San Diego Law Review

Article Title

How Much Autonomy Do You Want?

Library of Congress Authority File


Document Type

Is Religion Outdated (as a Constitutional Category)?


At root, the questions of special accommodation and religious adjudicatory independence arise most urgently when a government grows in its reach and ambition. After all, if most areas of life, including those that touch on religious life, are left to people’s private arrangement, then not much special accommodation will be necessary. But when government takes control over more and more areas of life, regulating who shall do what and under what rules and conditions, then clashes with one or another religious way of life are almost inevitable. The dispute over government mandates to provide abortive drugs and contraception, in the framework of increasing government control and possible takeover of health care in America, is merely a well-known recent example. With a relatively open market in health care and private health insurance, religious institutions needed no special exemptions to adopt their own approaches on questions of contraception and abortion as on other matters. But greatly increased government regulation implies more uniform standards and rules and hence more controversy over whether there should be religious exemptions, and if so, for whom, to what degree, and on what terms. Special accommodation for religion and special adjudicatory powers are problematic for reasons I have tried to suggest. In the long run, especially under less than favorable social circumstances, they might not be workable. If not, then society may ultimately have to choose between big government—an ever-growing and ever-more-powerful administrative and redistributive state—on the one hand, and lively religious pluralism and thriving religious life on the other. This, it seems to me, and not the dubious panaceas of religious exemption and group autonomy, is what religious people and groups ought to fix their attention on.

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