Friday, November 09, 2018

How Could Religious Liberty Be a Human Right?

Andrew Koppelman

A growing number of scholars think “religious liberty” is a bad idea.  The unfairness objection is that singling out religion for special protection is unjust to comparable nonreligious conceptions of the good.  The distraction objection asserts that religious liberty is a misleading lens: oppression sometimes occurs along religious lines, but the underlying conflicts often are not really about religious difference.  Both objections are sound, but under certain conditions religious liberty should nonetheless be regarded as a right.  Law is inevitably crude.  The state cannot possibly recognize each individual’s unique identity-constituting attachments.  It can, at best, protect broad classes of ends that many people share.  “Religion” is such a class.  Where it is an important marker of identity for many people, it is an appropriate category of protection.

That's the argument of my newly published article in the International Journal of Constitutional Law, here.  The same issue of the journal has a critical response by Prof. Gita Stopler, here, with a rejoinder by me, here.

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