Steven Douglas Smith (University of San Diego School of Law) has posted Freedom of Religion or Freedom of the Church? on SSRN. Here is the abstract:
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This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church. Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of “religion,” or that it creates or accepts a special category of “religion” that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church- a campaign devoted to maintaining the church as a jurisdiction independent of the state– developed into a commitment to freedom of conscience (conscience being the “inner church,” so to speak). The section then relates how this commitment to freedom of the church- both the institutional church and the inner church- came to be reconceived as a more generic commitment to freedom of religion, with the unfortunate consequences considered in Part 1.
Highly recommended.