Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, May 18, 2012

Paulsen's Theory of Religious Liberty: "The Priority of God"

Prof. Michael Stokes Paulsen (St. Thomas) has posted a new paper, "The Priority of God:  A Theory of Religious Liberty."  Check it out.  Here is the abstract:

Professor Paulsen argues that religious freedom only makes entire sense as a constitutional arrangement on the premise that God exists, that God makes actual demands on human loyalty and conduct, and that those demands precede and are superior in obligation to those of the State. Religious freedom exists to protect the exercise of plausibly true understandings of God's actual commands, as against state power, and to disable state power to proscribe -- or prescribe -- religious exercise. The article explores four possible stances of society toward religious freedom, depending on whether society and state embrace the idea of religious truth (or not) and whether society and state embrace the idea of religious tolerance (or not). It then argues that America's Constitution's religion clauses, in their original conception, are predicated in a belief in the possibility of religious truth and the imperative of religious tolerance so that the state does not interfere with private individuals' and groups' pursuit of truth. This perspective illuminates many of the issues that have plagued interpretation of the First Amendment religion clauses.

Looks to me like a must-read. 

https://mirrorofjustice.blogs.com/mirrorofjustice/2012/05/paulsens-theory-of-religious-liberty-the-priority-of-god.html

Garnett, Rick | Permalink

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I’ll have to read Professor Paulson’s paper, but if his thesis is that “that religious freedom only makes entire sense as a constitutional arrangement on the premise that God exists, that God makes actual demands on human loyalty and conduct, and that those demands precede and are superior in obligation to those of the State” then the good Professor has blundered. This thesis does not explain how the State can protect persons from the religiously motivated acts of others; such protections are themselves obligations imposed by the State which would be trumped by religious demands.

The abstract concludes that Paulson argues, “that America's Constitution's religion clauses, in their original conception, are predicated in a belief in the possibility of religious truth and the imperative of religious tolerance so that the state does not interfere with private individuals' and groups' pursuit of truth.” This is a good conclusion, but it is not premised on the belief that God exists. Between these two thoughts is not a little incoherence.

To make religious freedom sensible as a constitutional arrangement, it is necessary that the State stand apart from purely religious concepts such as the question of God’s existence. The proper premise for the State is the premise that the God might exist and the State is incompetent to say more. If God exists, God might make actual demands on human loyalty and conduct, and the State cannot infringe on these duties without good cause. But when the practices of some interfere with the beliefs and practices of others, the State must interfere so as to protect ‘private individuals’ and groups’ pursuit of truth.’”

In any event, I’ve downloaded the paper, it should be interesting.

Posted by: sean m. samis | May 22, 2012 1:24:45 PM