The Law of Religious Liberty in a Tolerant Society

Abstract

This is a draft of the final chapter of my forthcoming book WHY TOLERATE RELIGION? Earlier versions of material in the first part of the book appear on SSRN as Why Tolerate Religion? (Constitutional Commentary, 2008) and Foundations of Religious Liberty: Toleration or Respect? (San Diego Law Review, 2010) (the account of religion has changed somewhat since these two papers). The two main conclusions from earlier in the book that are presupposed in this draft chapter are that: (1) the moral value of liberty of conscience is not specific to claims of conscience; and (2) there are claims of conscience that are not in character (however precisely religion is understood). Principled requires that a dominant group, with the means to stamp out or repress disfavored beliefs of others, nonetheless recognize that there are good moral reasons to permit such beliefs to be held and expressed (subject to the limits imposed by the Harm Principle). The draft chapter explores the question: what should become of the law of religious liberty in light of these conclusions? Should we opt for a scheme of universal exemptions for claims of conscience, or are there reasons to think that no exemptions for claims of conscience, religious or otherwise, are justified? The relation between toleration and religious establishment is also discussed.