Weekend Reading: "The 'Law' in Dworkin's Treatment of Law and Religion"

Just posted on SSRN is my forthcoming short piece, "A Troublesome Right": The 'Law' in Dworkin's Treatment of Law and Religion. Comments and corrections welcome, as always. Here's the abstract:

In his final book, Religion Without God, Ronald Dworkin offers an eloquent and gloriously compact treatment of a massive subject--life, death, eternity, and the human condition. He also offers an application of his views on those broader questions to a narrower, more practical issue: the law of religious freedom. In this paper, I focus narrowly and critically on Dworkin's treatment of the law of religious freedom. 

Dworkin asks whether there is a principled "justification for offering religion a right to special protection that is exclusive to theistic religions," and if not, what the scope and nature of religious freedom should be. He ultimately proposes, in effect, to interpret "religion" broadly for purposes of "freedom of religion" but demote that freedom altogether. He would treat freedom of religion as "a very general right to what we might call 'ethical independence'" rather than as a "special right." As such, subject to some constraints, government could infringe freedom of religion without having to show a compelling interest in doing so. Dworkin would also, it appears, substantially limit the occasions on which government can or should provide legislative accommodations for burdened religious practices. What we have, when Dworkin is done, is basically a narrow version of the Supreme Court's decision in Employment Division v. Smith, but without that decision's receptivity to legislative rather than judicial accommodation of religion.

There is much to admire in Dworkin's broader arguments about religion in the book. His arguments about the law of religious freedom are quite another matter. The accuracy and persuasiveness of Dworkin's arguments on this issue rest substantially on three things: his statements about current law; the initial moves by which Dworkin clears the ground for his demotion proposal; and his applications of the demotion proposal, which he suggests could help lower the temperature of the culture wars. I argue that all three elements of Dworkin's argument for the demotion of religious freedom are deeply flawed.