Tuesday, February 3, 2009

Garnett:At its fullest, the American model of religious liberty is not a freedom from religion or a freedom of religion; it is a freedom for religion.

Notre Dame Law Prof. Rick Garnett, a friend of the Center, writes a think piece on The Public Discourse that carefully distinguishes between three rival versions of American religious liberty: freedom from religion, freedom of religion, and freedom for religion.

Note his interesting discussion of the strengths and weaknesses of a freedom of religion position:

The second approach—“freedom of religion”—tends to emphasize toleration, neutrality, and equal-treatment. Religion, on this view, is something that matters to many people, and so the law does not permit it to be singled out for special hostility or discrimination. It is recognized and accepted that religious believers and institutions are at work in society, and the stance of the law is even-handedness. Because we are all entitled to express our views and to live in accord with our consciences, religious believers are so entitled, too. The law, it is thought, should be “religion-blind.”

Although this approach is not hostile to religion, it is also reluctant to regard religion as something special. Religious liberty is just “liberty,” and liberty is something to which we all have an “equal” right. Religion is not something to be “singled out,” for accommodations and privileges, or for burdens and disadvantages. Again, religious commitment, expression, and motivation are all, in the end, matters of taste and private preference.

This approach represents an improvement on its “freedom from” competitor, and it, too, has been and is reflected in American law. In fact, it is fair to say that its influence is much more pronounced in the Supreme Court’s recent decisions. The Justices have emphasized, for example, that officials may not treat religiously-motivated speech worse than speech that reflects other viewpoints. Similarly, courts have ruled that public funds may be allocated to religiously affiliated schools and social-welfare agencies—so long as they are providing a secular public good—on the same terms as non-religious ones. At the same time, governments are not required to provide special accommodations for religious believers, or to exempt religiously motivated conduct from the reach of generally applicable laws.