Do Religions Deserve Special Status?

07 September 2016


The First Amendment to the US Constitution protects our right to say and publish whatever we think, but doesn’t in general guarantee the right to do any more than that. I can believe that people shouldn’t wear fedoras, and I can publish my view. But I can’t go around knocking fedoras off the heads of those that wear them, and I may get in trouble if I fire employees for wearing fedoras. But it seems to go further with respect to religion. In addition to ruling out the establishment of a state religion, it also guarantees “the right to the free exercise of [religion].”  You cannot only preach what you believe, you can practice what you preach. But just what does this mean? Do we really treat religion in a special way? Should we?

When I was young and the draft was in effect, if you practiced a religion that endorsed pacifism, you could be declared a conscientious objector and avoid the draft. But if you endorsed pacifism only on secular moral grounds, you couldn’t. So religious scruples were treated differently than scruples based on other conscientious principles. Our guest, Brian Leiter, cites the fact that Sikh students in Canada are allowed to wear ceremonial knives in class, against the rules that pertain to others. Students wouldn’t be allowed to wear knives simply because they come from families with a deeply held conviction, not based on religion, that having such protection available is a moral mandate. Leiter, a lawyer as well as a philosopher, sees the same distinction at work in U.S. law, and most other Western democracies.

Historically, I suspect that the special treatment of religion in the U.S. Constitution reflects the dominant views of the founders: there is a God, historically He or She communicates to us through conscience and organized religion, and God is a higher power than the state, and so religion deserves special recognition. But if that were made explicit, it would build an endorsement of religion -- theism, if not full blown Christianity -- right into  the fundamental law of the land. And that directly violates the anti-establishment clause of the first amendment. From a more modern perspective, it would make the first amendment self-contradictory.

On the other hand, recognition that the state is not the ultimate moral authority seems like a good idea. Could we do that, if someone asked us to rewrite the Bill of Rights, without giving undue weight to religion, and without making every person the judge of which laws they should obey and which they shouldn’t obey?

Comments (18)

Guest's picture


Saturday, December 14, 2013 -- 4:00 PM

I live by my own constitution

I live by my own constitution, One that is self-evident, One that unites everything, One that is simple, elegant and true. My constitution is equality, my truth is One. ='s picture

Saturday, December 14, 2013 -- 4:00 PM

I think religion confers an

I think religion confers an institutional context on some of the circumstances you cite, such as objection to participation in the military or wearing ceremonial knives. Without the legitimizing, formal framework of the religious institution, such objectors or knife-wielders would be unpredictable freelancers, loose cannons whose behavior would be perceived as unmanageable and whose motivation would lack formal reinforcement.

mfstone's picture


Saturday, December 14, 2013 -- 4:00 PM

I would like to begin by

I would like to begin by pointing out that, although it is a fact that the US Constitution contains language which suggests that it "protects our right to say and publish whatever we think? it should be pointed out that that ?we? is exclusive. For example, the US government has negated the rights guaranteed by the Constitution for certain groups of people with certain ideas such as the various Native American tribes who were forced to assimilate and not allowed to even speak the language that housed their culture. If ?language is the house of being? as Heidegger suggested, then not allowing the aboriginal people to speak their own tongue was a greater offense than merely suppressing discourse. Another case in point is anti-communist activity during the Cold War such as the COINTEL Program. My point here is that the US Constitution and the rights provided by it are only allotted to a subset of individual and ideas. If we are to apply the standards of logic to the statement, then it?s a demonstrably false statement. Also, as is the case with ?justice,? rights given to to a subset of those subjected to a system and it?s laws leaves a bad taste in one?s mouth, although, if your Nietzsche this is just how it should be. Regardless of how me want things to be normatively, the facts of history and even modernity suggest that such things as ?rights? are only applicable to certain people under certain conditions.
If we?re going to talk about ?religion? then we need to get clear about what it means. The story in the second paragraph provides an suggestion. John wrote, ?[During the Vietnam draft] if you practiced a religion that endorsed pacifism, you could be declared a conscientious objector and avoid the draft. But if you endorsed pacifism only on secular moral grounds, you couldn?t,? and this brings something to mind about religion: it?s organized. Unorganized individuals with secular beliefs have no political force and so there?s not much incentive for the US government to recognize those views as being legitimate. Whereas, with organized religion, these were granted protection in an era in which God was still alive (to allude to Nietzsche). The established religions of the time held political influence (and do to this day). This is not the case with minority belief systems and the secular unorganized. So, one way we might distinguish religion from not-religion is by the attribute of organization. As far as the politics is concerned this, I think, is enough to see why (historically) religions have been granted special protections, i.e., they?re organized political factions. I anticipate that, as more atheists and humanists organize, the urgency of these very questions we are concerned with here will come to the forefront in the same way (with the same controversy) as gay marriage.
My point above is a supplement to John?s remark that "the special treatment of religion in the U.S. Constitution reflects the dominant views of the founders.? It?s obvious that these leaders made the contributions, carried out the deliberations, and so on which led to the making of US law, but we cannot disregard the fact that they are products of their environment and subject to the forces of society. The notion of ?founding fathers? itself is a shadow of God (to allude to Nietzsche, again). They were agents carrying out actions but those actions were not merely compelled by their sole agency. They cannot claim to be the sole authors of the US Constitution, as God was claimed to be the author of the Universe, even if it was their hands and mouths which led to its production as an object.
The point which I started this comment with confirms John?s remark that "an endorsement of religion...would make the first amendment self-contradictory.? Historically, this is exactly how practice has been in the US. To this day all religions are equal but some are more equal than others and, in my opinion, this makes the US Constitution a farcical document; it?s a document of bad faith.
I think it is possible to rewrite the Bill of Rights in such a way that it would not give undue preference to religion while also not becoming a Thelemic proclamation of ?do what thou wilt shall be the whole of the law.? To explain how this would be possible would require a book.

