Tuesday, January 22, 2013
As my friend and former student, Prof. Derek Muller, reports at Prawfsblawg, the various papers presented last winter at Pepperdine at an outstanding law-and-religion conference have been published by the Pepperdine Law Review. (Go to Derek's post for a list of all the presenters, and links to the papers.) My own, "Neutrality and the Good of Religious Freedom: An Appreciative Response to Prof. Koppelman," is here:This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality
in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The
Competing Claims of Law and Religion: Who Should Influence Whom?”, which was
held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.
Religious freedom, in the American tradition, is not what results from the operationalization in law of hostility toward religion. It is not (only) what results from a program of conflict-avoidance or division-dampening. It is not merely the product of those compromises that were necessary to secure the
ratification of the original Constitution. It is, instead, a valuable and necessary feature of any attractive legal regime, because it reflects, promotes, and helps to constitute human flourishing. So, and again, the state should remain “neutral” with respect to most religious questions – primarily because
the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities – but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.