Abstract
Over the last few years, a number of legal and political philosophers have argued that there is nothing special – legally and constitutionally – about religion. Religion should be understood as a sub-set of a broader category, what John Rawls called ‘conceptions of the good’, and it should not generate claims of unique, exclusive treatment. These philosophers articulate what I call an ‘egalitarian theory of religious freedom’. It is egalitarian because it places religious and non-religious conceptions of the good on a same plane; and argues that all citizens, whether religious or not, are entitled to equal concern and respect. Egalitarian theorists of religious freedom aim to ‘generalize toleration’: to extend the idea of religious freedom to neutrality towards secular worldviews, lifestyles, sexual preferences, and so forth. All citizens deserve equal respect as citizens, whatever their particular conception of the good – be it a life of intellectual reflection, of pious devotion, or of consumerist hedonism. Religious citizens, for example, should not be exclusively entitled to exemptions from general laws: other citizens (such as secular conscientious objectors) deserve equal consideration.
Originally published in Jean Cohen, Cécile Laborde (eds.), Religion, Secularism and Constitutional Democracy. Earlier drafts of this piece were presented at the Columbia Reid Hall Global Centre Workshop on ‘Religion, Legal Pluralism, and Human Rights: European and Transatlantic Perspectives’ in Paris (May 30–31, 2012), at the Religion and Political Theory (RAPT) workshop at UCL (January 12, 2014), at the Department of Political Economy Research Seminar at King’s College London (February 12, 2014), and at the ‘Religion and Public Life’ conference at Queen’s University, Belfast (May 15–16, 2014). Many thanks to participants for their comments. Research for this piece was supported by a European Research Council (ERC) Grant 283867 on ‘Is Religion Special?’.
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Notes
- 1.
- 2.
See, for example, the essays collected in de Vries 2008.
- 3.
For an analysis of the egalitarian theory of religious freedom of Taylor and MacLure, see Cécile Laborde, ‘Protecting Religious Freedom in the Secular Age’, online at The Immanent Age, and in Mahmood, Hurd and Sullivan 2014c. For an analysis of the egalitarian theory of religious freedom of Eisgruber and Sager, see Laborde 2014b.
- 4.
I borrow this explication of liberal neutrality from Thomas Nagel’s review of Sandel’s Democracy’s Discontent), (Nagel 2010, 110).
- 5.
I have shown elsewhere that, in his treatment of the question of legal exemptions, Dworkin smuggles back in the idea of special respect for ‘sacred duties’. Freedom of religion turns out to be a special right after all (Laborde 2014a).
- 6.
In his response to Matthew Clayton, Dworkin denies that government can go beyond persuasion: he rejects the use of fines, taxes, or other forms of positive or negative subsidy (Burley 2004, 357). This seems to be in tension with his advocacy of state support for the arts, which presumably involves taxation.
- 7.
Dworkin 1985, 232. He also wrote that a rich cultural structure presents options that are ‘innovative’ and ‘diverse’, and display ‘complexity and depth’ (Dworkin 1985, 229).
- 8.
- 9.
Clayton 2004, 99–109, at p. 106. In his response to critics such as Clayton, Frances Kamm and Eric Rakowski in that volume, Dworkin confirms the importance of ‘the distinction I draw between ethical convictions that are central to personality, like convictions about abortion, and other convictions, that I think are not’ (p. 358). He later clarifies: ‘only certain intrinsic values are essentially religious: I define these to include all convictions about whether, how, and why human life is important, whether or not these convictions are drawn from assumptions about a supernatural god’ (p. 374).
- 10.
- 11.
I borrow the example from Sher 1997, 69.
- 12.
For an elucidation of ‘justificatory secularism ’, see Laborde 2013b.
- 13.
See Sinopoli 1993, 644–663. Sinopoli rightly notes: ‘If the principle asserted is that it is better to broaden the range of artistic experience, why should we not say the same thing about religious experience, on one extreme, and trivial enjoyments like games of marbles or pushpin on the other? If, for example, the southern Baptist faith was dying out, should the state act to preserve it so that this denomination would remain available to future generations? What if, on the other hand, the game of marbles found fewer adherents today than it used to have, as is the case? Should the state endorse marbles clinics to preserve this entertainment for others who might someday enjoy it? If it should do so in the case of arts as opposed to marbles, it must be because preserving an artistic heritage is more valuable. And if this value judgment is a controversial conception of the good life, or an element in such a conception as Dworkin clearly believes, he is violating his own neutrality constraint by advocating state support for art’ (Sinopoli 1993, 648).
- 14.
As an example, he refers to the argument that a pornography-free environment (a presumptively religious demand) is better for the education of children and more generally for the health of the public culture. This is, admittedly, not a compelling argument insofar as there are non-conventionally religious arguments for restricting pornography too.
- 15.
- 16.
See, in particular, Dworkin 1993.
- 17.
- 18.
For an elucidation of this political secularism , see the chapters by Jean Cohen, Rajeev Bhargava and Tariq Modood in Cohen and Laborde 2016.
- 19.
Obviously much depends on how this is interpreted. For example, I agree with Jean Cohen (in this volume) that key social services (notably, health, education and basic welfare) should be provided centrally by the secular state, and only marginally by civil society associations. The principle of ‘equivalent aid’, on my view, only applies to the limited range of social services which can permissibly be provided by civil society associations; and it mandates that such associations broadly adhere to principles of non-discrimination, inclusiveness, etc.
- 20.
Laborde, ‘Justificatory Secularism ’. Dworkin ’s own position on this was complex. On the one hand, he rejected Rawls’s public reason argument and argued that comprehensive doctrines could enter the public sphere. But on the other hand, he explicitly rejected religious conceptions from his doctrine of legal interpretation.
- 21.
I agree with Patten (‘Liberal Neutrality: An Interpretation and a Defence’) that neutrality works well as a ‘downstream’ principle of equal treatment of individuals holding different conceptions of the good. But while Patten may be right that a liberal state should be neutral about the respective value of leisure preferences (the examples he uses are about sporting facilities), his analysis does not provide guidelines about what neutrality mandates in the harder cases of education, welfare provision, and meaning-of-life issues.
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Laborde, C. (2017). Liberal Neutrality, Religion and the Good. In: Speight, C., Zank, M. (eds) Politics, Religion and Political Theology. Boston Studies in Philosophy, Religion and Public Life, vol 6. Springer, Dordrecht. https://doi.org/10.1007/978-94-024-1082-2_7
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