Reply: Conscience and Equality

31 Journal of Civil Rights and Economic Development 1 (2018)

Cornell Legal Studies Research Paper 18-11

70 Pages Posted: 13 Feb 2018 Last revised: 29 Jun 2018

Date Written: February 1, 2018

Abstract

The Journal of Civil Rights and Economic Development has solicited six thoughtful reviews of my book, Religious Freedom in an Egalitarian Age. In this Reply, I explore some larger questions that fall outside the book's focus on the tension between religious freedom and civil rights law. Prompted by the reviews, but also independent of them, I examine the implications of my arguments for an egalitarian theory of the First Amendment. Part I begins by addressing critical theorists of religion. I agree with them that the category of religion is essentially contested and can only be defined for particular purposes in particular institutional settings. An implication is that the category of religion can, and often should, include beliefs and practices that usually are considered nonreligious. That raises the related question of whether religion ought to receive special solicitude in constitutional law. I address that issue in Part II, where I argue explicitly that we lack good reasons to exclude certain convictions of conscience from most areas of religious freedom doctrine. On this issue, one of the reviews demonstrates a significant development in the literature, namely growing agreement that conscience may be protected alongside religion without serious conceptual or practical difficulties. Part III concerns a question that follows naturally: In a world where religion is seldom special, how should we conceptualize First Amendment law? Unlike some other egalitarians, I do not propose to eliminate religious exemptions from general laws. Nor do I argue that the Establishment Clause should be weakened or underenforced. Instead, I suggest a framework of full and equal membership. Although this short Reply cannot fully solve all the problems raised by that vision, it can indicate that those problems are solvable in future work. Before concluding, the Reply addresses the argument that equal standing is threatened on both sides, it considers the allure of compromise solutions, and it corrects some misconceptions about the book's methodology.

Keywords: Equality, Conscience, civil rights, egalitarian, first amendment, constitutional law, Establishment Clause, marriage, gender identity, employment discrimination law, religious freedom, jurisprudence, Critical Theories, Political Theory, Freedom of Association, argument from symmetry

Suggested Citation

Tebbe, Nelson, Reply: Conscience and Equality (February 1, 2018). 31 Journal of Civil Rights and Economic Development 1 (2018); Cornell Legal Studies Research Paper 18-11. Available at SSRN: https://ssrn.com/abstract=3116323

Nelson Tebbe (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States
(607) 255-3506 (Phone)

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