Guest's picture


Monday, December 16, 2013 -- 4:00 PM

Rewrite the Constitution? I

Rewrite the Constitution? I'll try:
A  Declaration of Unity Freedom & Equality
We the people of this planet  Earth, in order to form a more perfect or equal union, establish equitable justice, insure domestic as well as universal tranquility, provide for a common defense against inequity, promote a general  equitable welfare system, and secure the Blessings of Liberty, or more simply the true Freedoms of Equality, to ourselves, our posterity, to all things, must declare and practice a new constitution, based on the ultimate truth, the power of Nature?s true equality, the separate and equal station in which Nature?s God entitles all, the self-evident truth that not only all men, but equally all things are truly created equal, that all is truly One. Then and only then, will mankind as well as the entire universe be truly united, and equally set free. The time has come to dissolve the bands of inequity that divide us, the time has come for a new declaration, a revolution based on truth, a new constitution powered by nature?s true equity, true unity, true oneness, the time has come to unite all things and set the universe free.
The truth shall set us free!

Laura Maguire's picture

Laura Maguire

Monday, December 16, 2013 -- 4:00 PM

Great comments!

Great comments!

kidney's picture


Thursday, December 26, 2013 -- 4:00 PM

Oh No

Oh No
right is an illusion
we make it real by truth
truth is what in essence, forms ...
change is inherently about right, I'm moved ...

YaleLandsberg's picture


Saturday, December 28, 2013 -- 4:00 PM

I found your post very

I found your post very simpatico! And I am hoping you and others here will give me your unfettered thoughts per a suggestion of mine, one that is about how if we choose to do so, we can harness and employ feelings of "wholeness" and "oneness" of individual family members in support of greater family cohesiveness?
More specifically,..
To help many of today's families increase their chances of staying whole and one in the face of all sorts of ever increasing disruptive pressures, at my site I have been proposing something that seems to me to be worthy of consideration: members of a family seeing themselves as lerally parts of a sacred family congregation. Please note that everything about my idea of a family congregation is completely open-ended, and (though at first seemingly sacreligious to many who see religion only in familiar, but not family terms) I think wholly in accord with our Constitutional freedoms as well as our deepest senses of spirituality. .
Regards and hoping to hear your and others thoughts!

M. Newton's picture

M. Newton

Saturday, December 28, 2013 -- 4:00 PM

Let me suggest that "founding

Let me suggest that "founding fathers" is not derived from a belief in God, but, rather, that our belief in gods and God is derived from the usefulness of fathers to a species requiring a long developmental period.

