Three Theories of Religious Equality...and of Exemptions
Abner S. Greene
Fordham University School of Law
Texas Law Review, Vol. 87, No. 963, 2009
Fordham Law Legal Studies Research Paper No. 1400138
This review essay describes and critiques three theories of religious equality, and related theories of religious exemptions. Brian Barry offers a formal equality view, which would override any argument for religious distinctiveness. Chris Eisgruber and Larry Sager offer a theory of “equal liberty,” which permits religious exemptions - but not as such, rather, only through showing a kind of vulnerability to majoritarian disfavor, a showing that could be made for secular belief or practice as well. Finally, Martha Nussbaum develops a view similar to that of Justice Brennan and Judge McConnell, what one might call an equal opportunity to practice religion. Here, religious exemptions are sometimes warranted because of what is distinctive - or special - about religion. This essay supports, for the most part, the Nussbaum position, arguing for special treatment for claims of religious exemption. I critique Barry’s argument as insufficiently attentive to vulnerable nomic minorities, and critique Eisgruber and Sager’s argument as insufficiently attentive to what makes religion special. Along the way I discuss the question of reductionism in constitutional theory, i.e., the kind of argument that would take a word such as “religion” in the First Amendment and treat it as a place-holder for broader or deeper values.
Number of Pages in PDF File: 46Accepted Paper Series
Date posted: May 6, 2009
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