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Freedom of Religion

Published online by Cambridge University Press:  20 July 2015

Avihay Dorfman
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Why it is that the principle of freedom of religion, rather than a more general principle such as liberty or liberty of conscience, figures so prominently in our lived experience and, in particular, in the constitutional commitment to the free exercise of religion? The Paper argues, negatively, that the most prominent answers offered thus far fall short; and positively, that the principle of freedom of religion arises out of a thicker understanding of the much neglected relationship between religious liberty and democracy. Indeed, a proper account of the legitimacy of the democratic process. I argue, dissolves the mystery surrounding freedom of religion, and thus allows for an adequate justification of this principle. The thesis of this paper is that freedom of religion is a remedy that redresses the (warranted) exclusion of certain religious arguments from the democratic process. The redress is grounded in a republican concern for political self-determination while exclusion is prescribed by a liberal ideal of political legitimation.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 21 , Issue 2 , July 2008 , pp. 279 - 319
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Copyright © Canadian Journal of Law and Jurisprudence 2008

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References

This Article has benefited substantially from comments received at the Yale Law School Workshop for Fellows and Graduate Students. I would like to thank the participants, especially Asli Bali, Ilan Benshalom, Jorge Contesse, Helmut Ortner, Dirk Pulkowski, and Jeff Redding, for their helpful responses. I am grateful to Joshua Kleinfeld and Daniel Statman for comments and discussion and to Amelia Phillips-Lewis of the Canadian Journal of Law & Jurisprudence for her excellent editorial support. Last, but certainly not least, I am most grateful to Anthony Kronman. His invaluable comments on earlier drafts and the many conversations we had concerning this paper and the grand questions it underlies have been a great source of inspiration.

1. See U.S. Const. amend. I (“Congress shall make no law … prohibiting the free exercise [of religion]”).

2. The qualification arguably in the main text is due to the following concern. A historical analysis may fall short of providing a justification for political institution or authority. Because, as will be noted at the end of the paragraph, I do not intend to pursue the historical path in the present paper, I prefer to leave the question of the normativity of history (and of causal account more broadly) aside.

3. See U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”).

4. An account that shares some aspects of the theory I develop here has been offered in Greene, Abner S., “The Political Balance of The Religion Clauses” (1993) 102 Yale L. J. 1611.CrossRefGoogle Scholar However, the two accounts are, in very significant respects, different and even opposite. Among the dividing themes, Greene does not offer a justification for the principle of religious freedom (as I intend to offer), but rather explains why the Establishment Clause, as he reads it, warrants the constitutional protection provided by the Free Exercise Clause. See ibid. at 1639-1640. That is, it is the legal proscription of the Establishment Clause, and nothing else, that recommends the protection offered by the Free Exercise Clause against burdening laws. Indeed, for Greene there is nothing distinctive in religion that justifies the special treatment that I shall seek to explain and justify. See ibid. My account neither derives from nor depends on the Establishment Clause (whatever the interpretation assigned to that Clause is). Indeed, I shall provide compelling political-moral, not legal, reasons for religious freedom (viz., my account emanates from political philosophy’s concern for political legitimacy tout court, whereas Greene’s is based on a doctrinal legal analysis of First Amendment jurisprudence). In particular, I shall seek to elucidate a justification of freedom of religion based on the liberal and republican ideals of the democratic process.

5. These criteria are not designed specifically for freedom of religion. Rather, they fit other political-moral principles. For an illuminating account of the principle of freedom of expression along these lines, see Schauer, Fredrick, Free Speech: A Philosophical Enquiry (Cambridge and New York: Cambridge University Press, 1982) ch. 1.Google Scholar

6. Therefore I will not consider the justification suggested by Professor Michael McConnell, according to which freedom of religion is based on the possibility that “religion may be true; and if true, religious claims are of a higher order than anything in statecraft.” This argument is valid analytically, but implausible from a liberal, political-moral perspective as explained in the main text that follows. For McConnell’s account, see especially McConnell, Michael, “Accommodation of Religion” (1985) Sup. Ct. Rev. 1 at 15.Google Scholar

7. Dworkin, Ronald, “The Right to Death” New York Review of Books 38:3 (31 January 1991) 14 at 17.Google Scholar

8. Macedo, Stephen, “The Politics of Justification” (1990) 18 Pol. Theory 2801 at 281.Google Scholar

9. See also Audi, Robert, “Religion and the Ethics of Political Participation” (1990) 100 Ethics 386 at 396CrossRefGoogle Scholar (noting that “final resolution to adopt a policy should be fully warranted by secular considerations and set forth as so justified”).

10. In Parts II and III below, I will have more to say about public justification.

11. As Rawls points out, “[t]he Reformation had enormous consequences.” Rawls, John, Political Liberalism1 (New York: Columbia University Press, 1993) at xxiii.Google Scholar Indeed, the questions of stability, political legitimacy, and the nature of the authority of the modern state are all influenced in important ways by the principle of freedom of religion. Again, with Rawls, “the historical origin of political liberalism (and of liberalism more generally) is the Reformation and its aftermath, with the long controversies over religious toleration in the sixteenth and seventeenth centuries.” Ibid. at xxiv.

12. For example, Article 4(1) to the German Basic Law (the Grundgesetz) recognizes the freedom of faith and of conscience and the freedom to profess a religious or philosophical creed. Article 4(2) provides that “[t]he undisturbed practice of religion shall be guaranteed.” GG art. 4(1) & (2). The Canadian Charter of Rights and Freedoms enumerates both freedom of conscience and freedom of religion. Can. Const. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms), §2(a). Section 15 of the newly written constitution of South Africa, entitled “Freedom of religion, belief, and opinion,” states that “everyone has the right to freedom of conscience, religion, thought, belief, and opinion.” S. Afr. Const. 1996, § 15. The title of Article 25 of the Indian constitution reads “Freedom of conscience and free profession, practice and propagation of religion.” The first provision of this article guarantees that “all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.” India Const. art. 25.

13. Indeed, “[o]nly beliefs rooted in religion are protected by the Free Exercise Clause, which, by its terms, gives special protection to the exercise of religion.” Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707 at 713 (1981).Google Scholar

14. The highly contested debates currently taking place in several European states, such as France, Britain, and the Netherlands, concerning the wearing of religious symbols, in particular, and the integration of Muslim communities in the secular, liberal society, in general, are an important reminder of the centrality of the principle of religious freedom in politics and, indeed, in everyday life.

15. This intellectual challenge (i.e., accounting for the distinctiveness of religion) has led First Amendment scholars to subscribe to the view that the principle of freedom of religion should not be privileged over other significant concerns of democratic societies. Rather, it should be treated as a form of anti-discriminatory protection of religious groups against the majority (viz., a principle of equal-regard). For a representative, instructive account, see Eisgruber, Christopher L. and Sager, Lawrence G., “The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct” (1994) 61 U. Chi. L. Rev. 1245.CrossRefGoogle Scholar The anti-discriminatory approach is now far more extended and articulated under the model of Equal Liberty developed in Eisgruber, & Sager, , Religious Freedom and the Constitution (Cambridge, MA: Harvard University Press, u2007)CrossRefGoogle Scholar, where it is argued that “Religious faith receives special constitutional solicitude … only because of its vulnerability to hostility and neglect.” And, it is emphasized that, “Equal Liberty insists that aside from this deep and important concern with discrimination, we have no constitutional reason to treat religion as deserving special benefits or as subject to special disabilities.” Ibid. at 52.

