Religion Without God and the Future of Free Exercise

In Religion Without God Ronald Dworkin offers a distinctive moral reading of, primarily, the Free Exercise Clause, rather than an historical or precedent-based reading of that clause. Professor Dworkin’s reading apparently seeks to expand the class of persons whose beliefs might fall within the potential coverage of the Free Exercise Clause. But Dworkin’s recommended class of covered persons is, we shall suggest, controversial in both its inclusions and exclusions. Dworkin’s criteria for the revised class of those covered by the Free Exercise Clause would likely be unstable, with significant further consequences for the substance of free exercise jurisprudence in general.

The limits of free exercise conscience coverage would, we suggest, likely be further re-set, not in accordance with Professor Dworkin’s criteria, but instead in accord with what we might call a broader Hobbesian egalitarianism. And as the class of persons covered by the Free Exercise Clause thus expands under contemporary cultural circumstances, we should realistically expect a general depreciation of the Free Exercise Clause.