Hugh Millar's picture

Hugh Millar

Sunday, December 29, 2013 -- 4:00 PM

Hello John, thanks for

Hello John, thanks for raising this interesting question.  I guess it might help to try to work out what religion is really about.  
We're a social species.  Everything we do, we do together - few of us could live much longer than a month without the continuing efforts of others; on the other hand, the more we cooperate, the more we achieve.  For cooperation we need a moral code.  Those who profess/observe the code are full, trustworthy members of their group, and reliable prospects in any joint project.
Religion is the tool we developed to build and pass on the group moral code.  Religious practice serves some key functions: it provides a forum for the discussion and maintenance of the code; it affords opportunity for individuals to publicly commit to the code and to observe from the behavior of others the degree to which they deliver on their commitment to it; it instills the code by harnessing deep human sensibility and creativity - smells, bells, song, architecture, fine arts, fantasies of supernatural agency lurking behind mysterious events; it identifies its practice with the moral code and protects both by elevating them to the realm of the 'sacred', a domain expressly intended to brook no meddling.
The protection of virtuous mores in a cooperative society is clearly of the very highest importance and makes a good reason to accord religion special status.  But this accorded freedom, like all others, needs managing where it threatens to encroach.  You should be free to spend your Sundays in church, but not to insist that I do the same.  The state's job of maximizing freedom for all can only be done by limiting to some extent the freedom of each.
A lot of this is historical, of course, but deep religious entrenchment still engenders strong feelings which are more safely accommodated than confronted, save in those special cases where other important freedoms are at stake.  That's how it seems to me, anyway!

alt.phaytalist's picture


Thursday, January 2, 2014 -- 4:00 PM

I think American religion has

I think American religion has been riding an amazing tax-free gravy train for 237 years. Does no one understand that the clause "Congress shall make no law..." puts religion outside the law? Look at the Catholic church's pedophilia problem: This had been likely going on for decades, but secular authorities were so hesitant to enforce the law because they were afraid of the outlaw nature of organized religion. In addition, because of this clause, abusive cults who call themselves a "church," can operate freely because of the U.S. constitution. Organized religion is untaxed and unregulated and it is outside the laws of society. What an incredible gig!
On the other hand...I don't feel a prohibition against the freedom to practice religion is necessary. Not all churches or religions are behaving badly. But when the free exercise of religion entails thievery, pedophilia, tax-evasion and the unnecessary cultic torture of church members, I think it's okay to say NO and shut those churches down.  
The problem I think is that churches are organizations and as such are operated by corruptible humans. They are therefore not trustworthy (to return to another thread on this site) as any organization is not, and should be subject to all of society's laws and standards that prevent organizations from overreaching. Religions, which are also thriving businesses, need to be taxed and regulated like any other business. You can still give Father the clergy rate, or heed the advice of your minister, but as a member of the "flock," and a member of society, you could also know that your personal, constitutionally guaranteed rights are protected from unscrupulous people of the cloth.

Mello Jello's picture

Mello Jello

Wednesday, January 15, 2014 -- 4:00 PM

loved this comment mfstone. i

loved this comment mfstone. i love how you showed that "rights" in the social contract here in America have a track record for not being distributed equally. so it seems we've come to a place where we can't judge religious privilege because "rights" don't have a universal worth.

Mello Jello's picture

Mello Jello

Wednesday, January 15, 2014 -- 4:00 PM

great comment hugh, I like

great comment hugh, I like the deductive breakdown of religion's necessary place in social evolution.

Mello Jello's picture

Mello Jello

Wednesday, January 15, 2014 -- 4:00 PM

i like the idea of

i like the idea of establishing a fair tax for religious profits and properties.

Harold G. Neuman's picture

Harold G. Neuman

Wednesday, January 29, 2014 -- 4:00 PM

The question was: do

The question was: do religions deserve special status? The better framing of the question might have been: does religion deserve special status? I believe the answer (in an American context) is no. Because of our nation's great devotion to freedom of religion, religion has encroached upon aspects of political process where its influence ought never to have been allowed. One of those remains a cauldron of controversy: abortion and whether or not women have the right to choose for themselves. The Catholic church is adamant but women are stoic and stubborn, as well they should be. They do not need a male dominated institution dictating their rights in this personal matter. This issue is old, yet it remains vital enough to divide families, thus illustrating the oftentimes divisiveness of religion itself. On a different plane, when we examine current and past world conflicts, we see time and again, the consistent squabbles which, at their roots, are based upon religious differences; sectarian disputes and attendant cultural intractibilities. Make no mistakes here. Religion, at its base, is about power and power is about money. Any arguments about altruistic soul-saving and a family of man are a time-honored (sic) ruse, concocted to appeal to the ignorant masses.You need not like what I am saying here. I do not mind. Special status for religion? How much more special are we talking about anyway?

