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July 11, 2012

What is the Place and Impact of Justification?

As Rick has kindly noted, Steve Smith has posted several interesting thoughts about religious liberty over at CLR Forum.  One issue that we are considering together is the question of whether the special constitutional protection for religious liberty can be justified today, and what that justification might be.  Steve has lots of important and thoughtful writing on this question.  But there is a specific question I wanted to put to MOJ readers and writers.  Please forgive the wind-up.

Steve notes Doug Laycock's excellent recent piece titled, Sex, Atheism, and the Free Exercise of Religion.  In that article, Doug (as Steve explains) describes important sources of resistance to religious liberty as coming from the gay rights movement as well as increasing numbers of non-believers.  Because religious people are often seen as the enemy by these groups, religious liberty is also seen as something to be opposed.  Steve points out that the perception by Doug Laycock that religious liberty is under threat ought to carry weight for those who might otherwise be skeptical about similar claims made by other folks.

But my question actually has to do with a somewhat different issue.  Steve says that the sorts of real problems described by Doug are an indication that devising new, contemporary justifications for religious liberty is not merely an academic exercise, but that it is made urgent by the very real problems we face today.  I've got a little comment to Steve's post wondering about this.  Is it true that what is needed are new justifications for religious liberty -- new philosophical defenses, updated for the problems and opinions of today?  If the aim is to persuade those who disagree deep, deep down about all sorts of fundamental questions that religious liberty actually is important, is a new theoretical justification what is required?  Or are the fundamental disagreements that we have at bottom matters of intuition, identity, group loyalty, and emotion, and therefore often largely impervious to and unconcerned with the type of high-conceptual discourse that is so central to the academic enterprise?  Or is it something in between, or perhaps different altogether?  Again, if the issue is persuasion, what is the most effective method of achieving it?   

UPDATE: Paul Horwitz has some interesting things to say here

Posted by Marc DeGirolami on July 11, 2012 at 10:22 PM in DeGirolami, Marc | Permalink

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The problem with developing a "new" justification for religious liberty is whether or not we want to embrace the vocabulary in which it would have to be made. I certainly would not be comfortable going out and espousing post-modernist views or making post-modernist arguments to shore up support for my decidedly pre-modern religious practices or my quasi-modern belief in religious liberty. Indeed, I am not sure that updated philosophical systems, to the extent that the phrase is anything other than a contradiction in terms, will even accommodate such arguments.

Furthermore, I am inclined to agree that contemporary opposition to religious freedom is largely impervious to philosophical argument. To the extent that such opposition, even among those inclined towards and capable of engaging in conceptual discourse on the topic, is philosophical and not emotive, it is probably a necessary conclusion from the core fundamental premises of the philosophical system relied upon by those espousing it.

Posted by: Titus | Jul 12, 2012 10:22:48 AM

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