Religion on Trial: Religious Freedom Jurisprudence and the Constitution of Religious Subjectivity

In two recent cases, Elane v. Willock and Burwell v. Hobby Lobby, courts considered religious freedom arguments regarding general regulations of for-profit businesses. A close reading reveals a key reason why one of these arguments succeeded where the other failed: judges in each case drew upon different assumptions about the nature of religion and religiosity. The work of Michel Foucault and Judith Butler can be used to frame this issue in terms of the constitution of religion and religious subjectivity. Modes of religiosity are constituted through their ongoing enactment, and the particular forms of religiosity that can or will be enacted are influenced by jurisprudence that recognizes some forms of religion over others for legal protection. This raises pragmatic and ethical problems for both religious freedom law and religious actors. Addressing these problems in a sophisticated and meaningful way will require a continual critique of how religion figures in our legal imagination and what the consequences of this are for religious practice and possible modes of religious subjectivity.