Beyond separation and accommodation : Sandra Day O'Connor on religion and the political order.


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This dissertation examines the American Supreme Court’s political thought concerning religion as it is revealed through its Establishment Clause jurisprudence. Scholarship on the Court’s Establishment jurisprudence tends to focus on the legal theories employed by the various justices and therefore also the legal consequences of the Court’s decisions. This project approaches these opinions from a theoretical perspective, analyzing the justices’ particular theoretical understandings of religion and how it philosophically fits within the American community’s political order. After arguing that the Court has assumed that the religion protected by the First Amendment is believed as opposed to enacted, individualist as opposed to communal, and voluntarist as opposed to received, the dissertation examines the two main approaches the Supreme Court has taken to adjudicate Establishment claims—Separation and Accommodation—showing that both approaches presume this theory of religion, therefore also assuming that religion must be privatized. Turning to Justice Sandra Day O’Connor’s jurisprudence, the project suggests an alternative approach to religion within the American political community, arguing that O’Connor’s theoretical approach creates space for religion within the American political community. Reading her Free Exercise and Establishment jurisprudence in conjunction with each other shows that she presumes that religious freedom is political in character, and therefore becomes intelligible through religious persons’ participation in the American political community as religious persons.