Why Rawls Can't Support Liberal Neutrality: The Case of Special Treatment for Religion

Abstract

Some arguments against the law’s special treatment of religion are adapted from Rawls. These overlook the ways in which the abstract rights agreed to in the original position are given specific institutional form at the constitutional stage. Because the rights established in the original position are vaguely specified, liberty of conscience can’t be implemented without reliance on contestable values such as religion. Public reason, when refracted through the four-stage sequence (where it becomes less constraining at each stage of the sequence), is far less constraining than the proponents of liberal neutrality hope. Fulfilling the commitments made in the original position, for people in the world here and now, requires taking account of the values that those people hold. A Rawlsian position thus can support the American regime of religious accommodation.

Keywords: Rawls, religion, neutrality, conscience

JEL Classification: K10, K30