Should Public Law Accommodate the Claims of Conscience?

In the end, it seems to me, the matter boils down to a single issue. Many individuals consider themselves bound by two sources of authority, public law and conscience, whose demands do not always coincide. Is the state prepared to take cognizance of this fact, and if so, how should it respond? Unlike other regimes, liberal democracies should not find these questions unduly challenging. To be a liberal state is to recognize limits on the legitimate scope of public authority; to be a liberal democracy is to recognize limits on the authority of the people and on the writ of law enacted by majorities. And it was the clash between civil law and religion that gave rise to the idea of limited public authority. The claims of conscience found, and continue to find, their place within the space this limitation opened up

Why Liberal Tolerance, Rightly Understood, Is Coherent and Defensible

One of the most familiar criticisms of liberal democracy is that it cannot defend itself against its enemies while remaining true to its principles. This criticism is odd as well as unjust because theorists regarded as arch-liberals offer compelling reasons to reject it. .

Promoting tolerance for the twenty-first century

Polis : Revista de Estudos Jurídico-Políticos. - ISSN 0872-8208. - N. 6 (1998). - p. 65-70

Why The Ministerial Exception Is Consistent With Smith—And Why It Makes Sense

This conference puts on the table two linked questions: Can Hosanna-Tabor be reconciled with Employment Division v. Smith and, if so, on what basis? Let me say straightway that I have at most an amateur’s understanding of constitutional law and jurisprudence. I bring to our questions some intuitions about the best framework for thinking about them, and whatever light my home discipline of political theory can shed on them. I have also benefitted enormously from Christopher Lund’s splendid law review article on the topic of this conference

Religion, Conscience, and the Case for Accommodation

I do not believe that religion is an obsolete constitutional category. But I do believe that the holdings in United States v. Seeger and Welsh v. United States, the Vietnam-era draft cases that extended conscientious objector status to individuals invoking nonreligious claims, were correct. Can I consistently embrace both propositions? I think I can. My argument, in brief, is that religion is indeed special. But when we understand what it is about religion that warrants both distinctive privileges and distinctive burdens, we will see that some other systems of belief track these features of religion closely enough to warrant comparable treatment. Still, religion is the exemplary core of the genus of such beliefs

Sexuality and the System of Liberty : Comment on Stolzenberg

Marriage and liberal democracy are forms of ordered liberty, one standing between sexual license and ascetics, and the other standing between anarchy and oppression. The relationship between liberal democracy and sexual liberty can be framed using four strategies devised by the liberal democratic project to limit the scope of personal freedom. This article places Stolzenberg\u27s theory of love and liberty within the fourth strategy, which places limits on individual conduct through personal development and perfection. The author concludes that Stolzenberg is too bold for resting ordered sexual liberty on love, and suggests that the ultimate test for any form of social institution is if it can bear the sacrifices its survival requires