Neutrality and the Religion Analogy

28 Pages Posted: 4 Aug 2014 Last revised: 11 Sep 2014

Date Written: July 30, 2014

Abstract

Neutralitarian liberalism, which holds that the state should be neutral toward controversial conceptions of the good, is often defended as a generalization from religious liberty. The analogy misapprehends the core case upon which it is based. The American tradition of freedom of religion itself rests on a controversial conception of the good: the idea that religion is valuable and that legal rules should be crafted for the purpose of protecting that value.

Disestablishment of religion entails a kind of neutrality toward certain contested conceptions of the good. The state may not favor one religion over another. It also may not take a position on contested theological propositions. The justification of this neutrality, however, is not itself neutral. Free exercise and disestablishment are both devices for promoting religion. Perhaps that exercise of state authority is unjust to nonreligious views, but the case for holding it to be so can find no support in the tradition of religious toleration.

I close with a reconstruction of Rawls that could accommodate the missing item, and some reflections on why these weak arguments have persuaded so many people.

Keywords: Neutrality, liberalism, Rawls, Dworkin

Suggested Citation

Koppelman, Andrew M., Neutrality and the Religion Analogy (July 30, 2014). APSA 2014 Annual Meeting Paper; Northwestern Public Law Research Paper No. 14-44. Available at SSRN: https://ssrn.com/abstract=2454399 or http://dx.doi.org/10.2139/ssrn.2454399

Andrew M. Koppelman (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8431 (Phone)

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