extend? No one would seriously argue that the claims of religious free exercise extend to human sacrifice (as opposed to animal sacrifice, which does enjoy First Amendment protection). There are some bedrock civil concerns that the law may enforce, regardless of their effects on particular religions. But for most of our national history, legislators and jurists distinguished between such concerns and the more typical objects of legislation, which ...
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