The observation that persecution, paradoxically, can confer benefits on a religion is not a new one. “The blood of the martyrs is the seed of the Church,” Tertullian wrote in the second century. It’s not an old one, either. Just yesterday, in fact, Judge Richard Posner made the point in his dissent in the Wisconsin high school graduation case, noted here. And, on SSRN, R. George Wright (Indiana University Robert H. McKinney School of Law) has posted an article, A Cost-Benefit Analysis of Religious Persecution: Casting Up a Dread Balance Sheet, arguing that persecution often confers “judicially cognizable benefits” on victims.  The abstract follows.

This Article notes that it is currently a matter of public controversy whether some forms of persecution based on religion are increasing or decreasing in the United States. This question itself is not subject to reasoned, consensual resolution. But a related and extremely important point remains to be made. Specifically, alongside the obvious costs of any persecution based on religion, many instances of alleged or actual religious persecution confer immense, judicially cognizable benefits, from the standpoint of many of the victims themselves, on many parties, including those victims. It can be entirely legitimate for legislatures, agencies, and courts to take such immense benefits to the victims into account in adopting policies or adjudicating claims about such government policies.