Religious Freedom in an Egalitarian Age PDF
Preview Religious Freedom in an Egalitarian Age
RELIGIOUS FREEDOM IN AN EGALITARIAN AGE RELIGIOUS FREEDOM IN AN EGALITARIAN AGE Nelson Tebbe Cambridge, Massachusetts London, England 2017 Copyright © 2017 by the President and Fellows of Harvard College All rights reserved Printed in the United States of Amer i ca First printing Library of Congress Cataloging- in- Publication Data Names: Tebbe, Nelson, author. Title: Religious freedom in an egalitarian age / Nelson Tebbe. Description: Cambridge, Mas sa chu setts : Harvard University Press, 2017. | Includes bibliographical references and index. Identifi ers: lccn 2016013961 | isbn 9780674971431 (alk. paper) Subjects: lcsh: Freedom of religion— United States. | Equality before the law— United States. | Discrimination— Law and legislation— United States. | Discrimination— Religious aspects. | Civil rights— United States. | Civil rights— Religious aspects. | Sexual minorities— Civil rights— Religious aspects. | Law— Methodology. Classifi cation: lcc kf4783 .t43 2017 | ddc 342.7308/52— dc23 lc rec ord available at https:// lccn . loc . gov / 2016013961 Brought to you by | New York University Authenticated Download Date | 3/2/19 2:40 PM For Diana CONTENTS Preface ix Introduction 1 I: METHOD 1. Social Coherence 25 2. The Skeptics’ Objections 37 II: PRINCI PLES 3. Avoiding Harm to Others 49 4. Fairness to O thers 71 5. Freedom of Association 80 6. Government Nonendorsement 98 III: APPLICATIONS 7. Public Accommodations 115 8. Employment Discrimination 142 9. Public Offi cials 164 10. Government Subsidy and Support 182 Afterword 198 Notes 201 Index 259 PREFACE For extraordinary generosity in reading the manuscript and offering thoughtful advice, I am grateful to Carlos Ball, Corey Brettschneider, Alan Brownstein, Mary Anne Case, James Childress, Marc DeGirolami, Chad Flanders, Katherine Franke, Kent Greenawalt, Abner Greene, Jeremy Kes- sler, Andrew Koppelman, Cécile Laborde, Kara Loewentheil, Stephen Macedo, Patricia Marino, Charles Mathewes, Mark Movsesian, James Nelson, Elizabeth Platt, Lawrence Sager, Richard Schragger, Micah Schwartzman, Elizabeth Sepper, Steven Shiffrin, and two anonymous re- viewers. Extraordinarily valuable research assistance was provided by Steven Bovino, Alex Goldman, John Moore, and Alana Siegel. The work also ben- efi ted from workshops at the Annual Law and Religion Roundtable, the American Association of Law Schools’ Section on Sexual Orientation and Gender Identity Issues, Brigham Young University School of Law, Brooklyn Law School, Cornell Law School, Saint John’s University School of Law, Temple University Beasley School of Law, University of Detroit Mercy School of Law (McElroy Lecture on Law and Religion), University of Texas School of Law, University of Virginia School of Law, and Washington Uni- versity in Saint Louis School of Law. Generous fi nancial support came from Cornell Law School and the Dean’s Summer Research Program at Brooklyn Law School. Although all the writing is new, and although many of the arguments have been revisited, the fi rst two chapters further explore themes dis- cussed in “Religion and Social Coherentism,” Notre Dame Law Review 91 (2015): 363–403. Chapter 3 is indebted to various pieces written with ix x • Preface Richard Schragger and Micah Schwartzman, including “When Do Reli- gious Accommodations Burden Others?,” in The Conscience Wars: Re- thinking the Balance between Religion, Identity, and Equality, edited by Susanna Mancini and Michel Rosenfeld (Cambridge: Cambridge Univer- sity Press, forthcoming), and “How Much May Religious Accommodations Burden Others?,” in Law, Religion, and Health in the United States, edited by Elizabeth Sepper, Holly Fernandez Lynch, and I. Glenn Cohen (Cam- bridge: Cambridge University Press, forthcoming). Chapter 6 builds on “Government Nonendorsement,” Minnesota Law Review 98 (2013): 648– 712, and Chapter 10 owes some of its ideas to “Excluding Religion,” Uni- versity of Pennsylvania Law Review 156 (2008): 1263–1339. Finally, I would like to offer warm thanks to my editor, Thomas LeBien, for his wisdom, vision, and unfailing patience.
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