The Immanent Frame. Freedom of Religion or Freedom of the Church? by Steven Smith. University of San Diego School of LawAugust 17, 2011 San Diego Legal Studies Paper No. 11-061 Abstract: This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church.
Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of “religion,” or that it creates or accepts a special category of “religion” that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church - a campaign devoted to maintaining the church as a jurisdiction independent of the state-developed into a commitment to freedom of conscience (conscience being the “inner church,” so to speak). A-Postsecular-World-Society-TIF.