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51 Am. J. Juris. 107 (2006)


Public reason's default position is not atheism or agnosticism about the dependence of everything on a transcendent Creator. On the contrary, there is good reason to judge that there is such a transcendent cause, capable of communicating with intelligent creatures, that one of the world's religions may be essentially true and others substantially truer than atheism, and that there is a human or natural right to immunity from coercion in religious inquiry, belief (or unbelief, precisely as such), and practice so far as is compatible with public order, that is with the rights of others, public peace and public morality. Contrary to the arguments of legal theorists such as Dworkin, Eisgruber and Sager, and the "mystery" passage in Planned Parenthood v. Casey, the right to religious freedom should not be regarded as a mere instance of a general right to choose one's lifestyle and ethical beliefs or passionate choices. At the same time, any religious beliefs or practices which deny or overlook that right to religious liberty, and which encourage or license intimidation in relation to religious belief or in the name of religion, are not immune from coercive defensive measures where necessary for the protection of the rights of others or of the other aspects of public order. Such measures discriminate amongst religions justifiably.


Reprinted with permission of American Journal of Jurisprudence.



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