16. The concept/conception distinction appears in Rawls, John, A Theory of Justice (Cambridge, MA: Belknap Press of Harvard University Press, 1971) at 5 Google Scholar. Rawls attributes this distinction to Hart, H.L.A., The Concept of Law (London and New York: Oxford University Press, 1961) at 155–59.Google Scholar

17. A recent article written by Andrew Koppelman can serve as an illustration of the idea of dis-tinctiveness, particularly the pitfalls of accounting for freedom of religion without insisting on its distinctive property (whatever it may be). According to Koppelman (who follows Charles Taylor), religion is a human hypergood not reducible to any other good. See Koppelman, Andrew, “Is it Fair to Give Religion Special Treatment?” (2006) U. Ill. L. Rev. 571 at 594.Google Scholar However, religion, the argument maintains, is just one among other ultimate concerns or hypergoods. Ibid. at 594. There is nothing distinctive about it that warrants special protection. The integration of these two observations (viz., that religion is a good and that it is but one among many other goods) forces Koppelman to adopt a pragmatic posture toward the explanation of the existence of a freestanding constitutional principle of freedom of religion. His argument therefore turns on the idea that because it is impossible, as a matter of legal technology, to protect more than one hypergood at a time, the law treats each hyper-good separately. For this reason, religion should be protected by a special legal rule—the constitutional right to the free exercise of religion—just as other hypergoods, taken severally, might warrant legal protection. Ibid. at 597.

I doubt whether a pragmatic rationale in general, and Koppelman’s in particular, can bear the heavy burden of justifying the special constitutional commitment to the principle of religious liberty. That is, is it possible to explain, rather than explain away, the principle of freedom of religion by reference to technological difficulties in crafting a legal rule capable of protecting multiple hyper-goods?

More importantly, Koppelman’s argument remains silent with respect to the question of whether religion is indeed a good and what justifies this conclusion insofar as the constitutional protection of religion is at stake. It is one thing to claim that religion is a good, indeed a hypergood, for many persons (but certainly not for all); it is quite another to explain what political-moral reasons exist for enlisting the law, indeed the supreme law of the land, to protect this good. The latter concern calls for justification, regardless of whether or not other hypergoods merit legal protection. It is not clear how this justification may go given that Koppelman argues that there is nothing special about religion. Furthermore, the logic of Koppelman’s argument cannot recommend the accommodation of burdening laws in the face of religious persons, and in virtue of their religious faith, tout court. Rather, it grounds accommodation to all those persons—religious and otherwise—who are committed to hypergoods of whatever sort. Religion, the ordinary English word as well as the principle, figures no where in such an explanation. It merely becomes a placeholder for comprehensive doctrines in the Rawlsian sense of the term. Accordingly, it would be more appropriate to understand the account under consideration as a defense of the equal right to hyper-goods or the equal freedom to practice comprehensive doctrines.

18. As I have already mentioned in the Introduction, this paper will not discuss the historical explication of religious freedom.

19. For far more elaborated and instructive discussions of justifications of freedom of religion than the one pursued in the main text, see Smith, Steven D., “The Rise and Fall of Religious Freedom in Constitutional Discourse” (1991) 140 U. Pa. L. Rev. 149 at 196-219CrossRefGoogle Scholar; Smith, Steven D., Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (New York: Oxford University Press, 1995)Google Scholar; Sapir, Gidon & Statman, Daniel, “Why Freedom of Religion Does Not Include Freedom From Religion” (2005) 24 L. & Phil. 467 at 470-86.CrossRefGoogle Scholar

20. This rationale for justifying religious liberty along conscientious lines can be found in, e.g., Rawls, Political Liberalism, supra note 11 at 291, 310-15; Sandel, Michael J., Democracy’s Discontent: America in Search of a Public Philosophy (Cambridge, MA: Belknap Press of Harvard University Press, 1996) at 65–71 Google Scholar; Galston, William A., The Practice of Liberal Pluralism (Cambridge and New York: Cambridge University Press, 2005) at 45–71.Google Scholar Ellis, Anthony, in his “What is Special about Religion?” (2006) 25 L. & Phil. 219 CrossRefGoogle Scholar, has claimed that religion is special for purposes of the Free Exercise Clause for (mainly) the following reason:

conscientious beliefs and … practices … are special preferences because of the sort of constraint they place on those who have them. It is not simply difficult for such people to abandon them, as it may be difficult for a pigeon-fancier to give up his hobby. The sacrifice involved is of a quite different sort, a sort that it is reasonable to wish to be immune from the normal process of weighting interests. That wish is realized in constitutional protection, which gives precisely that immunity. Ibid. at 240.

Although Ellis’s initial project is finding “what is special about religion,” the account he articulates (as the text just quoted shows) amounts to an argument from conscience (i.e., a justification of religious freedom as freedom of conscience). There is nothing in Ellis’s argument, and more broadly in the resources of other proponents of the justification from conscience, that distinguishes religion from other (non-religious) meaningful belief systems. Indeed, as Ellis concedes, his argument applies to “moral, political and, perhaps, some aesthetic beliefs as well as religious ones.” Ibid. at 239.

21. The same criticism applies to the account of freedom of religion as freedom of expression offered in Gey, Steven G., “Why Is Religion Special?: Reconsidering the Accommodation of Religion under the Religion Clauses of the First Amendment” (1990) 52 U. Pitt. L. Rev 75.Google Scholar It applies equally to an argument for protecting religious freedom for reasons similar to those by which we protect the insane—because religious persons are not like free agents, capable of acting on accessible, valid reasons. See Garvey, John H., “Free Exercise and the Values of Religious Liberty” (1985-1986) 18 Conn. L. Rev. 779 at 798-801.Google Scholar

22. See also Heyking, John Von, “The Harmonization of Heaven and Earth?: Religion, Politics, and Law in Canada” (2000) 33 U.B.C. L. Rev. 663 at 678Google Scholar (noting that Canadian conscience-based jurisprudence of religious freedom “collapses religion into conscience”).

