San Diego Law Review

Document Type

Is Religion Outdated (as a Constitutional Category)?


Crucial to Leiter’s overall case is the claim that there is no credible reason to accommodate religious objectors but not secular objectors: “[N]o one has been able to articulate a credible principled argument . . . that would explain why . . . we ought to accord special legal and moral treatment to religious practices.” He reaches this skeptical conclusion, in significant part, because he takes religion to be afflicted with a troubling defect, that is, religion involves commitment to categorical demands that are insulated from scientific and commonsensical scrutiny. But, I will argue, there is no good reason to believe that religion characteristically involves a commitment on the part of religious believers to insulate their normative convictions from critical scrutiny—scientific, commonsensical, or otherwise. I will also argue that, absent that supposed defect, one of the arguments canvassed by Leiter provides a credible consequentialist rationale for religious accommodation. That secular argument, I believe, can be amplified by various and sundry religious considerations. I conclude that the combination of these secular and religious considerations provides a credible overall case in favor of accommodating religious objectors, though not uniquely accommodating them. I take it that this marriage between religious and secular considerations is a normal and desirable, even if not obligatory, basis for the kind of political practice under discussion.

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Religion Law Commons