Religion, the Constitution and Rawlsian Justice: A Critical Analysis of David A. J. Richards on the Religion Clauses

Abstract

What sort of relation between religion and government does the Constitution of the United States affirm? As anyone even remotely familiar with the subject will know, this question is large as well as enormously complex and invites reflection on a host of subsidiary problems: What are the precise meanings of the religion clauses of the Constitution's first amendment, clauses which proscribe congressional legislation “respecting an establishment of religion, or prohibiting the free exercise, thereof”? How broadly is the notion of “religion” to be construed here? Does the implied right of free exercise attach to any commitment or action conscientiously embraced (e.g., conscientious objection to participation in warfare)? Or are we to interpret the guaranteed religious freedom in narrower terms? What precisely is the relationship between the “no establishment” and “free exercise” provisions? Might there not be circumstances in which conditions necessary to ensure genuinely free exercise require the sort of “excessive entanglement” that suggests governmental establishment of religion (e.g., state support for parochial schools)? Or is such a worry founded on mistaken understandings of the “free exercise” and “no establishment” provisions? Are the amendment's anti-establishment restrictions limited to federal legislation or do the restrictions apply also to state governments via “incorporation” provisions of the fourteenth amendment? Is the primary purpose of the religion clauses to protect government from religion or religion from government, and if the latter, does the Constitution then permit governmental support of religion so long as no particular religions are preferred? Would such support destroy a “wall of separation” erected by the first amendment? Or is the idea of a “wall of separation,” in this understanding at least, foreign to the sense of the constitutional text? In what respect is knowing the original intentions of the first amendment's framers or ratifiers relevant to interpreting the meaning of the amendment's provisions? How are these intentions to be discovered? And so forth.