This essay endeavours to restate the case for the right to freedom of conscience and religion. Specifically, it seeks to make the case for exemptions from the law of the land for religious believers and similarly-situated citizens who hold sincere conscientious beliefs. The rule of law is not something to be ignored, and carving out exemptions for conscience has been criticized as unfair, anomalous, potentially open-ended in scope, and difficult to administer. I attempt to assuage these legitimate concerns by underscoring the importance of the dignity of the individual and the virtue of protecting religious minorities (and dissenters of all stripes), who challenge the conventions of the day. If the default position is the rule of law, believers face an uphill task. Ultimately, only a truly liberal polity can offer protection to what, in every age, is a fragile liberty.
The essay argues that religion is a much “fuller” concept than equality, as substantial and weighty as equality is derivative and hollow. The empty, tautological, misleading, but rhetorically powerful nature of equality was compellingly demonstrated by Peter Westen, a generation ago. It is ironic that, despite the manifest inadequacy of equality as an independent good, in the increasingly strident clashes between religionists and those asserting claims based on equal treatment, or freedom from discrimination, the former tend to lose on the whole. All rights are said to be on the same level. As the courts repeatedly pronounce, there is no hierarchy. But the empirical experience of the Kulturkampf belies that assertion. This essay seeks to return the contest to a more even playing field by demystifying some of the ascendant-like claims of equality in contemporary rights disputes.
Religious liberty enjoys a large measure of protection in liberal democratic states. This historically hard-won right will nevertheless always remain somewhat vulnerable. This article examines the relationship between liberalism and religionists who challenge key liberal tenets. The limits of liberal tolerance are seen when the state confronts those devout believers who behave or speak in the public domain in a manner that secular liberals perceive to be intolerant or bigoted. The courts and legislatures cannot be relied upon to protect the exercise of religion in situations where fundamental liberal premises are at stake.