Document Type
Essay
Abstract
This symposium was convened to explore the rights of businesses
and employees to invoke freedom of religion or freedom of expression
to resist certain forms of state regulation. The most immediate
occasions for that discussion, at least for my purposes, are cases such
as 303 Creative LLC v. Elenis, in which the Supreme Court upheld the
right of a website designer to refuse to design a wedding website for a
same-sex couple. These sorts of cases, which pit the religious or
expressive rights of conscientious believers against the equality rights
of others, have proliferated in recent years.
I have three main, intertwined, goals in this Essay. One is to zoom
out and offer some thoughts about the general architecture of
freedom of religion—specifically the question of religion-based
exemptions—and freedom of speech, and their relation to each other.
Another is to explore how that architecture has been warped, partly by
the imperatives of litigation, but also by the effects of our current state
of national polarization. A third is to say something about the mutual
responsibility that should—even in a polarized age—set the terms for
honest, good faith, mutual, normative encounter.
Along the way, I also want to stake out a position about legal
scholarship. This Essay suggests that some of the legal challenges that
businesses might raise against certain forms of government regulation
are in principle impossible to adjudicate, though judges in our system
of law will need to hand a verdict to one side or the other. That might
not seem like a helpful contribution. But legal scholars are not put on
earth just to solve legal disputes or unravel doctrinal puzzles. Part of
their job is to identify contradiction and even intractability.
Moreover, if we take the relationship between religion and state
to involve a genuinely mutual encounter, in which each side makes
normative claims but also has potential normative responsibilities,
then scholars in the field might want to speak at times in something
approaching a theological or at least sociological register. That is not
something that judges can or should do. It is also intellectually risky
and fraught for anyone looking at a religious tradition from the
outside. But, in this Essay at least, I find it necessary, humbly and
tentatively, to challenge believers to help make their own sense of the
structural difficulties that I will be trying to describe.
Recommended Citation
Perry Dane,
Thoughts on the Architecture of Freedom of Religion and Freedom of Speech,
99
Notre Dame L. Rev. Reflection
247
(2024).
Available at:
https://scholarship.law.nd.edu/ndlr_online/vol99/iss4/2