Is Religion Special?

I just returned from the Annual Law and Religion Roundtable held at the Northwestern Law School and organized by Nelson Tebbe, Paul Horwitz, Rick Garnett and hosted by Andy Koppelman (who presented chapters from an excellent forthcoming book of his). It was a wonderful conference despite too many of my rambling interventions. Two themes in the many papers particularly interested me. One of them was the question of whether religion is special. Several of the papers focused on this in terms of general free exercise claims. My own view is that religious claims for exemptions should clearly be honored over general liberty claims, but I see no good argument for honoring religious claims for exemptions over non-religious claims of conscience. My only reservation involves the kind of utilitarian who believes as a matter of conscience that she must maximize social welfare in every action she takes. For her, there is no line between conscience and anything else she does. My inclination is not to consider that a conscience claim for legal purposes, but I am not sure.

A subsidiary question is whether religious associations are special and should be so treated under the law in some circumstances. Here I think explaining the special character of religion for legal purposes is easy though the explantion is controversial. More difficult is assessing when religious association should be treated differently from other associations and when not. I will return to this issue in subsequent posts.

cross-posted at religiousleftlaw.com

comments open, but I doubt I will have time to respond