Foundations of Religious Liberty: Toleration or Respect?
University of Chicago
September 16, 2009
U of Chicago, Public Law Working Paper No. 275
San Diego Law Review, Forthcoming
Should we think of what I will refer to generically as “the law of religious liberty” as grounded in the moral attitude of respect for religion or in the moral attitude of tolerance of religion? I begin by explicating the relevant moral attitudes of “respect” and “toleration.” With regard to the former, I start with a well-known treatment of the idea of “respect” in the Anglophone literature by the moral philosopher Stephen Darwall. With respect to the latter concept, toleration, I shall draw on my own earlier discussion, though now emphasizing the features of toleration that set it apart from one kind of respect. In deciding whether “respect” or “toleration” can plausibly serve as the moral foundation for the law of religious liberty we will need to say something about the nature of religion. I shall propose a fairly precise analysis of what makes a belief and a concomitant set of practices “religious” (again drawing on earlier work). That will then bring us to the central question: should our laws reflect “respect” for religion” or only “toleration”? Martha Nussbaum has recently argued for “respect” as the moral foundation of religious liberty, though, as I will suggest, her account is ambiguous between the two senses of respect that emerge from Darwall’s work. In particular, I shall claim that in one “thin” sense of respect, it is compatible with nothing more than toleration of religion; and that in a “thicker” sense (which Nussbaum appears to want to invoke), it could not form the moral basis of a legal regime since religion is not the kind of belief system that could warrant that attitude. To make the latter case, I examine critically a recent attack on the idea of "respect" for religious belief by Simon Blackburn.
This is the penultimate version of a paper that will appear in a symposium issue of the San Diego Law Review on the topic "Freedom of Conscience."
Number of Pages in PDF File: 31
Keywords: religion, toleration, respect, Nusbaum, Darwall, Blackburn
Date posted: September 18, 2009 ; Last revised: June 22, 2010