23. For a historical analysis of the different understanding given by the founding fathers to conscience on the one hand, and religion, on the other, see McConnell, Michael W, “The Problem of Singling Out Religion” (2000) 50 DePaul L. Rev. 1 at 12-16.Google Scholar

24. See also Nussbaum, Martha C., Women and Human Development: The Capabilities Approach (Cambridge and New York: Cambridge University Press, 2000) at 207 CrossRefGoogle Scholar (noting that “[t]he features that make religion worthy of deference are frequently found in nonreligious belief-systems and practices”). Work on this article was completed prior to the publication of Nussbaum’s new book. I do not, therefore, consider her present position on the subject matter of religious liberty. See Nussbaum, Martha C., Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008).Google Scholar

Ronald Dworkin has observed that a secular tolerant society “knows that many of its members do attach great importance to their freedom to choose their own religious commitments and life, and it is of course anxious to respect that conviction. But it also knows that other members attach comparable importance to making other choices about how to live—about sexuality or procreation, for instance—that reflect their own different convictions about what lives would be good for them.” Dworkin, Ronald, Is Democracy Possible Here? (Princeton and Oxford: Princeton University Press, 2006) at 61.Google Scholar

25. To be sure, pacifism may share certain similar themes with religion, but it does not seem to be a straightforward religion. The U.S. Supreme Court has been forced to grapple with this difficulty in United States v. Seeger, 380 U.S. 163 (1965)Google Scholar and Welsh v. United States, 398 U.S. 333 (1970).Google Scholar

26. This lack of “fit” between the justification (in this case, freedom of conscience) and the object of justification (freedom of religion) has led scholars to conceive of the singling out of religion in the Free Exercise Clause as indefensible. See, e.g., Gedicks, Frederick Mark, “An Unfirm Foundation: The Regrettable Indefensibility of Religious Exemptions” (1998) 20 U. Ark. Little Rock L. J. 555 Google Scholar; Eisgruber and Sager, “The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct,” supra note 15.

27. I use source of political authority to emphasize that a justified principle of religious freedom claims to have the (political-moral) authority to prescribe compelling reasons for action to the devotees, to the affected nonreligious persons, and to state institutions and officials.

28. Marsh v. Chambers, 463 U.S. 783 at 812 (1983) (J., Brennan, dissenting).Google Scholar

29. McCreary County v. ACLU, 125 S.Ct. 2722 at 2749 (2005) (J., Scalia, dissenting) [emphasis added].Google Scholar

30. For an argument along these metaphysical lines, see McConnell, “Accommodation of Religion,” supra note 6 at 15.

31. The leading accounts remain Kymlicka, Will, Liberalism, Community, and Culture (Oxford: Clarendon Press; New York: Oxford University Press, 1991)Google Scholar and Kymlicka, Will, Multiculturalism Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press; New York: Oxford University Press, 1995).Google Scholar

32. For a general, instructive discussion regarding autonomy, see Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press; New York: Oxford University Press, 1986) at §§ 14–15.Google Scholar

33. Ibid. at 199. As the discussion in the main text implies, the term public good as it is used by Raz must not be confused with the classical economic idea of non-rival and non-exclusive (and therefore public) goods.

34. Raz, Joseph, Ethics in the Public Domain (Oxford: Clarendon Press; New York: Oxford University Press, 1994) at 163 Google Scholar (emphasizing “the role of cultures as a precondition for, and a factor which gives shape and content to, individual freedom. Given that dependence of individual freedom and well-being on unimpeded membership in a respected and prosperous cultural group, there is little wonder that multiculturalism emerges as a central element in any decent liberal political programme for societies inhabited by a number of viable cultural groups.”).

35. Obviously, religions that cancel the ideal of autonomy of its members cannot be a part of the Razian concept of the public good.

36. Raz, in The Morality of Freedom, maintains tha

while religious freedom was usually conceived of in terms of the interest of individuals, that interest and the ability to serve it rested in practice on the secure existence of a public good: the existence of religious communities within which people pursued the freedom that the right guaranteed them. Without the public good the right would not have had the significance it did have. Furthermore, the existence of the right to religious freedom served in fact to protect the public good. Raz, supra note 32 at 251.

37. The Razian account extends the implication of religious freedom beyond the individual. According to Raz, “the existence of the rights to religious freedom served in fact to protect the public good.” Ibid.

Note that Kymlicka himself rejects assigning cultural rights to immigrant groups and, therefore, to many religious persons. For him, national minorities are the paradigmatic group (“societal culture”) that should be entitled to cultural rights. Ethnic and religious minorities, insofar as they consist of immigrants, must seek their assimilation in the liberal society without such broad cultural protections. See Kymlicka, Multiculturalism Citizenship: A Liberal Theory of Minority Rights, supra note 31 at 95-98. For a critical discussion of Kymlicka concerning this last point, see, e.g., Benhabib, Seyla, The Claims of Culture (Princeton, NJ: Princeton University Press, 2002) at 59–67.Google Scholar

38. For an argument along these lines (viz., freedom of religion as a cultural protection), see Sapir, Gidon, “Religion and State—A Fresh Theoretical Start” (1999) 75 Notre Dame L. Rev. 579 at 625-41.Google Scholar Jeremy Waldron has offered a somewhat different account of freedom of religion as a protection of persons’ significant cultural contexts. Because his account applies to culture and not distinctively to religion, his justification is essentially of the kind explained in the main text—a justification for a right to culture. See Waldron, Jeremy, “One Law for All? The Logic of Cultural Accommodation” (2002) 59 Wash. & Lee L. Rev. 3.Google Scholar

39. For a criticism of the reduction of culture, especially religious culture, into a mere source of identification, see Margalit, Avishai and Halbertal, Moshe, “Liberalism and the Right to Culture” (1994) 61 Soc. Res. 491 Google Scholar (distinguishing between ‘a culture’ and one’s ‘own culture’).

40. Moreover, according to the liberal agenda, proxies such as the average/median (liberal) person or the aggregation of welfare are excluded. See Rawls, A Theory of Justice, supra note 16 at 4, 19, 25-27, 220, 580-81; Habermas, Jurgen, Truth and Justification, trans. and ed. by Fultner, Barbara (Cambridge, MA: MIT Press, 2003) at 261–75.Google Scholar

41. Waldron, Jeremy, “Theoretical Foundations of Liberalism” (1987) 37 Phil. Q. 127 at 149.CrossRefGoogle Scholar See also Habermas, Jurgen, The Inclusion of the Other, Cronin, Ciaran & Greif, Pablo De, eds. (Cambridge, MA: MIT Press, 1998) at 100 Google Scholar (noting that “moral commands [extending, in Habermasian terminology, to principles of political-moral conduct] must be internally related to the life-plans and lifestyles of affected persons in a way they can grasp for themselves.”).

42. See also Nagel, Thomas, Equality and Partiality (New York: Oxford University Press, 1991) at 8 Google Scholar (“The pure ideal of political legitimacy is that the use of state power should be capable of being authorized by each citizen”). [Emphasis added.]

43. Furthermore, legitimacy is related directly to the sort of stability enjoyed by the particular polity. Sustaining stability can be attributed to the force of the reasons (addressed to the point of view of each person separately) or to the force of oppression (addressed to persons regardless of their points of view) or a mix of both. Only political authority that meets the liberal standard of legitimacy may garner stability based on the force of reasons.

44. See, e.g., Ackerman, Bruce, Social Justice in the Liberal State (New Haven, CT: Yale University Press, 1980) at 6 Google Scholar (describing “liberalism as a way of talking about power”).

45. Waldron, “Theoretical Foundations of Liberalism,” supra note 41 at 149.

46. See, e.g., Rawls, Political Liberalism, supra note 11 at 243 (referring to “the ideal expressed by the principle of legitimacy: to live politically with others in the light of reasons all might reasonably be expected to endorse”); Ackerman, Bruce, “Political Liberalisms” (1994) 91 J. Phil. 364 at 365CrossRefGoogle Scholar (noting the threat of “alienat[ing] other members of the community who have affirmed competing ideals in life”); Nagel, Equality and Partiality, supra note 42 at 23, 33 (maintaining that justifications of political authority must be capable of being “endorsed by everyone” and that the concern for “legitimacy” warrants “finding a way to justify a political system to everyone who is required to live under it”).

47. Habermas, Truth and Justification, supra note 40 at 238.

48. Rawls, Political Liberalism, supra note 11 at 224.

49. Rawls, A Theory of Justice, supra note 16 at 17-22.

50. Dworkin, Ronald, “Equality of Resources,” reprinted in Sovereign Virtue: The Theory and Practice of Equality (Cambridge, MA: Harvard University Press, 2000) at 65–119.Google Scholar

51. Habermas, Jurgen, Between Facts and Norms, trans. by Rehg, William (Cambridge, MA: MIT Press, 1996) at 107.Google Scholar Note that the discourse principle cited in ibid. is a constrained aspect of the much broader theory of discourse ethics. The latter is part of Habermas’s moral theory and, therefore, applies universally. The former, by contrast, is a strictly construed principle of political theory.

52. Ackerman, Social Justice in the Liberal State, supra note 44 at 10-12.

53. Dworkin, Ronald, “Sovereign Virtue Revisited” (2002) 113 Ethics 106 at 108.CrossRefGoogle Scholar

54. These conversations are an essential feature of every non-violent society. Indeed, society consists of people who desire to act in certain ways to achieve their goals. However, one’s acts and interests may, from time to time, interfere with the interests of others. The democratic process addresses this difficulty, by providing for procedures of discussing and then deciding how to resolve the difficulty in a non-violent fashion.

55. Those who reject the liberal standard of legitimation (as described in the main text) would naturally be led to reject the exclusion of religious-based arguments from the democratic process. See, in this regard, Weithman, Paul J., Religion and the Obligations of Citizenship (Cambridge and New York: Cambridge University Press, 2002) chs. 4-5.CrossRefGoogle Scholar

56. See, e.g., Nagel, Thomas, “Moral Conflict and Political Legitimacy” (1987) 16 Phil. & Pub. Aff. 215 at 229Google Scholar (noting that the “exclusion of the appeal to religious convictions” is warranted by liberalism). See also ibid. at 232; Audi, Robert, “The Place of Religious Argument in a Free and Democratic Society” in Feldman, Stephen M., ed., Law and Religion: A Critical Anthology (New York: New York University Press,2000) 69 at 78-79Google Scholar (maintaining that, according to the liberal model of legitimacy, believers can participate in public discussions only to the extent they offer public, secular reasons); Audi, Robert, Religious Commitment and Secular Reason (Cambridge and New York: Cambridge University Press, 2000) at 67 CrossRefGoogle Scholar (same); Ackerman, Bruce, “Why Dialogue?” (1989) 86 J. Phil. 5 at 16CrossRefGoogle Scholar (“We should simply say nothing at all about this disagreement [regarding controversial moral truths] and put the moral ideas that divide us off the conversational agenda [upon engaging in political dialogues]”).

57. Perry, Michael J., Love and Power: The Role of Religion and Morality in American Politics (New York: Oxford University Press, 1991) at 43–51, 83–127.Google Scholar

58. A further question is how dominant should the non-religious rationale be when a combined religious and non-religious argument is at stake. I leave that question open as this paper focuses on a clear, easy case: the ‘pure’ religious argument.

59. See Laycock, Douglas, “The Remnants of Free Exercise” (1990) Sup. Ct. Rev. 1 at 24-26Google Scholar (acknowledging that religious conduct is not limited to duty-following since religious persons do act from religious motivations that are not the upshot of god’s commands). See also Marshall, William P., “In Defense of Smith and Free Exercise Revisionism” (1991) 58 U. Chi. L. Rev. 308 at 321CrossRefGoogle Scholar (observing that “some religious exercise is based upon religious custom rather than divine obligation”).

60. This frame of reasoning about democracy was defended, among liberals, by Ronald Dworkin. See Ronald Dworkin, Sovereign Virtue, supra note 50 at ch. 4. For Dworkin’s updated, and much more complicated, view of democracy (which remains loyal to my characterization of the liberal approach to democracy), see ibid. at ch. 10.

61. See Markovits, Daniel, “Democratic Disobedience” (2005) 114 Yale L. J. 1897 at 1907Google Scholar (“[t]he democratic process, according to the liberal view, has no independent political value”).

62. Rawls, John, ‘The Idea of an Overlapping Consensus,’ reprinted in John Rawls: Collected Papers, Freeman, Samuel, ed. (Cambridge, MA and London: Harvard University Press, 1999) 421 at 425.Google Scholar See also the introduction to Rawls, Political Liberalism, supra note 11 at xvii.

63. See Waldron, Jeremy, Law and Disagreement (Oxford: Clarendon Press; New York: Oxford University Press, 1999) at 1–2 CrossRefGoogle Scholar (criticizing liberal theories for presupposing the possibility of substantive agreement over justice and fundamental rights).

64. The locus classicus in this respect is Arrow, Kenneth, Social Choice and Individual Values, 2nd ed. (New Haven, CT: Yale University Press, 1970)Google Scholar (proving that democratic collective decisionmaking processes cannot retain both rationality and fairness; a.k.a. the Impossibility Theorem). The Impossibility Theorem famously offered by Arrow corresponds to the impoverished view of democracy as a technology of preferences’ aggregating.

65. Rousseau, Jean-Jacques, On the Social Contract, trans. by Masters, Judith R. (New York: St. Martin’s Press, 1978) at 61.Google Scholar

66. Kelsen, Hans, General Theory of Law and State, trans. by Wedberg, Anders (New York: Russell & Russell, 1961) at 287–88.Google Scholar

67. See also Post, Robert, “Equality and Autonomy in First Amendment Jurisprudence” (1997) 95 Mich. L. Rev. 1517 at 1523-24CrossRefGoogle Scholar (book review) (noting that democracy, viewed merely as the fair aggregation of preferences of equal citizens cannot resist its reduction ad absurdum into an antidemocratic regime).

68. See, e.g., the discussion of Dworkin’s early account of the concept of democracy in Dworkin, Sovereign Virtue, supra note 50 at ch. 4. See also my discussion in the text accompanying note 60.

69. Rawls, A Theory of Justice, supra note 16 at 355. Note that in his later period, Rawls has credited the democratic process with greater authority. See, for example, Rawls, Political Liberalism, supra note 11 at 217-18. However, his account still falls short of recognizing the freestanding force of democracy as a source of political legitimacy. See, especially, ibid. at 232. See also Cohen, Joshua, “For a Democratic Society” in Freeman, Samuel, ed., The Cambridge Companion to Rawls (Cambridge: Cambridge University Press, 2003) at 86–138.Google Scholar Cohen correctly observes that both the early and later Justice as Fairness miss “something that we associate with democratic politics”—viz., our lived experience of democracy as the landscape of deep disagreements about any conception of justice, including Rawls’s. Ibid. at 129. Cohen argues that Rawls mistakenly projects the idea of unanimity in moral theory onto the domain of the political. See ibid. at 130-31.

70. For an elaborated account of this theme in the American context, see Post, Robert, Constitutional Domains: democracy, community, management (Cambridge, MA: Harvard University Press, 1995) esp. at 185–86 Google Scholar; Markovits, “Democratic Disobedience,” supra note 61 at 1911-22.

71. Habermas, Between Facts and Norms, supra note 51 at 450.

72. Famously, the theory of democracy developed by Rousseau provides an unconvincing account of the possibility of forming a general will. That is, the absolute match that democracy forms between the private will of a citizen and the general will that Rousseau has sought to vindicate remains a mystery. However, Rousseau’s account is still incredibly important to any modern theory of democracy. The reason is his insistence on the notion of political autonomy—that is, the idea of becoming free only insofar as one is the co-author of the polity’s laws.

73. Fishkin, James S., Democracy and Deliberation: new directions for democratic reform (New Haven, CT: Yale University Press, 1991) at 4.Google Scholar

74. The bracketed discussion implies that participation in the political process must be meaningful and not superficial in the sense that one’s arguments ought to have the potential to make a difference and to gain, in the present or in the future, the acceptance of the citizenry. Nonetheless, this potential requirement should not be overstated. Its purpose is to give citizens a sense of participation in the democratic process.

75. See Waldron, Jeremy, The Dignity of Legislation (Cambridge: Cambridge University Press, 1999) at 156 CrossRefGoogle Scholar (referring to the complicated, democratic procedures of the legislation process as “the ground of [the statute’s] authority”). A central theme in the constitutional development of the U.S. along civic republican lines, as discussed in the main text (i.e., the freestanding authority of the democratic process at the constitutional level itself) is found in 1-2 Ackerman, Bruce, We The People (Cambridge, MA: Belknap Press of Harvard University Press, 1991, 1998).Google Scholar

76. The direct relationship between autonomy and being the co-author of binding laws is a Rousseauian idea. For a recent application of this ideal in the area of constitutional theory and interpretation, see Rubenfeld, Jed, Revolution by Judiciary: the structure of American constitutional law (Cambridge, MA: Harvard University Press, 2005) at 91.Google Scholar Rubenfeld focuses on the Kantian elaboration of this argument. Kant, as is well known, was influenced by Rousseau’s basic thought about autonomy as becoming the author of the binding law.

Another recent, instructive elaboration of this civic-republican ideal in connection with political philosophy’s approach to civil disobedience is made in Daniel Markovits, “Democratic Disobedience,” supra note 61.

77. See part II.C of this paper.

78. Habermas’s Between Facts and Norms (supra note 51) is, in my opinion, the most comprehensive attempt to articulate such a theory. However, a theory of an ideal deliberative democracy, such as Habermas’s, shares more with liberalism than with republicanism.

79. See Rawls, Political Liberalism, supra note 11 at 217-18 (emphasizing the democratic process as the site at which citizens exercise their equal share in coercive political power).

80. See Habermas, Between Facts and Norms, supra note 51 at 89 (“the source of all legitimacy lies in the democratic lawmaking process, and this in turn calls on the principle of popular sovereignty”).

81. See Ackerman, Social Justice in the Liberal State, supra note 44 at 333 (“in the absence of liberal dialogue, all the technology in the world will never answer the question of legitimacy”).

82. Professor Eskridge, observes that “[c]onflicts among religious and ethnic groups have scored American cultural and political history. Some of these conflicts have involved campaigns of suppression against deviant religious and minority ethnic groups by the mainstream. Although the law has most often been deployed as an instrument of suppression, there is now a public law consensus to preserve and protect the autonomy of religious and ethnic subcultures, as well as the ability of their members to self-identify without penalty.” Eskridge, William Jr., ‘A Jurisprudence of “Coming Out”: Religion, Homosexuality, and Collisions of Liberty and Equality in American Public Law’ (1997) 106 Yale L. J. 2411 at 2411.CrossRefGoogle Scholar

83. Professor Carter has observed that “[n]owadays, the government hardly ever adopts laws aimed at burdening particular religions. Consequently, the question of religious freedom arises most frequently when the religious ask for exemptions under the Free Exercise Clause from laws that apply to everybody else.” Carter, Stephen L., The Culture of Disbelief: how American law and politics trivialize religious devotion (New York: Basic Books, 1993) at 124.Google Scholar

84. See, e.g, Regina (Williamson and others) v. Secretary of State for Education and Employment, [2005] UKHL 15.Google Scholar In this case, Catholic parents insisted, in effect, that the teachers of their children (in private, Catholic schools) be excused from a statutory prohibition against corporal punishment at schools. The parents urged that according to their religious belief, corporal punishment is required as part of being educated in Catholicism.

85. The European Court of Human Rights considered a French case involving the ritual slaughtering of animals. An orthodox Jewish sect demanded exemption from a criminal law proscribing, for the sake of eliminating animal suffering, the kind of slaughtering practiced by this sect. The complaint was dismissed, mainly for the reason that the sect could obtain the kosher meat they sought under existing exemptions regarding ritual slaughtering. See Cha’are Shalom Ve Tsedek v. France, [2000] ECHR 351.Google ScholarPubMed

86. See Employment Division v. Smith, 494 U.S. 872 (1990)Google ScholarPubMed (holding that the Free Exercise Clause does not compel legislators to grant exemptions from laws of general applicability despite the burden these laws impose on religious persons).

87. An exceptional case is Church ofthe Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)Google ScholarPubMed. In this case the purpose of the laws enacted by the respondent (the city of Hialeah) was the suppression of a particular religious practice.

88. One important exception may be the French prohibition (enacted in March 2004) against wearing religious symbols in schools such as, but not limited to, the Islamic headscarf. On the one hand, this legal ban may appear to be a conscious persecution of Muslim female pupils (although students from other religions could be affected as well—e.g., Jewish boys wearing the yarmulke). Hence, it might not fit the observation offered in the text, according to which the immediate threat to religious sects is from laws of general applicability that, unfortunately, burden their ability to carry out religious practices. On the other hand, I believe it is premature at this time to judge whether the primary motivation behind this ban is one of suppressing religion qua religion (and, in particular, Islam) or of sustaining the ideal of the liberal political community in the public sphere. In any case, the European discourse involving religious dress codes (e.g., in France, Great Britain, the Netherlands, and Germany) does not refute the existence of the problem identified in the main text, associated with the rise of the regulatory state, of burdening the religious by laws of general applicability. For an informative discussion of the headscarf prohibition in France, see Beller, Elisa T., “The Headscarf Affair: The Conseil d’Etat on the Role of Religion and Culture in French Society” (2003-2004) 39 Texas Int’l L.J. 581.Google Scholar

89. See also Carter’s precise observation in Carter, The Culture of Disbelief, supra note 83 at 124.

90. This example is inspired by the facts of Thomas, supra note 13.

91. The alternative grounds correspond to the earlier discussion in the text accompanying notes 58-60. Recall that the Ultimate grounds may be either god’s dictates or the religious enthusiasm of the devotee toward her god.

92. The two different kinds of Ultimate grounds represent the two sources of religious grounds discussed in the text accompanying notes 58-60 and 91.

