Monday, June 27, 2011
Like Steve, and Marc, I attended last week the (second) Annual Law and Religion Roundtable, in Chicago, which was organized by Nelson Tebbe, Paul Horwitz, and me, and generously hosted by Andy Koppelman and Northwestern University. It was a great event -- many interesting, provocative, engaging papers; good friends and fellowship; and a beautiful city. I'm sure other MOJers who were there will chime in, too (hint, hint), but I agree with Steve about the two (related) questions / themes that seemed to run through the event: (1) "Is religion special?" and (2) "How should we think about the religious freedom of groups / communities / associations . . . churches?" As you might guess, the upcoming Hosanna-Tabor case came up often.
Two quick thoughts: First, I think we should never be *too* confident in our ability to identify clean lines between "religion" and "the secular" -- let alone "religion" and "nonreligion." I do not know what "nonreligion" is. To be sure, there's no getting around the fact that we have to construct (even if we cannot identify) categories of religion's "free exercise" and "establishment" in order to interpret and apply our Constitution, but the idea that we can distinguish between, say, "religious" reasons for legislation and "moral-but-secular" reasons seems implausible to me.
Second, with respect to Steve's statement that "religious claims for exemptions should clearly be honored over general liberty claims, but I see no good argument for honoring religious claims for exemptions over non-religious claims of conscience." I guess, for me, it depends on what is meant by "over." I think that the First Amendment gives us good reasons for treating "religion" and "religious" claims of conscience (see above, though, re: "religious") over other "conscience"-based claims. The latter category, it seems to me, will be taken seriously by, and accommodated to the extent possible by, a decent political community, not because they are the same as religious claims, but because such a community should, to the extent possible, avoid causing pain and suffering to its members.