Toomey on "Religion," Before Darwin @profjamestoomey @HaubLawatPace @WashULRev

James Toomey, Pace University School of Law, is publishing "Religion," Before Darwin in volume 101 of the Wash. U. L. Rev. Here is the abstract.

The First Amendment singles out “religion” for special treatment, but the boundaries of that concept have always been difficult to describe. Nevertheless, there is a growing consensus that — at least as an original matter — “religion” in the First Amendment refers only to more-or-less theistic doctrines. But scholars have long struggled to explain why theistic doctrines would be worth treating differently than their alternatives. This Article argues instead that the concept of “religion” in the late-eighteenth century must have been broader than it is today, referring more generically to something like “worldview.” In the pre-Darwinian intellectual climate in which the First Amendment was written, all plausible worldviews were what we would today think of as “religious.” “Religion” was not a concept bounded by, or an alternative to, “science,” or a “secular lifestyle,” or “non-religious doctrines.” The concept necessarily encompassed all remotely-plausible accounts of the nature of the universe and foundations of ethics. And although our understanding of “religion” has fundamentally changed, the First Amendment incorporates the earlier, broader understanding. Reading “religion” in this broader way further helps explain contextual features of the First Amendment — its general purposes, its grammatical structure, and the nature of the rights its framers were trying to protect. And this interpretation lets us reckon with the purpose and contemporary relevance of the Religion Clauses, as a commitment not to privilege certain worldviews, but to ensure that questions about how we ought to live and why are a private, not governmental, concern.

Download the article from SSRN at the link.