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No Tears for Creon

Marc O. DeGirolami

St. John's University - School of Law

February 15, 2010

Legal Theory, Forthcoming
St. John's Legal Studies Research Paper No. 1553578

This essay critiques Professor Martha Nussbaum’s book, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA’S TRADITION OF RELIGIOUS EQUALITY (2008). Nussbaum’s thesis is that the entire tradition of religious liberty in America can be both best understood (as a historical exercise) and justified (as a philosophical one) by recourse to the overarching principle of “Equal Respect” – that “[a]ll citizens have equal rights and deserve equal respect from the government under which they live.” Nussbaum insists that Equal Respect pervades the tradition and that all other values of religious liberty are subordinate to it. She examines various free exercise and establishment issues in light of this principle, concluding that the tradition of religious equality is under threat and calling for renewed vigilance in its defense.

This piece criticizes Nussbaum’s elevation of the principle of Equal Respect to supreme normative status. It claims that Nussbaum’s single-minded focus on Equal Respect distorts and misunderstands the conflicts actually at issue in many religious liberty disputes. The essay focuses specifically on the inadequacies of her assessment of two prominent religious liberty cases, one in the free exercise and the other in the establishment context. The essay concludes that there are reasons for deep skepticism about Nussbaum’s approach as a comprehensive theory of the religion clauses.

Number of Pages in PDF File: 22

Keywords: Religious Liberty, Legal Theory

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Date posted: February 16, 2010  

Suggested Citation

DeGirolami, Marc O., No Tears for Creon (February 15, 2010). Legal Theory, Forthcoming; St. John's Legal Studies Research Paper No. 1553578. Available at SSRN: https://ssrn.com/abstract=1553578

Contact Information

Marc O. DeGirolami (Contact Author)
St. John's University - School of Law ( email )
8000 Utopia Parkway
Jamaica, NY 11439
United States
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