Richard Garnett (Notre Dame), Revisiting the "Separation of Church and State" in Our Time of Deep Division:
Religious freedom, I believe, is a fundamental human right. Religious freedom does not matter because the Constitution protects it; instead, the Constitution (like modern human-rights law) protects it because religious freedom matters. It is not a gift from the government; it is a limit on the government. Every person, because he or she is a person, has the right to religious liberty—to embrace, or to reject, religious faith, traditions, practices, and communities. This freedom is enjoyed by, and is important to, religious believers and nonbelievers alike. Religious freedom, protected through law, helps both individuals and communities to flourish. It protects the “private” conscience and also promotes the “public,” common good. Religious or not, devout or not, we all have a stake in the religious-liberty project, and in the success of what Thomas Jefferson called our First Amendment’s “fair” and “novel” experiment.
Now, it is true that religious freedom is sometimes inconvenient for overreaching governments. Sometimes, it comes at a cost. Sometimes, it benefits people we think are just weird. Sometimes, it is abused. The same is true, of course, of other constitutional rights, like the right to be free from unreasonable searches, or the right to remain silent, or the right to protest and dissent. Legal and constitutional protections for fundamental human rights are sometimes inefficient; they sometimes get in the way. That our fellow citizens have constitutional and other legal rights means, sometimes, that we have to tolerate a lot of speech and action that we don’t like, that we disagree with, that irritates us, and that offends us. Religious freedom and free speech mean, necessarily, that there will be dissent, and dissenters. After all, if everyone agrees, these freedoms are unnecessary. A premise of our Constitution, though, is that—all things considered—they are worth it. ...
October 17, 2021 in Legal Education | Permalink