Two Concepts of Liberalism

Abstract

This essay was sparked in part by my long-standing interest in the case of Wisconsin v. Yoder, decided two decades ago.' This case presented a clash between a Wisconsin state law, which required school attendance until age sixteen, and the Old Order Amish community, which claimed that high school attendance was contrary to their religion and would impede them in the constitutionally guaranteed free exercise thereof. The majority of the Court argued that, as a general matter, free exercise must take precedence unless confronted with compelling state interests and that, in the case at hand, Wisconsin had failed to make out a plausible case that its undoubtedly genuine interests ought to be regarded as compelling. Let me state straightaway that I think Yoder was correctly decided, certainly from the standpoint of unfettered equity and (if we are to be guided by Michael McConnell's recent work on the origins and historical development of the Free Exercise clause) from the constitutional standpoint as well.2 This essay may be understood as an effort to say why I believe the Yoder holding was philosophically correct and to explore the wider implications of this judgment for the theory and practice of contemporary liberal democratic citizenship. To help frame the discussion, I should observe that the Yoder decision has been attacked from two opposing directions. Many conservatives have charged that Yoder's expansive conception of free exercise, in which the state must make affirmative exemptions for particular religions from otherwise generally valid laws, is a formula for state impotence and even social chaos. In the 1990 case