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Discourse in the Dusk: The Twilight of Religious Freedom


Steven Douglas Smith


University of San Diego School of Law

2009

Harvard Law Review, Vol. 122, p. 1869, 2009
San Diego Legal Studies Paper No. 09-016

Abstract:     
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has been transformed: the theological framework has given way to a secular one, and the debate over jurisdictions has been replaced by a debate over justice.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, K39

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Date posted: July 8, 2009  

Suggested Citation

Smith, Steven Douglas, Discourse in the Dusk: The Twilight of Religious Freedom (2009). Harvard Law Review, Vol. 122, p. 1869, 2009; San Diego Legal Studies Paper No. 09-016. Available at SSRN: http://ssrn.com/abstract=1431556

Contact Information

Steven Douglas Smith (Contact Author)
University of San Diego School of Law ( email )
5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-7969 (Phone)
619-260-2492 (Fax)
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