Deliberating the Divine: On Extending the Justification from Truth to Religious Expression

90 Pages Posted: 17 Jan 2008  

John M. Kang

St. Thomas University School of Law

Abstract

The principal argument used by the U.S. Supreme Court to justify the right of free speech derives from the assumption that deliberation over a diversity of perspectives is more likely than their paucity to help the audience discover some provisional truth. I call this the justification from truth and its advocates are plentiful and prominent, including justices Oliver Wendell Holmes, Jr. and Louis Brandeis as well as the philosophers John Stuart Mill and John Milton.

Puzzlingly, the Court has generally avoided applying this justification to religious expression and neither the Court nor any scholar has offered a sufficiently developed account of what an application of the justification from truth to religious expression might look like. I attempt to do so in this article. The justification from truth is one of the most discussed topics for law since the European Enlightenment and the topic of religion has obviously provoked voluminous discussion. I hope to offer in my article a novel and engaging conceptual bridge between these two categories that will be of interest to scholars who study constitutional law as well as to those who study church-state relations and the many readers who find intriguing questions about the search for religious truth. I employ a series of case suites in the latter part of the article manuscript to illustrate how the justification from truth can be applied to religious expression, and it is my hope that such case suites will serve as a useful practical guide to judges.

Keywords: Deliberation, religion, truth, constitutional law, establishment clause, free exercise clause

Suggested Citation

Kang, John M., Deliberating the Divine: On Extending the Justification from Truth to Religious Expression. Brooklyn Law Review, Vol. 73, No. 1, 2007. Available at SSRN: https://ssrn.com/abstract=1084967

John M. Kang (Contact Author)

St. Thomas University School of Law ( email )

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