Over at Mirror of Justice, Matt Lister posted a smart, critical reaction to my previous post on this argument.  Here are some thoughts. 

I’ll frame my comments as a response to Matt’s first point about the non-uniqueness of the argument (though I think I’ll rope in his second point too).  As an initial matter, I think Matt is right, as I’ve also heard this style of argument in the context of poverty, or more generally in the context of deciding to which moral cause it is most useful to allocate one’s energies.  But I had two thoughts:

(1) The argument makes a bit more sense to me when the subject is individual morality — the questions of what is the right way to act, and to what issue or moral problem it is worth devoting one’s finite resources.  That’s not to say that I agree with it, but I at least can understand it.  In the context of constitutionally protected rights, it makes less sense to me.  And perhaps in part for that reason, I guess, one tends to hear it much less in the rights context.  Can you think of any other context involving a constitutional right in which one hears the argument?  I think it would be very odd to hear it in, e.g., the free speech context.  It would be highly unusual to hear something like the following: “Well, sure, the Stolen Valor Act may or may not be a violation of the constitutional right of free speech, but look at all of the terrible ways in which free speech is violated abroad!  That’s real suppression of free speech for you, and it suggests that something like the protection of intentional lying just isn’t that important.”  My guess is that the reason such an argument as to free speech would seem odd to us implicates Matt’s second point.  That is, our culture of free speech protection is extremely vibrant.  And that goes for most other constitutional rights too: most people think that a right is a right, and ought to be vindicated irrespective of how gross the violations of it may be in other places in the world.  But, as Matt suggests in his second point, the current condition or status of religious liberty by comparison with other fundamental rights is more contested, and therefore weaker: we may agree about the extremes, but there is currently a broader (and perhaps ever broadening?) range of (reasonable) disagreement in the middle than there is for, e.g., free speech. 

(2) I nevertheless take Matt’s point that the argument itself is not unique to religious liberty.  Still, there seems to me to be something in addition going on.  It isn’t just the claim that if you really cared about X, then you’d concentrate your efforts elsewhere in the world where violations of X are gravest.  That sort of argument would apply in the poverty context that Matt raises.  But in the religious liberty discussion, there is a further argumentative move going on: if you really cared about X, then you’d concentrate your efforts elsewhere in the world where violations of X are gravest, and you’d realize how good you’ve got it here, and that whatever violations of X you perceive here just aren’t that serious.  I am dubious that this latter move is being made in the poverty example that Matt raises — I certainly don’t think it’s necessary conceptually to make that latter move.  But Matt is much more familiar with the egalitarian poverty literature than I am (many people are), so I am happy to be put straight.