Harold G. Neuman's picture

Harold G. Neuman

Friday, February 7, 2014 -- 4:00 PM

After due consideration and

After due consideration and review of comments submitted thus far, I deduce that Dawkins; Hitchens; and Dennett are, so far, right: God is a delusion, is not great and we ought to break the spell. Some of us may subscribe to Pascal's Wager: cutting our losses. But, supposing God's existence, we must also suppose God is not a fool. Pascal was a mathematician and physicist, therefore he must have known something about the odds. If God exists and is, therefore, not a fool, odds mean nothing. Albert Einstein, another scientist of note,allegedly said that God did not play dice. How did Einstein KNOW this? I don't believe he did. It just sounded good at the time. He may have been subscribing to Pascal's Wager---hoping for eternity vs. oblivion. But---we shall never know. Well, probably not anyway. Lots of people are working to discredit Charles Darwin. Many of them are blissfully ignorant of facts that prove evolutionary theory. But, this now brings us back to the religion matter. Circularity seems prevalent. Hitchens, Pascal and Einstein are dead. Pretty final. Everybody dies. Do the best you can while you are here. It is your first, best and last shot. Unless you believe in the promises of religion. Good night and good luck.

DavidPerry's picture


Wednesday, November 25, 2015 -- 4:00 PM

Its diplomatic. Sometimes yes

Its diplomatic. Sometimes yes or sometime no. Religious deserve specific status?? Still a question.
'The Catholic church is adamant but women are stoic and stubborn, as well they should be.' Hey Harold, the sentence you said is true and I liked it. But this will continue.

Harold G. Neuman's picture

Harold G. Neuman

Wednesday, August 31, 2016 -- 5:00 PM

The special status issue

The special status issue remains puzzling to me, yet, I think I know why it exists. Well, partially, anyway. Inasmuch as there are certain constitutional provisions, of which most of us are well aware, it would appear that there is precedent for granting some sort of special status because it has already been granted, if only tacitly. To wit: the constitution prescribes freedom of religion, while also prescribing freedom from religion. Therefore, religion is a protected class under law. Those who choose no religion are also protected, at least in theory, although the protection is more akin to: just leave them alone, they are all damned anyway and after all, they pay taxes too. Now given the history of the USA and those who came here to escape various persecutions, the framers of the constitution really had little choice. If you don't walk the walk after talking the talk, you lose the beat. So, there is ample special status to go around, seems to me. That is not to say, of course, that some don't want more of it.

Gary M Washburn's picture

Gary M Washburn

Friday, September 9, 2016 -- 5:00 PM

I don't know why this issue

I don't know why this issue should should come up now, or why the postings should not be in chronological order.
At the time of the American Revolution, the several states each had its own dominant church which thought of it as their right to be the "established" religion. That is, as having the legal authority of the state behind it in requiring all residents to be members and to pay for its support. In the southern states this would be the Church of England which, though created during the Reformation, was not, strictly speaking, "reformed". And there was considerable controversy in this as "reform" churches were vying for recognition. Southern Baptists, in particular, were fiercely opposed to an established "C of E", and these were a vital constituency for Thomas Jefferson. The establishment clause could therefore refer to nothing more than the formal status as the "established" church. But if it is indeed about religious liberty, this needs to be distinguished between individual and collective rights. If religious liberty is an individual right it is hard to see how it could be construed to support the power of religious authority over its membership, as it is being used these days to suppress abortion rights. And if we do accept a collective or corporate right, as the corporeality of a congregation, the we also open it to interpretation as the corporeal right of a business or political association, which tends to corrupt and undermine any individual application. A case in point is the 14th Amendment.
The exemption to taxation granted churches is a dangerous aspect of the issue. The Reformation was largely the result of secular authorities frustrated by the accumulation of valuable properties in the hands of the prelates. That accumulation is entropic. That is, it has no reason to reverse, so that any trend to accumulate property has no countervailing pressure, and publicly taxed properties tend to dwindle over time, making taxes higher and higher on secular owners. Some cities in this country are plagued by this dilemma. But if religious liberty is individual and not corporate, there is no reason why any church should be able to operate a profit making enterprise without paying taxes, or to simply hold on to property it does not put to any use at all, not even for charitable purposes. Only specifically religious or charitable enterprises should get the exemption.
Religions get a pass on inquiry in so many ways. But even if we insist upon continuing to exempt them from submitting their outrages doctrinal claims to critical investigation, we still have no reason to give them a pass on the honesty, and even decency, of their motives. We do have a motive to assure liberty of belief and opinion. How else can we conduct a democracy, if we fail to recognize the rights of others to their own opinions? But that right does not necessarily come with a guarantee of politeness. And if believers, and their church authorities, think religious liberty means the right to exhort or exert pressure on others to believe as they do, then I think there not only is no religious liberty in this, but that there is a right to be rude in response. Just because you preach being "good" doesn't mean you are, or that what you preach is.