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Neutrality and the Good of Religious Freedom: An Appreciative Response to Professor Koppelman

Richard W. Garnett

Notre Dame Law School

May 22, 2012

Pepperdine Law Review, Vol. 39, p. 1001, 2012
Notre Dame Legal Studies Paper No. 12-63

This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.

Religious freedom, in the American tradition, is not what results from the operationalization in law of hostility toward religion. It is not (only) what results from a program of conflict-avoidance or division-dampening. It is not merely the product of those compromises that were necessary to secure the ratification of the original Constitution. It is, instead, a valuable and necessary feature of any attractive legal regime, because it reflects, promotes, and helps to constitute human flourishing. So, and again, the state should remain “neutral” with respect to most religious questions – primarily because the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities – but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.

Number of Pages in PDF File: 11

Keywords: Andrew Koppelman, Neutrality, First Amendment, Religious Freedom, Religious Liberty, Free Exercise, Establishment Clause, Judicial Review

JEL Classification: K10, K19, K30

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Date posted: May 22, 2012  

Suggested Citation

Garnett, Richard W., Neutrality and the Good of Religious Freedom: An Appreciative Response to Professor Koppelman (May 22, 2012). Pepperdine Law Review, Vol. 39, p. 1001, 2012; Notre Dame Legal Studies Paper No. 12-63. Available at SSRN: http://ssrn.com/abstract=2064866

Contact Information

Richard W. Garnett (Contact Author)
Notre Dame Law School ( email )
Room 327
P.O. Box 780
Notre Dame, IN 46556-0780
United States
574-631-6981 (Phone)
574-631-4197 (Fax)

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