Religious liberty has always been controversial. Even in America, with its history of religious dissent and with the Constitution's affirmative protection of the right to the "free exercise" of one's faith, the very idea of positive religious liberty is objectionable to a great many persons. Religious liberty is on the defensive today, now perhaps as much as ever in our nation's history.
To some extent this is inevitable. American religious liberty originally rested, fundamentally, on essentially religious premises -- premises that are no longer universally shared in an increasingly secular society. Religious freedom as a constitutional arrangement only makes sense on the premises that God exists; that God makes claims on the loyalty and conduct of human beings; and that such claims, rightly perceived and understood, are prior to and of superior obligation to the claims of any human authority. The First Amendment's religion clauses are predicated on such an understanding. As society's acceptance of the premises declines, so does its commitment to the constitutional principle.
In this presentation, Michael Paulsen examines, and strips to their essential elements, what he thinks are the four main "objections" to religious liberty in the strong form of religion-specific exemptions from secular laws -- and then suggests possible responses to each. Put colloquially, the intuitions forming the objections are:
(1) that "The law should be the same for everyone" -- that is, that there should not be such a thing as religious accommodations; (2) that "Religion isn't a real thing" -- and therefore ought not receive affirmative protection in any form; (3) that "People will abuse it" -- that is, that protecting religious liberty will lead to false claims and perverse incentives; and (4) that "Religious liberty is harmful to others" -- and thus should be rejected in principle.
Professor Paulsen will suggest that each of these objections, in one way or another, is actually an objection to the idea of religious liberty and to the existence of the Constitution's protections of it. By unmasking and examining the objections, we go a long way toward understanding and vindicating the true objective of the Constitution's surprisingly radical embrace of religious liberty.
Michael Stokes Paulsen is Distinguished University Chair & Professor of Law at the University of St. Thomas, where he has taught since 2007. Professor Paulsen was previously the McKnight Presidential Professor of Law & Public Policy and Associate Dean at the University of Minnesota Law School, where he taught from 1991-2007. He is a graduate of Northwestern University, Yale Law School, and Yale Divinity School. He has served as a federal prosecutor, as Attorney-Advisor in the Office of Legal Counsel of the U.S. Department of Justice, and as counsel for the Center for Law & Religious Freedom.
Professor Paulsen is the author of more than ninety scholarly articles and book chapters on a wide variety of constitutional law topics. He is co-author, with Luke Paulsen, of The Constitution: An Introduction (Basic Books, 2015). Professor Paulsen is also co-author of the casebook The Constitution of the United States, (with Steve Calabresi, Michael McConnell, Samuel Bray, and Will Baude -- Foundation Press, 3d ed. 2017) and Editor of Our Constitution: Landmark Interpretations of America's Governing Document (The Federalist Society 2013).
Professor Paulsen is one of the nation's leading scholars on the U.S. Constitution and specifically on the constitutional law of religious liberty.
Click here to download a two-page outline for this lecture.