Religious Freedom and the Nondiscrimination Norm

Document Type

Book Chapter

Publication Date

2012

Publication Information

in Legal Responses to Religious Practices in the United States 194 (Austin Sarat ed., 2012)

Abstract

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Garnett argues that religious liberty and the nondiscrimination norm are both foundational constitutional commitments, but they are not absolute and frequently come into tension. Rather than assuming that nondiscrimination should always prevail over religious liberty (or vice versa), courts should recognize that constitutional government is also a system of limited government that protects the autonomy of religious institutions and other voluntary associations.

His principal claim is that not all discrimination is wrongful, and even some wrongful discrimination lies beyond the government's constitutional authority to regulate.

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