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Tuesday, July 10, 2012

Steve Smith guest-blogging at the CLR Forum

A special summer treat for law-and-religion folks:  Steve Smith (San Diego) is guest-blogging over at the Center for Law and Religion's blog.  In this post, "Religious Freedom and the Social Contract," Steve responds to the increasingly prevalent view that special protections for religious liberty -- of the kind afforded by our First Amendment -- depend for their justification on "theistic premises that are no longer admissible in a liberal political order."  So . . . what next?

Steve suggests that "special protection for religious freedom is a central part of the social contract, and that it would be both unjust and imprudent for government to violate that contract": 

We all participate (or decline to participate) in our political and social order based on some understanding of what its terms are– what government can expect of us, what we can expect of government, what we can expect government not to do.  These terms form a sort of “social contract,” but they are not derived from any thought experiment based on a fictional “state of nature” or “pre-political condition” or “original position.”  Rather, they are real terms, partly written but largely unwritten, that we perceive in our law, traditions, and practices.  The terms are subject to interpretation, of course, and no doubt they may change over time– occasionally through deliberately enacted law, more often through gradual and almost imperceptible cultural evolution.  Nonetheless, at any given time we have some sense of the terms of this implicit but quite real “social contract.”

So long as government honors the terms, we may feel some obligation to render our support and allegiance.  Conversely, if government disregards or violates the terms of the “contract,” our loyalty is betrayed and our commitment compromised.

Check out the whole thing, and also Steve's several other thoughtful posts.

Posted by Rick Garnett on July 10, 2012 at 09:49 AM in Rick Garnett | Permalink

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