Wednesday, July 11, 2012
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.