Three Conceptions of Religious Freedom

Key Findings:

There are three main conceptions of religious freedom, that might align or diverge from each other, when used to judge the nature of cases that relate to religion in court - individualist, institutionalist, and peoplehood. They are derived from the three most prominent religions in America—Protestantism, Catholicism, and Judaism respectively. 

The individualist conception states that all individuals are entitled to their own beliefs and the freedom “to follow the demands of individual conscience”. For instance, in the mid 20th century, the Supreme Court exempted certain individuals from military services "whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war." In recent years, this strain of thought has declined in popularity. 

The institutionalist conception, based on Catholicism, has been on the rise. Its goal is to support religious freedom by protecting the autonomy of a religious domain, and not necessarily the individual. The institutionalist conception argues that religious institutions are key for “social interaction and individual flourishing, and thus merit protection from governmental encroachment.”

The peoplehood conception, derived from Judaism, has less explicit roots in constitutional literature, but remains important as it protects ethnographic-religious groups from discrimination. It is perhaps the most complex of the three strains, as it includes the convergence of three qualities: non-discrimination, group rights (rather than individual or institutional) and the overlapping of religion and race. Today, the weight it carries is not often recognized in American law, “resulting in sporadic and unpredictable application.” 

Constitutional structures were designed to protect minority groups from being dominated by the majority. Thus, cases that include all three conceptions aligning with one another lead to more certain, equitable outcomes, than cases in which the three conflict. The issue at hand is that each conception defines religion differently, and “do not merely supply different answers to the same question… they supply different questions as well as different answers.”

As it stands today, the individualist stance is on the decline, with the institutionalist and peoplehood stances on the rise. However, there remains no general consensus on which strain of thought leads to the fairest judgment of religious freedom in court. The author argues that a bias towards one or two conceptions, or even a neutral stance, would fall short, and thus recommends a pluralist one, where religious freedom must respond to all three strains of thought. Meaning, each strain should be regarded equally so that they are all protected and can hold equal weight in court. In this way, individual conscience, institutional autonomy and equality for all groups is secured.