David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
In recent years, many have begun to push a nondiscrimination approach to the Religion Clauses. Two professors, Christopher Eisgruber (formerly of NYU Law School, now provost at Princeton University) and Lawrence Sager (now dean of the University of Texas School of Law), have now developed the most sophisticated and defensible version of nondiscrimination theory, recently publishing it as a Harvard University Press book, Religious Freedom and the Constitution (2007). This piece examines Sager's and Eisgruber's theory - known as "Equal Liberty" or "Equal Regard" - and reflects on both its triumphs and its defects. It demonstrates that Equal Liberty suffers from one particular pernicious and intractable problem - namely, that it is globally indeterminate. At the heart of Equal Liberty is a counterfactual that tries to give religious minorities the protections of mainstream secular and religious groups. When a religious minority is denied a religious accommodation, Equal Liberty asks whether mainstream secular and religious groups would have been able to get an exemption to do the same thing from the political process. If so, Equal Liberty says, a court should grant the religious minority an exemption as well. The deep problem with Equal Liberty, though, is that this counterfactual would seem to grant any religious exemption, no matter how extreme. As an example, take a minority religious group that wants an exemption from the laws forbidding polygamy. No court would give such an exemption. But Equal Liberty asks whether a mainstream group, if they wanted to practice polygamy, would be permitted to do so. And the answer to that seems to be yes. For if our society was such that a polygamous group could be considered mainstream, then it seems obvious that a religious polygamist would not be sent to jail. There is simply no claim for religious exemption that this counterfactual would clearly deny.After examining Equal Liberty, the piece then reconsiders the traditional compelling-interest test which governed Free Exercise Clause disputes until Employment Division v. Smith, and argues that it is actually more consistent with Equal Liberty's foundational principles that the doctrine that Sager and Eisgruber advocate. It also addresses the apparent gap between Equal Liberty and theories of substantive neutrality - and concludes that Equal Liberty, best understood, differs little from those theories.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Corey Brettschneider (2010). A Transformative Theory of Religious Freedom. Political Theory 38 (2):187-213.
M. Allen (2011). Is Liberty Bad for Your Health? Towards a Moderate View of the Robust Coequality of Liberty and Health. Public Health Ethics 4 (3):260-268.
Gemma Cornelissen (2012). Belief-Based Exemptions: Are Religious Beliefs Special? Ratio Juris 25 (1):85-109.
Tomas Bogardus (2013). Disagreeing with the (Religious) Skeptic. International Journal for Philosophy of Religion 74 (1):5-17.
M. Victoria Costa (2009). Rawls on Liberty and Domination. Res Publica 15 (4):397-413.
M. Victoria Costa (2009). Rawls on Liberty and Domination. Res Publica 15 (4):397--413.
Added to index2009-01-28
Total downloads16 ( #236,751 of 1,911,809 )
Recent downloads (6 months)1 ( #458,986 of 1,911,809 )
How can I increase my downloads?