Stephen Greenway (Judicial Law Clerk) has posted Distinguishing Religion From Nonreligion After Catholic Charities, Notre Dame Journal of Law, Ethics, & Public Policy, Volume 40 (forthcoming 2026) on SSRN. Here is the abstract:
States may impose certain limits on the availability of religious exemptions without violating the First Amendment. For instance, the Supreme Court of the United States has recognized that States may limit the availability of religious exemptions to those with sincere religious beliefs. It follows that States may also limit religious exemptions to those with sincere religious beliefs. But how should courts distinguish between religious and nonreligious claims for exemption status in a manner that comports with the First Amendment? Several of the justices raised this issue in oral argument during last term’s Catholic Charities case, which concerned the denial of a religious tax exemption to a group of Wisconsin-based Catholic charities. This Article picks up where the Justices’ questions left off and argues that, absent a statutory definition, courts should differentiate religion from nonreligion based on the original meaning of “religion” in the First Amendment. Although the Supreme Court, federal circuit courts of appeals, and legal scholars have proposed various approaches to defining “religion” in both statutory and constitutional cases, they have often done so without reference to the text or history of the Religion Clauses. This Article argues that, to differentiate between religion and nonreligion claims, the Court should adopt the methodological approach set forth in District of Columbia v. Heller and interpret “religion” according to its normal and ordinary meaning as informed by the historical background against which the First Amendment was framed and ratified. If a belief system meets this definition, it qualifies as “religion.” This Article demonstrates that the Founding generation likely understood “religion” to mean a system of belief in God, gods, or a similar divine being, that imposed duties and obligations, such as worship. Applying this understanding to the charitable organizations in Catholic Charities, this Article demonstrates why Catholic Charities’ activities clearly qualified as “religious” under the ordinary and original meaning of the First Amendment.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum