Religious Freedom and the Nondiscrimination Norm

Returning to a Prawfsblawg hobby-horse of mine . . . here's a paper of mine, finally in shape for SSRN posting, from a really fun conference (more here and here) that Austin Sarat and Paul Horwitz organized down at Alabama last year.  And, here's the first bit of the abstract:

“Discrimination,” we believe, is wrong. And, because “discrimination” is wrong, we believe that governments like ours – secular, liberal, constitutional governments – may, and should, take regulatory and other steps to prevent, discourage, and denounce it.  However, it is not true that “discrimination” is always or necessarily wrong.  Nor is it the case that governments always or necessarily should or may
regulate or discourage it even when it is. Some wrongs are beyond the
authorized reach of government policy; some are too difficult or costly to
identify, let alone regulate; others are none of the government’s business.

When we say that “discrimination” is wrong, what we actually mean is that wrongful discrimination is wrong, and when we affirm that governments should oppose it we mean that governments should oppose it when it makes sense, all things considered, and when it is within their constitutionally and morally limited
powers to do so. To label a decision or action “discrimination” is simply to
note that one factor or another was or will be taken into account in the course
of a decision; it is to invite, but not at all to answer, the questions whether
that decision or action was or would be wrong, and whether the public authority
may or should forbid or discourage it.