Abstract
Should religion be singled out in the law? This Article evaluates two influential theories of freedom of religion in political theory, before introducing an alternative one. The first approach, the Substitution approach, argues that freedom of religion can be adequately expressed by a substitute category: typically, freedom of conscience. The second, the Proxy approach, argues that the notion of religion should be upheld in the law, albeit as a proxy for a range of different goods. After showing that neither approach adequately meets crucial desiderata for an inclusive theory of religious freedom, the Article sets out the Disaggregation approach and defends against the alternatives.
Highlights
Should religion be singled out in the law? This Article evaluates two influential theories of freedom of religion in political theory, before introducing an alternative one
The first approach, the Substitution approach, argues that freedom of religion can be adequately expressed by a substitute category: typically, freedom of conscience
After showing that neither approach adequately meets crucial desiderata for an inclusive theory of religious freedom, the Article sets out the Disaggregation approach and defends against the alternatives
Summary
Before describing the various approaches, I begin, in the first section, by identifying the desiderata that an inclusive theory of religious freedom must meet. I do so by surveying common criticisms of the existing law of religious freedom, both from critical and normative standpoints. They are all formulated against the implicit or explicit background of a theory of fairness as inclusiveness. Three different lines of critique have been developed: religious freedom is construed too narrowly to protect a range of valuable religious practices adequately; religious freedom is rooted in a sectarian view that religion itself is a special good; and the privileges of religious freedom treat non-religious citizens unfairly Let me explain these in more detail
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