93. See text accompanying notes 54-55.

94. Rousseau, On The Social Contract, supra note 65 at 53. Indeed, for Rousseau, the task of his theory is to “[f]ind a form of association that defends and protects the person and goods of each associate with all the common force, and by means of which each one, uniting with all, nevertheless obeys only himself and remains as free as before.” Ibid.

95. For instance, despite the absolute language of certain Amendments in the Bill of Rights, the Supreme Court has construed such Amendments in a non-absolute fashion. See Steagald v. United Stated, 451 U.S. 204 at 211 (1981)Google Scholar (“The search at issue here took place in the absence of … exigent circumstances. Except in such special situations, we have consistently held that the entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant”); Virginia v. Black, 538 U.S. 343 at 358 (2003)Google Scholar (“The protections afforded by the First Amendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution”).

96. An interesting question arises when, based on the principle of religious freedom, a claim for exemption from a law of general applicability is rejected (say, by the legislature). Furthermore, let’s assume that the Supreme Court affirms this rejection because granting an exemption would have devastating effects with respect to public order. Does this rejection contradict the ideal of political self-determination? Not necessarily. The answer depends on the significance we assign to the mere possibility of raising the (legitimate) claim to exemption based on the principle of freedom of religion. That is, the principle of freedom of religion empowers the religious adherent with the constitutional power to advance a legal claim for exemption. This mode of participation, which is conceptually different from that of the ordinary democratic process, can be seen as sufficient for sustaining political self-determination. Nevertheless, I leave this question open. My aim is to show that a principled justification of freedom of religion is conceptually possible; further implications and complications may be postponed until later.

97. In other words, given that the liberal model of legitimacy leads to the exclusion of religious-grounded arguments (of the sort used in the thought experiment), the second best opportunity to actualize the political autonomy of the excluded persons is to grant them a constitutional redress in the form of freedom of religion. Hence, the proposed justification substitutes constitutional redress for participation in the democratic process. This redress permits the accommodation of the general law to the excluded.

98. As mention above, the exemption is not necessarily an absolute one. See text accompanying notes 95-96.

99. Smith, supra note 86. Congress reacted by enacting the Religious Freedom Restoration Act of 1993, to the contrary. See Gonzales v. Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006).Google Scholar

100. City of Boerne v. Flores, 521 U.S. 507 (1997)Google Scholar (striking down federal Religious Freedom Restoration Act of 1993 because Congress was not attempting to remedy a violation of the Fourteenth Amendment).

101. U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion”).

102. One prominent view is that the two clauses are competing against each other. See, e.g., Thomas, supra note 13 at 720 (“The Court correctly acknowledges that there is ‘tension’ between the Free Exercise and Establishment Clauses”) (Rehnquist J., dissenting); Locke v. Davey, 540 U.S. 712 at 718 (2004)Google Scholar (“These two Clauses … are frequently in tension.”); Cutter v. Wilkinson, 544 U.S. 709 at 719 (2005)Google Scholar(noting that the two clauses “often exert conflicting pressures”); McConnell, Michael W, Gravey, John H. & Berg, Thomas C., Religion and The Constitution (New York: Aspen Publishers, 2002) at 276 Google Scholar (noting that “it is often said that there is a ‘tension, between the Free Exercise and Establishment Clauses.”); Dworkin, Is Democracy Possible Here?, supra note 24 at 57 (observing that “Scholars treat [the Establishment and Free Exercise Clauses] as independent and, indeed, sometimes antagonistic requirements”).

103. Lemon sets out a three-prong test in deciding the constitutionality of legislative programs assisting nonpublic institutions (especially nonpublic schools): “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion. finally, the statute must not foster an excessive government entanglement with religion.” Lemon v. Kurtzman, 403 U.S. 602 at 612-613 (1971)Google Scholar [internal citation omitted]. Throughout the years the third prong was merged de-facto into the second prong. Thus, the concern for entanglement (the third prong) is critical only if it advances or inhibits religion (the second prong). See Agostini v. Felto, 521 U.S. 203 (1997)Google Scholar. In Mitchell v. Helms, 530 U.S. 793 (2000)Google ScholarPubMed, the second prong is somewhat discarded in Justice Thomas’s opinion and, hence, the first prong (the purpose prong) remains the only effective criterion. However, the controlling opinion is the concurring opinion of Justice O’Connor, since it rests on a narrower rationale than Thomas’s and because O’Connor, with whom Justice Breyer joined, provides the critical fifth and sixth votes. The concurring opinion of Justice O’Connor applies the endorsement test to decide whether the government-aid program at stake can reasonably be viewed as an endorsement of religion. See ibid. at 867. See also McCreary County, supra note 29 at 2733 (rejecting the petitioners claim in favor of abandoning the purpose prong of Lemon).

104. The endorsement test was first introduced by Justice O’Connor, as a clarification of the Lemon test, in her concurring opinion in Lynch v. Donnelly, 465 U.S. 668 at 687-689 (1984)Google Scholar and affirmed by a majority of the Supreme Court reviewing the constitutionality of displaying religious symbols in government buildings in County of Allegheny v. ACLU, 492 U.S. 573 at 592-597 (1989)Google Scholar. The court maintained that “[o]ur subsequent decisions further have refined the definition of governmental action that unconstitutionally advances religion. In recent years, we have paid particularly close attention to whether the challenged governmental practice either has the purpose or effect of ‘endorsing’ religion ….” Ibid. at 592. The “principle” underlying the endorsement test “prohibits government from appearing to take a position on questions of religious belief or from making adherence to a religion relevant in any way to a person’s standing in the political community” [internal quotations omitted]. Ibid. at 594. The perspective from which this test is conducted is that of the reasonable observer.

105. See, e.g., Santa Fe Independent Sch. Dist. v. Doe, 530 U.S. 290 at 309-310 (2000)Google ScholarPubMed (“School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”) [internal quotation omitted]; Texas Monthly, Inc. v. Bullock, 489 U.S. 1 at 9 (1989)Google Scholar (“The core notion animating the [first two Lemon prongs] … is not only that government may not be overtly hostile to religion, but also that it may not place its prestige, coercive authority, or resources behind a single religious faith or behind religious belief in general, compelling nonadherents to support the practices or proselytizing of favored religious organizations and conveying the message that those who do not contribute gladly are less than full members of the community.”) (plurality opinion) [internal quotations omitted]; Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 at 34 (2004)Google ScholarPubMed (“the essential command of the Establishment Clause. [is] that government must not make a person’s religious beliefs relevant to his or her standing in the political community by conveying a message that religion or a particular religious belief is to be preferred.”) (O’Connor, J., concurring) [internal quotations omitted].

