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“Religion” As A Bundle Of Legal Proxies: Reply To Micah Schwartzman, Andrew Koppelman
“Religion” As A Bundle Of Legal Proxies: Reply To Micah Schwartzman, Andrew Koppelman
San Diego Law Review
The debate among legal scholars about whether religion is special is chronically confused by the scholars’ failure to grasp a point familiar in the academic study of religion: “religion” is a label for something that has no ontological reality. Religion has no essence. If it has a determinate meaning, it is simply because there is a settled and familiar practice of applying the label of religion in predictable ways. The question of religious accommodation arises in cases where a law can allow some exceptions. Many laws, such as military conscription, taxes, environmental regulations, and antidiscrimination laws, will accomplish their ends …
Where's The Beef?, Stanley Fish
Where's The Beef?, Stanley Fish
San Diego Law Review
A key concern of the papers written for this conference is the relationship between religious beliefs and secular beliefs of the kind that carry with them deep ethical obligations. Are these systems of belief essentially the same or are they different in important respects? The question is typically posed abstractly, and I thought it might be useful to have before us an example of religious belief and the demands that attend it. The example is taken from the beginning of John Bunyan’s The Pilgrim’s Progress. Christian, Bunyan’s protagonist, has suddenly become aware that his salvation is imperiled, and he is …
Religion And Insularity: Brian Leiter On Accommodating Religion, Christopher J. Eberle
Religion And Insularity: Brian Leiter On Accommodating Religion, Christopher J. Eberle
San Diego Law Review
Crucial to Leiter’s overall case is the claim that there is no credible reason to accommodate religious objectors but not secular objectors: “[N]o one has been able to articulate a credible principled argument . . . that would explain why . . . we ought to accord special legal and moral treatment to religious practices.” He reaches this skeptical conclusion, in significant part, because he takes religion to be afflicted with a troubling defect, that is, religion involves commitment to categorical demands that are insulated from scientific and commonsensical scrutiny. But, I will argue, there is no good reason to …
Why Distinguish Religion, Legally Speaking?, Winnifred Fallers Sullivan
Why Distinguish Religion, Legally Speaking?, Winnifred Fallers Sullivan
San Diego Law Review
Law professors commonly answer this critique by scholars of religion, as Andrew Koppelman does, with the comment that, after all, any ambiguity in definition only arises in a few cases. Most of the time the reference is obvious, he says. Moreover, he insists, it has worked fine for all those for whom it should work. But that is the problem—its very obviousness. The problems of exclusion are largely invisible. The reference is so obvious to many and so obviously inclusive of those who are deserving that there is no way to have a conversation about it without the conversation devolving …
Religion, Conscience, And The Case For Accommodation, William A. Galston
Religion, Conscience, And The Case For Accommodation, William A. Galston
San Diego Law Review
I do not believe that religion is an obsolete constitutional category. But I do believe that the holdings in United States v. Seeger and Welsh v. United States, the Vietnam-era draft cases that extended conscientious objector status to individuals invoking nonreligious claims, were correct. Can I consistently embrace both propositions? I think I can. My argument, in brief, is that religion is indeed special. But when we understand what it is about religion that warrants both distinctive privileges and distinctive burdens, we will see that some other systems of belief track these features of religion closely enough to warrant comparable …
Galston On Religion, Conscience, And The Case For Accommodation, Larry Alexander
Galston On Religion, Conscience, And The Case For Accommodation, Larry Alexander
San Diego Law Review
So these are some reasons why political theory might dictate that religious dissenters be accommodated even though, by enacting the laws to which the dissenters object, government indicates that it believes the dissenters err. If political theory justifies religious accommodations, however, then when government acts on the basis of political theory, is it establishing a religion? Bill argues, in support of Seeger, that claims of conscience derived from moral theory can qualify for accommodations under the Free Exercise Clause. But the two religion clauses in the Constitution use the noun “religion” only once. So if claims of conscience derived from …
Religion, Meaning, Truth, Life, Frederick Mark Gedicks
Religion, Meaning, Truth, Life, Frederick Mark Gedicks
San Diego Law Review
I am a believer, yet I will also say that it is simply not correct that only religion can offer deep meaning to life, and I can say this out of my own experience. Ordinary activities can be crucial to the meaning of one’s life, whether or not they are experienced or defined as “religious.” Though not all such activities are as morally serious as religious belief and practice, some are, and they are surely not “nihilistic” or “nothing” because they lack the character of transcendent religious truth.
Religion As A Legal Proxy, Micah Schwartzman
Religion As A Legal Proxy, Micah Schwartzman
San Diego Law Review
In what follows, after briefly summarizing Koppelman’s position, I argue that his view is vulnerable to the charge that using religion as a legal proxy is unfair to those with comparable, but otherwise secular, ethical and moral convictions. Koppelman has, of course, anticipated this objection, but his responses are either ambivalent or insufficient to overcome it. The case for adopting religion as a proxy turns partly on arguments against other potential candidates. In particular, Koppelman rejects the freedom of conscience as a possible substitute. But even if he is right that its coverage is not fully extensive with the category …
How Much Autonomy Do You Want?, Maimon Schwarzschild
How Much Autonomy Do You Want?, Maimon Schwarzschild
San Diego Law Review
At root, the questions of special accommodation and religious adjudicatory independence arise most urgently when a government grows in its reach and ambition. After all, if most areas of life, including those that touch on religious life, are left to people’s private arrangement, then not much special accommodation will be necessary. But when government takes control over more and more areas of life, regulating who shall do what and under what rules and conditions, then clashes with one or another religious way of life are almost inevitable. The dispute over government mandates to provide abortive drugs and contraception, in the …
The Pope's Submarine, John H. Garvey
The Pope's Submarine, John H. Garvey
San Diego Law Review
This Article looks at the conflict between religious authority and liberal politics from a point of view within the Catholic Church. It examines the grounds of the teaching authority asserted by the Church, the scope and strength of that authority, and the possibility that obedience to authority will create dilemmas for religiously committed public officials. For purposes of illustration it uses New York Governor Mario Cuomo's religious and political observations on the subject of abortion.
Contexts Of The Political Role Of Religion: Civil Society And Culture, David Hollenbach S.J.
Contexts Of The Political Role Of Religion: Civil Society And Culture, David Hollenbach S.J.
San Diego Law Review
This Article argues that we need to frame the question of the relation of religion to public life in a way that goes beyond discussion of the direct impact of religious convictions on policy choices. The Article considers religion's public influences, such as its influence on the multiple communities and institutions of civil society and on the public self-understanding of a society called culture. In considering these influences, the author offers a new perspective on the role of religious belief in the decisions of those who draft legislation, reach judicial decisions, administer the domestic and foreign affairs of the nation, …
Religion And Public Debate In A Liberal Society: Always Oil And Water Or Sometimes More Like Rum And Coca-Cola, Maimon Schwarzschild
Religion And Public Debate In A Liberal Society: Always Oil And Water Or Sometimes More Like Rum And Coca-Cola, Maimon Schwarzschild
San Diego Law Review
This Article analyzes the role of religion during the Enlightenment, particularly focusing on the negative views toward Christianity. The author explores the reasons why Christianity was not embraced by Enlightenment thinkers, and attempts to relate this to the modern view of religion. Where religious thinking posed a considerable threat to institutions in the era of Enlightenment, religious thinking arguably does not pose such a threat in modern times. The author concludes with an argument that the presence of religion in modern society strengthens pluralism, and thus strengthens liberal society itself.