Panel 1: Religious Freedom, the First Amendment, and U.S. Law

I’m here with Mark at the Notre Dame conference and thought I would live blog some of the panels today.

The first panel deals with the First Amendment proper. After a wonderful introduction by Judge Sullivan, Tom Berg spoke first. His primary theme concerned the role of religious organizations in the broader society, particularly those organizations that span the public and private realms. Critics of exemptions say that once a religious organization enters the public realm (by hiring employees who may not share the faith), no exemptions are permissible. Tom’s focus is on what he calls “partly acculturated” organizations–organizations that are deeply involved in providing social services and in performing civic functions but that do not share all of the culture’s norms. He argued that such organizations should receive exemptions both for religious equality reasons and for reasons of the social capital contributed by such groups. As to the latter, the point is not simply about the benefits to society but about the core reasons for protecting religious freedom at all.

Rick Garnett spoke next. He focused on an under appreciated feature of Dignitatis Humanae, the idea that government has a role in creating, proactively, the conditions necessary for the full exercise of religious freedom. As to the second, is this consistent with American constitutionalism? There is at least some tension. But Rick argued that the American account of religious freedom need not be neutral if neutrality demands that the state not regard religion “as a good thing.” That is, there is an important space between establishment and the state’s proper, secular, care for religion. That understanding is reflected in DH. Care, as Rick understands it, might include the building and maintaining of infrastructural spaces within which religious institutions can thrive.

Paul Horwitz spoke third. His theme was a liberal argument for accommodation as to illiberal groups. He began by surveying the usual accommodationist and anti-accommodationist claims. His own view he described as a liberal pluralist perspective. Accommodation is valuable because the state is obliged to act as if there may be important and valuable ideas inaccessible to liberalism. But it is also valuable because not accommodating illiberal groups will ostracize them entirely from society, isolated entirely. This would be a loss for them and for the liberal society. Accommodation “keeps those groups in and not out.”

Chris Lund spoke last. His talk concerned exemptions as well. He argued that without exemptions, many religions could not survive in the modern age. He addressed the claim that certain sorts of exemptions violate the Establishment Clause, those that impose third party harms. There has to be some principle of third party harms and cost, but the difficult questions concern which sorts of harms count. And they are quite difficult. His current factors include: (1) severity of the harm, the problem of course being describing what this means. (2) likelihood of the harm, which is perhaps a bit easier to understand. (3) the religious interest in obtaining the exemption. (4) the existence of other secular exemptions. All of this will require balancing, something the Court is not especially willing to do.

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