Discourse in the Dusk: The Twilight of Religious Freedom
Steven Douglas Smith
University of San Diego School of Law
Harvard Law Review, Vol. 122, p. 1869, 2009
San Diego Legal Studies Paper No. 09-016
This essay argues that the Western tradition of discourse about church-state separation and freedom of conscience, which began a millennium ago, has reached a point of exhaustion. The tradition arose on the Christian assumption that life has a temporal dimension and a spiritual dimension, each governed by an institutional authority: the 'secular' ruler governed the temporal and the church represented the spiritual domain. Thus, the debate was essentially a theological debate about the providential allocation of jurisdiction between different institutional authorities. The commitment to freedom of conscience arose as, in the post-Reformation period, the individual conscience came to assume the role formerly occupied by the church: thus, especially in Protestant regions, the medieval campaign for 'freedom of the church' evolved into a commitment to 'freedom of conscience.' In the modern context, however, the discourse has been transformed: the theological framework has given way to a secular one, and the debate over jurisdictions has been replaced by a debate over justice. In this context, the classical commitments to church-state separation and freedom of conscience lose their rationales; indeed, it becomes difficult to explain why 'religion' (whatever it is) should be a special legal category at all. The much noted incoherence in the modern jurisprudence of religious freedom is a product of this drastically altered situation.
After developing this diagnosis, this essay uses the diagnosis to assess Kent Greenawalt’s recent book, Religion and the Constitution: Establishment and Fairness. The review argues that on one level, Greenawalt’s book is exemplary; it is a model of careful, fair-minded reason. However, the book conspicuously defaults on the basic level of justification, and this review argues that this default is a faithful reflection of the exhausted condition of the tradition in which Greenawalt is working.
Number of Pages in PDF File: 40
Keywords: freedom of religion, freedom of conscience, separation of church and state
JEL Classification: K10, K39Accepted Paper Series
Date posted: July 8, 2009
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