106. See cases cited in supra note 102.

107. See Rawls, Political Liberalism, supra note 11 at 47-129, esp. 212-54.

108. Although Rawls restricts his argument from public reason to the constitutional essentials of society (ibid. at 214), he does not make an expressio unius argument (“my aim is to consider first the strongest case where the political questions concern the most fundamental matters. Should they hold here, we can then proceed to other cases”). Ibid. at 215. Indeed, the logic of the ideal of public reason should in principle be generally applicable to any exercise of political power as mandated by the liberal commitment to public justification. As Rawls puts it: “I grant that it is usually highly desirable to settle political questions by invoking the values of public reason. Yet this may not always be so.” Ibid. The Rawlsian argument from public reason has indeed been extended in, e.g., Solum, Lawrence B., “Constructing an Ideal of Public Reason” (1993) 30 San Diego L. Rev. 729 Google Scholar; Perry, Michael J., Religion in Politics: constitutional and moral perspectives (New York: Oxford University Press, 1997) at 55.Google Scholar Kent Greenawalt has strongly criticized Rawls for attempting to narrow the scope of the public use of reason to matters of constitutional essentials. See Greenawalt, Kent, Private Consciences and Public Reasons (New York: Oxford University Press, 1995) at 113–20.CrossRefGoogle Scholar

109. Rawls, Political Liberalism, supra note 11 at 226.

110. Ibid. at 218.

111. Ibid. at 243.

112. Ibid. at 254.

113. Ibid. at 224.

114. In addition to “churches and universities,” Rawls mentions that even “scientific societies and professional groups” may offer nonpublic reasons. Ibid. at 220. And compare with ibid. at 58.

115. Ibid. at 218, 243.

116. Ibid. at 58. And see, generally, the discussion on comprehensive doctrines in ibid. at 13.

117. Ibid. at 13.

118. See ibid. at 227. In ibid. at 228, as an example of an essential constitutional question, Rawls uses a public debate on presidentialism versus cabinet government.

119. In the revised edition to his theory of public reason, Rawls affirms that “[t]he values of effectiveness and efficiency may characterize the social organization of teams and clubs, as well as the political institutions of the basic structure of society.” Rawls, , “The Idea of Public Reason Revisited,” reprinted in The Law of Peoples (Cambridge, MA: Harvard University Press, 1999) at 144.Google Scholar

120. See the introduction to the paperback edition of Political Liberalism (New York: Columbia University Press, 1996) where he proposes, on pp. l-lvii, the “wide view of public reason,” which is far more inclusive than his earlier, “inclusive view.” The more extended discussion of the wide view of public reason is in Rawls, “The Idea of Public Reason Revisited,” supra note 119 at 129.

121. Rawls, “The Idea of Public Reason Revisited,” supra note 119 at 144.

122. Ibid. at 153. Rawls further maintains that “[comprehensive] doctrines need not, for example, be by some standards logically correct, or open to rational appraisal, or evidentially supportable.” Ibid.

123. For an instructive attempt made prior to Rawls’s revised account of public reason, see Gutmann, Amy & Thompson, Dennis, Democracy and Disagreement (Cambridge, MA: Belknap Press of Harvard University Press, 1996) at 52–94.Google Scholar

124. See the discussion in part II.B.

125. See, e.g., Rawls, “The Idea of Public Reason Revisited,” supra note 119 at 137-38.

126. Rawls, Political Liberalism, supra note 11 at 111. Here Rawls refers to the concept of objectivity in political (and moral) philosophy.

127. For an illustration of a substantive condition (the principle of liberty) which adds to the necessary condition of accessibility, see Greenawalt, Private Consciences and Public Reasons, supra note 108 at 27.

128. See the discussion in part II.B.

129. This presupposition is akin to the manner and the relevancy maxims of Grice’s celebrated theory of pragmatics. See Grice, Paul, Studies in the Way of Words (Cambridge, MA: Harvard University Press, 1989) at 27 Google Scholar (the maxims of manner state that speakers must “[a]void obscurity of expression” and “[a]void ambiguity.” The relevancy maxim requires the speaker to “Be relevant”).

130. In this respect, my treatment of purely subjective grounds is different from Kent Greenawalt’s. Professor Greenawalt does not account for the practical inaccessibility of such grounds. This fact leads him to recommend the exclusion of these grounds from the democratic process. By contrast, I need not offer their exclusion, because purely subjective grounds would not be introduced by rational citizens in the first place. More generally, whereas Greenawalt’s account does not distinguish between religious and purely subjective (though non-religious) grounds, my account insists on singling out religious grounds. For Greenawalt’s account, see Greenawalt, Private Consciences and Public Reasons, supra note 108 at 33-38, 44-45.

131. However, my argument is consistent with the (compelling) meta-ethical view according to which a “consistent relativist” cannot treat others as thinkers at all. See Putnam, Hilary, Reason, Truth and History (Cambridge and New York: Cambridge University Press, 1981) at 124.CrossRefGoogle Scholar

132. For an instructive account of objectivity in meta-ethics and its various degrees, see Coleman, Jules, “The Practice of Corrective Justice” in Owen, David G., ed., Philosophical Foundations of Tort Law (Oxford: Clarendon Press; New York: Oxford University Press, 1995) 53 at 58-62.Google Scholar

133. See the relevant discussions above in Part II.B and in the last paragraph of Part III.A.

134. I expressly refer to the “force” and not to the “truth” or “correctness” of political arguments in order to avoid, as best I can, controversial notions in meta-ethics concerning moral realism, at one extreme, and relativism, at the other extreme. A forceful argument in the political sphere can be identified as such by both realists and relativists acting as citizens (as opposed to philoso-phers), though both might understand the validity of this political argument differently (one as the true argument and the other as an appealing argument).

135. Compare with the taxonomy of rational, irrational, and non-rational grounds mentioned, though neither explicitly invoked nor defended, in Greenawalt, Kent, Religious Convictions and Political Choice (New York: Oxford University Press, 1988) at 24, 57.Google Scholar

136. By using “verifiable” and “falsifiable,” both of which stem from the philosophy of science, I do not intend to equate political reasoning with scientific theories.

137. Not all common grounds for decisions are accessible, strictly speaking, to all or even most of the citizenry. Many scientific theories upon which public policies are built are of this kind. Nonetheless, these theories are sharable in the sense that they can be understood in principle.

138. Rawls, Political Liberalism, 2nd ed., supra note 120 at lvi n.32.

139. In this sense, the Habermasian maxim—only the force of the better argument, as opposed to the force of the speaker, counts—applies. See Habermas, Jurgen, The Theory of Communicative Action, trans. by McCarthy, Thomas (Boston, MA: Beacon Press, 1984) at 25–26.Google Scholar

140. Natural candidates for criteria for distinguishing between reasonable and unreasonable grounds can be based on, e.g., scientific knowledge (including social sciences), shared social experience, and ordinary moral common sense.

141. Mill, John Stuart, “Three Essays on Religion,” Collected Works of John Stuart Mill, ed. by Robson, J.M. (Toronto, ON: University of Toronto Press, 1969) vol. x, 369 at 405.Google Scholar More recently, Michael Perry (who is, after all, a living antithesis of Mill’s famous antagonism toward religion) claimed that “the Ultimate Reality … is, finally, beyond all thought and speech.” Perry, Love and Power: The Role of Religion and Morality in American Politics, supra note 57 at 72.

142. See the discussion in the text accompanying notes 58-60.

143. Michael Perry has acknowledged the centrality of the Ultimate ground for the religious adherents who participate in the democratic process. See Perry, Love and Power: The Role of Religion and Morality in American Politics, supra note 57 at 14-15, 20 (noting that excluding religious-based grounds “leaves me and many others at a serious disadvantage” and accordingly that “I would get to rely on only some of my relevant beliefs, not including the most important ones”).

