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Unpublished Paper
Definitions, Religion, and Free Exercise Guarantees
ExpressO (2015)
  • Mark Strasser

The First Amendment to the United States Constitution protects the free exercise of religion. Non-religious practices do not receive those same protections, which makes the ability to distinguish between religious and non-religious practices important. Regrettably, members of the Court have been unable to agree about how to distinguish the religious from the non-religious—sometimes, the implicit criteria focus on the sincerity of the beliefs, sometimes the strength of the beliefs or the role that they play in an individual’s life, and sometimes the kind of beliefs. In short, the Court has virtually guaranteed an incoherent jurisprudence by sending contradictory signals with respect to one of the most basic questions in free exercise jurisprudence—what counts as religion.

This Article traces the Court’s wavering approaches to free exercise guarantees, noting some of the areas in which the Court continues to send mixed messages. While some of the Court’s articulated positions are simply impossible to reconcile, the Article nonetheless concludes that many of the Court’s seemingly inconsistent assertions are reconcilable, although in a way that doubtless will leave all parties in the Culture Wars somewhat dissatisfied.

  • religion,
  • free exercise,
  • sincerity,
  • strength of belief,
  • theistic
Publication Date
January 29, 2015
Citation Information
Mark Strasser. "Definitions, Religion, and Free Exercise Guarantees" ExpressO (2015)
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