There has been an ongoing discussion about the threats to religious liberty over at the CLR blog ( Center for Law and Religion at St. John's University School of Law).
Of prime concern is it appears that the defense of religious liberty might be under some serious strain in the legal academy itself.
People might scoff at that as "alarmist", but some very big legal minds in this area think the problem exists. People that have contributed to this conversation include:
Steven D. Smith- Warren Distinguished Professor of Law at the University of San Diego School of law.
Mark L. Movsesian- Frederick A. Whitney Professor of Contract Law and the Director of the Center for Law and Religion at St. John's University School of Law.
Marc O. DeGirolami - Assistant Professor of Law; Assistant Director, Center for Law and Religion at St John's University School of Law.
Paul Horwitz- Associate Professor University of Alabama School of Law and also contributor to the popular and well read PrawfsBlawg.
The posts in order are:
Can Religious Freedom be Justified?
The Dis-integration of Neutrality
Religious Freedom and the Social Contract
Laycock on the Vulnerability of Religious Liberty
Horwitz on the Impact of Justification Scholarship
Justifying Religious Freedom: Three Observations
How Important is Public Support for Religious Freedom?
In the post Justifying Religious Freedom: Three Observations , I think this argument to our more secular citizens is a "winner":
..Second, if one were looking for a secular justification for religious freedom, it seems to me that providing a check on state power is a pretty good one. Pluralism is the best guarantor of political freedom, and pluralism requires that the state have competitors. In Western history, nothing has proved a stronger competitor for the state than religion and, specifically, Christianity. Because of its unique capacity to encourage commitment, religion has provided a counterweight to state power since – well, since the late Roman Empire. Even people of no faith — in fact, even people who are hostile to religious belief as such — should be able to see this benefit of religion...
I agree with that and in the grand American experiment it's proven I think to be much needed and powerful check on Govt power.
The problem is often many Americans have "blinders" when they or their group have to take a hit for religious freedom. For instance it's really no secret that a lot of people that scream the loudest about religious freedom are not exactly defending Muslim Religious liberty rights. See the Louisiana headlines last week where some people are shocked that education vouchers have to go to Muslim schools also.
These blinders are everywhere and seem to go across different "partisan " lines. I think we are seeing the same thing as to the HHS birth control mandate. Thus even more the need to be aggressive withreasons for religious freedom that appeal to more secular folks.
Which brings us to these observations at Laycock on the Vulnerability of Religious Liberty which looks again at the secular perhaps more hostile demographic to religious liberty.
Today I (re)read Doug Laycock’s recent essay called “Sex, Atheism, and the Free Exercise of Religion,” 88 Detroit-Mercy L. Rev. 407 (2011). It’s an important essay, and everyone who reads a blog like this one ought to read it and think seriously about it.
The essay, written before the current controversy about the “contraception mandate,” begins with the sobering observation that “[f]or the first time in nearly 300 years, important forces in American society are questioning the free exercise of religion in principle– suggesting that free exercise of religion may be a bad idea, or at least, a right to be minimized.” And he “worr[ies] that the success story [of American religious liberty] may now be at risk.”
Doug describes the challenge to free exercise as coming from two main sources. First, the gay rights movement has come to perceive traditional religion as its principal enemy. And “[i]f traditional religion is the enemy, then it might follow that religious liberty is a bad thing, because it empowers that enemy. No one says this straight out, at least in public. But it is a reasonable inference from things that are said, both in public and in private.” Doug makes it clear, by the way, that he is strongly in favor of gay rights, and he lays approximately equal responsibility on gay rights activists and religious conservatives for their unwillingness to compromise.......
...The essay should serve as a warning to those who think expressions of concern about religious freedom are trumped up or “much ado about nothing.” Doug’s expression of concern is especially credible for several reasons. First, he is not only a leading scholar of religious liberty, but he has also been active in litigating and lobbying for religious liberty. He knows what he’s talking about, first-hand.
Second, Doug’s support for gay rights and his publicly expressed religious agnosticism should make it more difficult to dismiss his expression of concern as just pretextual or paranoid, as critics may say when Catholic bishops or LDS authorities raise similar concerns. In addition, I don’t think Doug is temperamentally pessimistic or apocalyptic (as his essay suggests that I may be– heaven forbid!).........
I think that is very true and is something I observe often. Again as to religious liberty we find everyone sort of has to take a hit. Making that argument is never easy.
One case that comes to mind here ( that seems in endless litigation) is the New Mexico State case of Elane Photography v. Willock . A case that I think correctly concerns a good many people. Prof Eugene Volokh needless to say is not buying the current legal reasoning. See Wedding Photographer May Be Required (on Pain of Legal Liability) to Photograph Same-Sex Commitment Ceremonies .
The personal feeling of this photographer seem to be beyond the real point.
Here we don't only have a religious First Amendment claim we also have a huge artistic First Amendment claim to boot. One might think that the photographer's views on gay marriage horrid. But can the Government really compel a photographer to basically participate in a gay wedding ceremony and produce lets say a sort of sacramental art for it ?
These type of cases I think are the new front in the religious freedom battles.
A close cousin to this situation is professional licensing , once used to make sure people are competent, will be used to help produce other political and social changes. We see this already in some cases involving counseling and where issues of reproductive rights come into play.
Returning to the Elaine Case, let us say for the sake of argument that the photographer is doing a "wrong" by not servicing gay weddings and receptions. A important question that concerns us all is "SO WHAT".
Prof Rick Garnett of Notre Dame I think makes an important point in a paper he presented called Religious Freedom and the Nondiscrimination Norm". ( The Bolding is mine)
.....The important enterprise of respecting and protecting religious freedom in and through law is closely related, in several ways, to the also-important enterprise of deploying public power to identify, regulate, and discourage wrongful discrimination. It is suggested in this chapter the rhetorical, moral, and legal power of the antidiscrimination norm can sometimes distort or distract our thinking about how we do and should protect religious freedom through law.
This is because the near-universal, if sometimes unreflective, conviction that “discrimination” is wrong means that assertions of religious freedom are sometimes heard as requests that the political authorities
tolerate a wrong – i.e., “discrimination” – which they would otherwise prohibit, penalize, or discourage.
Such requests then raise the question whether it is “worth it” for the authorities to do so – that is, whether doing so would complicate too much the government’s own projects or conflict too glaringly with its values—and so, when they are granted, accommodations are regarded all around as concessions.
Sometimes, to be sure, we do and probably should think about legal rights as protecting, or simply tolerating, a liberty to do even the wrong thing (so long as the wrong thing is not too wrong). We should not forget, though, that a dimension of the freedom of religion is, sometimes, precisely the freedom to “discriminate,” and that this freedom should be protected not simply because such discrimination is an all-things-considered tolerable wrong – sometimes it is, sometimes it isn’t – but because it is inextricably tied to a human right and is, sometimes, beyond political authorities’ legitimate reach....
The legitimate reach question is of course of prime importance. Does political authority at some point just sort of peter out that it cannot address every imaginable wrong. In fact do we even want it too.
The New Mexico Elaine case strikes me as a important case that seems to be pressing the limits of State power. Something that perhaps might offend even the most secular person or at least give them cause for concerns. In other words where does the long cherished American principle of the "right to be left alone" that often interplays with religious liberty come in. If the "right to be left alone" means basically having to be a hermit on a mountain somewhere it does not seem much of a principle anymore.
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