Thomas C. Berg (University of St. Thomas, St. Paul/Minneapolis, MN – School of Law) has posted Secular Purpose, Accommodations, and Why Religion is Special (Enough) (80 U. Chicago L. Rev. Dialogue 24 (2013)) on SSRN. Here is the abstract:
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This article is a response to Micah Schwartzman's What If Religion Is Not Special? (U. Chi. L. Rev. (2012)) Schwartzman argues that existing approaches to the First Amendment's Religion Clauses are either (1) internally inconsistent because they because they treat religion as special for some purposes but not others or (2) unfair to both religion and nonreligion because they wrongly treat religion as different from deep or comprehensive nonreligious moral theories. He ultimately concludes that no existing theory is satisfactory and suggests expanding the clauses' reach to encompass comprehensive nonreligious moral views as well–which means that such views, like religious views, should be exempted from burdensome laws and should also be restricted in serving as the basis for legislation. Schwartzman argues that we are driven inexorably to this sort of general Rawlsian limitation on comprehensive theories as grounds for laws.
I argue that despite the virtues of his analysis, Schwartzman overstates two of his main conclusions. First, contrary to his charges of inconsistency, a theory may coherently treat religion as special for some purposes and not others. In particular, it is perfectly consistent to support religious accommodations while concluding that any constitutional restrictions on religion as a grounding for secular laws should be minimal, perhaps nonexistent. Second, the charge that it is unfairn to treat religion and nonreligion differently is also overstated. Religion has distinguishing features that justify treating it distinctively. We can extend such treatment to systems that share the same features but have not traditionally been called religious, but the extension should be limited—more limited than Professor Schwartzman proposes.