Freedom of Religion, Inc.: Whose Sovereignty?

42 Pages Posted: 19 Oct 2015

See all articles by Jean Cohen

Jean Cohen

Columbia University - Department of Political Science

Date Written: October 19, 2015

Abstract

This article focuses on an expansive conception of religious freedom propagated by a vocal group of American legal scholars – jurisdictional pluralists – often working with well-funded conservative foundations and influencing accommodation decisions throughout the US. I show that the proliferation of ‘accommodation’ claims in the name of church autonomy and religious conscience entailing exemption from civil regulation and anti-discrimination laws required by justice have a deep structure that has little to do with fairness or inclusion or liberal pluralism. Instead they are tantamount to sovereignty claims, involving powers and immunities for the religious, implicitly referring to another, higher law and sovereign than the constitution or the people. The twenty-first century version of older pluralist ‘freedom of religion’ discourses also rejects the comprehensive jurisdiction and scope of public, civil law – this time challenging the ‘monistic sovereignty’ of the democratic constitutional state. I argue that the jurisdictional pluralist approach to religious freedom challenges liberal democratic constitutionalism at its core and should be resisted wherever it arises.

Suggested Citation

Cohen, Jean, Freedom of Religion, Inc.: Whose Sovereignty? (October 19, 2015). Available at SSRN: https://ssrn.com/abstract=2676141 or http://dx.doi.org/10.2139/ssrn.2676141

Jean Cohen (Contact Author)

Columbia University - Department of Political Science ( email )

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United States

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