144. See West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)Google Scholar (voiding expulsion of Jehovah’s Witnesses from public school because of refusal to salute the flag).

145. See, e.g., Sherbert v. Verner, 374 U.S. 398 (1963)Google Scholar (holding that citizens could not be disqualified from receiving unemployment benefits when their refusal to work was a consequence of their religious observance).

146. See, e.g., Smith, supra note 86. The polygamy cases among the Mormon community provide a familiar, historical example. See, in particular, Reynolds v. United States, 98 U.S. 145 (1878)Google ScholarPubMed (rejecting the claim of Mormons to a constitutional right to practice polygamy). Another familiar example is the Sikh religion’s duty of wearing the turban. This religious obligation might interfere, for instance, with a statutory requirement to wear crash helmets when riding a motorcycle or with admitting (male) Sikhs to work in jobs with a mandatory uniform that consists of a cap (e.g., public bus driver).

147. Kierkegaard, Søren, Philosophical Fragments, trans. by Swenson, David F. (Princeton, NJ: Princeton University Press, 1946) at 35.Google Scholar

148. As an aside, according to Hitchcock, the U.S. Supreme Court’s approach to the concept of religion can be interpreted along these lines (viz., acknowledging the anti-reason character of religion). See 2 Hitchcock, James, The Supreme Court and Religion in American Life (Princeton, NJ: Princeton University Press, 2004) at 123–29 Google Scholar (acknowledging the Supreme Court’s tendency to regard religion as a domain of inexplicable meaning).

149. For an opposite view, according to which religion is not only compatible with reason, but rather a quintessential public form of reasoning, see Finnis, John, “Religion and State: Some Main Issues and Sources” (2006) 51 Am. J. Juris.107.CrossRefGoogle Scholar Note that the view I advance in the main text does not deny that religion can, on occasion, be compatible with reason. However, I insist that certain religious arguments, of the kind that appeal to what I have dubbed the Ultimate Grounds, draw their effective hold on persons particularly because they stand beyond the reach of reason.

150. Weber, Max, “Science as a Vocation” in From Max Weber: Essays in Sociology, trans. and ed. by Gerth, H.H. & Mills, C. Wright (London: Routledge, 1991) 129 at 154.Google Scholar Religious faith “by virtue of the absurd” is, too, a recurring theme in Kierkegaard, Søren, Fear and Trembling, trans. by Walsh, Sylvia, ed. by Evans, C. Stephen & Walsh, Sylvia (Cambridge and New York: Cambridge University Press, 2006) esp. at 30, 61.Google Scholar

151. Max Weber, “Religious Rejections of the World and Their Directions” in ibid. at 352.

152. Weber, Max, Economy and Society, trans. by Fischoff, Ephraim et al., ed. by Roth, Guenther & Wittich, Claus (New York: Bedminster Press, 1968) Vol. II, Ch. VI at 567.Google Scholar See also Weber, “Science as a Vocation,” supra note 150 at 154 (referring to the “intellectual sacrifice”).

153. Indeed, as I mentioned earlier in this part of the paper (see text accompanying notes 127-33), there are grounds that every rational person would voluntarily omit because such grounds lack the pragmatic ability to influence other persons to support the argument that these grounds are sought to explain. Such grounds could be defective because they suffer from grammatical obscurity or from purely subjective content.

154. Wittgenstein, Ludwig, Philosophical Investigations, 3rd ed., trans. by Anscombe, G.E.M. (Oxford: Blackwell, 2001) at § 217 Google Scholar (“If I have exhausted the justifications [for my following the rule] I have reached bedrock, and my spade is turned. Then I am inclined to say: ‘This is simply what I do.’”)

155. Ibid. Another illustrative analogy from Wittgenstein can be found in his work, On Certainty. Wittgenstein states, with respect to the justifications given in support of knowing something to be certainly correct (e.g., a historical event), that “[t]o be sure there is justification; but justification comes to an end.” Wittgenstein, Ludwig, On Certainty, trans. by Paul, Denis & Anscombe, G.E.M., ed. by Anscombe, G.E.M. & Wright, G.H. von (Oxford: Blackwell, 1969) at § 192.Google Scholar

156. Versions of this argument have been offered by, e.g., Greenawalt, Religious Convictions and Political Choice, supra note 135 at 147; Perry, Love and Power: The Role of Religion and Morality in American Politics, supra note 57 at 55; Stephen L. Carter, “Evolutionism, Creationism, and Treating Religion as a Hobby” (1987) Duke L.J. 977 at 992. The most inspiring text in this regard is written by William James: “if we look on man’s whole mental life as it exists, on the life of men that lies in them apart from their learning and science, and that they inwardly and privately follow, we have to confess that the part of it of which rationalism can give an account is relatively superficial. It is the part that has the prestige …. But it will fail to convince or convert you all the same, if your dumb intuitions are opposed to its conclusions. If you have intuitions at all, they come from a deeper level of your nature than the loquacious level which rationalism inhabits.” James, Williams, The Varieties of Religious Experience (London and New York: Routledge, 2002) at 61–62.Google Scholar As I shall soon explain in the text, this approach fails to take seriously the attitudes presupposed by persons engaging in giving religious grounds as opposed to reason-based grounds. James himself did not, I believe, fall into this trap, for the paragraphs that follow the text quoted above make clear (or at least plausible) that James limited his argument to “the metaphysical and religious sphere” or “the religious realm” (i.e., James’s argument is applied to the supremacy of feeling the presence of god over rationalized knowledge of his existence). See ibid. at 62-63.

157. Rawls, A Theory of Justice, supra note 16 at 27.

158. See the discussion in the text accompanying notes 127-33.

159. At one point Weber notes with respect to scholarly progress, “[w]e cannot work without hoping that others will advance further than we have. In principle, this progress goes on ad infinitum.” Weber, “Science as a Vocation,” supra note 150 at 138 [the first set of italics are mine].

160. The latter part of the sentence is taken from Habermas, Jurgen, “Discourse Ethics: Notes on a Program of Philosophical Justification,” in Moral Consciousness and Communicative Action, trans. by Lenhardt, Christian & Nicholsen, Shierry Weber (Cambridge, MA: MIT Press, 1990) 43 at 80.Google Scholar This “performative contradiction” derives from the head-on collision between the “existential assumption” carried by the very fact of uttering the proposition and the content of that proposition. ibid.

161. Similarly, Nagel emphasizes the “preparedness to submit one’s reasons to the criticism of others, and to find that the exercise of a common critical rationality and consideration of evidence that can be shared will reveal that one is mistaken.” Nagel, “Moral Conflict and Political Legitimacy,” supra note 56 at 232.

162. See Weber, “Science as a Vocation,” supra note 150 at 155-56 (contrasting the “intellectual sacrifice in favor of an unconditional religious devotion” with the “plain duty of intellectual integrity”). See also Russell, Bertrand, Religion and Science (New York: Oxford University Press, 1997) at 14 Google Scholar (“A religious creed differs from a scientific theory in claiming to embody eternal and absolutely certain truth, whereas science is always tentative, expecting that modifications in its present theories will sooner or later be found necessary.”) [emphasis added].

163. See the discussion in the text accompanying notes 147-52.