Jane Rutherford


Religion has always played a major role in American society, both politically and socially. Its influence on the Constitution is expressed in the Establishment and Free Exercise Clauses. Why is religion given special treatment by the Constitution? In this Article, Professor Jane Rutherford makes a structural argument for religious liberty. Rutherford posits that religion is treated differently not because of the content of its views, but because of the various other functions it serves, such as providing voices for outsiders and advancing non-market values. Rutherford concludes that we should return to more serious enforcement of the Establishment and Free Exercise Clauses in order to give a more principled basis for preserving important liberties.