ICLARS Panel: Is Religion Special?

Along with my St. John’s colleague, Marc DeGirolami, and other law and religion scholars from around the world, I spent part of last week at the biannual ICLARS Conference, hosted this year at William and Mary and the University of Virginia. Kudos and thanks to the indefatigable Cole Durham and other conference organizers for an exceptionally helpful ¬†and fun event!

I spoke at Friday’s afternoon session, on a panel, “Is Religion Special?”, moderated by Edward Gaffney of Valparaiso. My co-panelists were Barry Bussey of the Canadian Council of Christian Charities and Micah Schwartzman of the University of Virginia. Bussey presented a paper titled, “Does Religion Merit Special Protection in the Law? (Within the Canadian Legal Context).” Early Canadian Supreme Court cases stressed the country’s Christian heritage, he explained. Over time, however, the Court moved to a concern with religion in general. Now, equality often trumps freedom of religion in the Canadian case law–religious freedom is often the “loser.” I presented my working project on the rise of the Nones–the group of people who claim no religious affiliation–and what it might mean for the definition of religion in American law. As an example, I used the recent “Psychic Sophie” case, in which the Fourth Circuit held that “following one’s inner flow” does not qualify as a religion meriting constitutional and statutory protection. Schwartzman closed the panel with his draft, “Religion as a Legal Proxy.” He addressed the argument that, even if religion as such doesn’t merit special legal protection, religion is a proxy for other comprehensive values that do. Schwartzman is skeptical of this argument. For one thing, he said, interests besides religion–conscience, for example–might also serve as effective proxies for other comprehensive values, without raising religion’s particular concerns.

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