Monday, February 15, 2010
And this is what I have to say:
"If the only rationale for concluding that a coercive and/or discriminatory law serves a legitimate and sufficiently weighty governmental interest—the only rationale, that is, other than an implausible secular rationale—is a religious rationale, then the law violates the right to freedom of religion, which includes, after all, not only freedom to practice one's own religion (if one has a religion) but also freedom not to practice someone else's religion—or, indeed, any religion at all. Freedom not to practice someone else's religion includes, of course, freedom not to be punished or discriminated against based on one's refusal to practice someone else's religion. A coercive and/or discriminatory law for which the only rationale, other than an implausible secular rationale, is religious imposes religion on those the law coerces or against whom it discriminates; such a law . . . 'enforce[s] a purely religious morality [and thereby] unacceptably impose[s] religion on others.'"
Perry, The Political Morality of Liberal Democracy 119 (2010) (quoting Kent Greenawalt, “History as Ideology,” 93 California L. Rev. 367, 390-91 (2005)). See also Kent Greenawalt, 2 Religion and the Constitution: Establishment and Fairness 533 (2008).