Carving Up Free Exercise: Dissociation and "Religion" in Supreme Court Jurisprudence

In the last two hundred years, the Supreme Court's interpretation of the First Amendment's "free exercise of religion" clause has implicitly defined and redefined "religion" itself. These various understandings can be charted by attending to what Perelman and Olbrechts-Tyteca call moments of "dissociation." Early on, "religion" was understood in terms of its split into "belief" and "action," a predominantly Protestant formulation. The Court eventually collapsed the dissociation, only to reintroduce it later as a basis for judgment. The history of "religion" in a legal economy of language provides a poignant illustration of the power of dissociation as a phenomenon of knowledge production.