Religions as Sovereigns: Why Religion is "Special"
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- religion; sovereignty; federalism; religious freedom; values of religious freedom; theory of religious freedom; why religion is special; Civil Rights and Discrimination; Constitutional Law; First Amendment; Human Rights Law; Law and Society; Public Law and Legal Theory; Religion Law
Commentators increasingly challenge religion’s privileged legal status, arguing that it is not “special” or distinct from other associations or philosophical or conscientious claims. I propose that religion is “special” because it functions metaphorically as a legal sovereign, asserting supreme authority over a realm of human life. Under a religion-as-sovereign theory, religious freedom can be understood as at least partial deference to a religious sovereign in a system of shared or overlapping sovereignty. This Article suggests that federalism, which also involves shared sovereignty, can provide a useful heuristic device for examining religious freedom. Specifically, the Article examines a range of federalism theories and the values of (and concerns about) federalism that they identify and draws strong parallels with a range of theories of religious freedom, highlighting its similar values and potential weaknesses. This comparative endeavor highlights the powerful resonance of sovereignty talk in the religion and law field and suggests that sovereignty is part of the deep structure of our understanding of religious liberty.