Document Type

Working Paper

Publication Date

5-13-2014

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; AARN Subject Matter eJournals; Cognitive Science Network; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network; Political Science Network; Anthropology & Archaeology Research Network

Abstract

In his final book Religion Without God Ronald Dworkin offers an eloquent and gloriously compact treatment of a massive subject life death eternity and the human condition He also offers an application of his views on those broader questions to a narrower more practical issue the law of religious freedom In this paper I focus narrowly and critically on Dworkins treatment of the law of religious freedom Dworkin asks whether there is a principled justification for offering religion a right to special protection that is exclusive to theistic religions and if not what the scope and nature of religious freedom should be He ultimately proposes in effect to interpret religion broadly for purposes of freedom of religion but demote that freedom altogether He would treat freedom of religion as a very general right to what we might call ethical independence rather than as a special right As such subject to some constraints government could infringe freedom of religion without having to show a compelling interest in doing so Dworkin would also it appears substantially limit the occasions on which government can or should provide legislative accommodations for burdened religious practices What we have when Dworkin is done is basically a narrow version of the Supreme Courts decision in Employment Division v Smith but without that decisions receptivity to legislative rather than judicial accommodation of religionThere is much to admire in Dworkins broader arguments about religion in the book His arguments about the law of religious freedom are quite another matter The accuracy and persuasiveness of Dworkins arguments on this issue rest substantially on three things his statements about current law the initial moves by which Dworkin clears the ground for his demotion proposal and his applications of the demotion proposal which he suggests could help lower the temperature of the culture wars I argue that all three elements of Dworkins argument for the demotion of religious freedom are deeply flawed

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