The First Amendment’s Religion Clauses: “Freedom of Conscience” Versus Institutional Accommodation

Michael J. White

San Diego Law Review

Abstract: The phrase “freedom of conscience” is, of course, not to be found in the United States Constitution: the First Amendment says only that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” However, it seems probable that one, then-contemporary Protestant conception of freedom of conscience was presupposed in these two clauses. Evidence for this conjecture can be found not only in the debate and proposals concerning the Bill of Rights of the United States Constitution but also in the frequently more expansive language of early state constitutions.

White MJ. The First Amendment’s Religion Clauses: “Freedom of Conscience” Versus Institutional Accommodation. 47 San Diego L. Rev. 1075 (2010).

Theses on Secularism

Nomi M. Stolzenberg

San Diego Law Review

Abstract: Notwithstanding the notorious difficulty of defining religion and the consequent effort on the part of jurists and academics to avoid embracing any particular definition, one model of religion has dominated modern discourse: religion as conscience. Because of the dominance of this model, alternative views – which either subordinate the conscience to other supposedly more fundamental features of religion or dispense with the psychological apparatus of conscience altogether – have been largely submerged in modern political and legal discourse. Yet they will not remain suppressed. As a number of the conference papers have attest, alternatives and challenges to the dominant model have been surfacing with increasing regularity and insistence, particularly in the last decade, in part because the logic of the model seems to have exhausted or deconstructed itself, or driven itself into a corner, but also because theoretical rivals to the conception of religion as conscience have always existed, have never disappeared, and have never stopped pressing their claims.

Stolzenberg NM. Theses on Secularism. 47 San Diego L. Rev. 1041 (2010).

From Religious Freedom to Moral Freedom

Michael J. Perry

San Diego Law Review

Abstract: The right to moral freedom is not only analogous to the right to religious freedom. The right to moral freedom, as I explain in this essay, represents a broadening of the right to religious freedom – a broadening that for many of us is compelling.

Perry MJ. From Religious Freedom to Moral Freedom. 47 San Diego L. Rev. 993 (2010).

Comment on Koppelman and Leiter

Christopher T. Wonnell

San Diego Law Review


Andrew Koppelman has offered a challenge to Brian Leiter’s view that the proper public attitude toward religion is one of tolerance rather than active respect. Let us explore the nature of that challenge and offer a few observations on the topic.

Wonnell CT. Comment on Koppelman and Leiter. 47 San Diego L. Rev. 987 (2010).

How Shall I Praise Thee? Brian Leiter on Respect for Religion

Andrew Koppelman

San Diego Law Review

Abstract: In two recent papers, Brian Leiter argues that there is no good reason for law to single out religion for special treatment and religion is not an apt candidate for respect in the “thick” sense of being an object of favorable appraisal. Special treatment would be appropriate only if there were some “moral reason why states should carve out special protections that encourage individuals to structure their lives around categorical demands that are insulated from the standards of evidence and reasoning we everywhere else expect to constitute constraints on judgment and action.” Favorable appraisal would be called for “[o]nly if there were a positive correlation between beliefs that were culpably without epistemic warrant and valuable outcomes. Both arguments depend on a radically impoverished and conception of what religion is and what it does. In this paper, I will explain what Leiter leaves out and offer a hypothesis about why. I will also engage with some related reflections by Simon Blackburn and Timothy Macklem, both of whom influence, in different ways, Leiter’s analysis.

Koppelman A. How Shall I Praise Thee? Brian Leiter on Respect for Religion. 47 San Diego L. Rev. 961 (2010).

Foundations of Religious Liberty: Toleration or Respect?

Brian Leiter

San Diego Law Review

Abstract: Most Western constitutions, including the American, single out religious beliefs and practices for special kinds of legal solicitude and protection. In this essay, I want to ask a question about the moral foundations of such a legal practice. Should we think of what I will refer to generically as “the law of religious liberty” as grounded in the moral attitude of respect for religion or on the moral attitude of tolerance of religion? My question will not be which of these moral ideals best explains the existing law of religious liberty in the United States, or elsewhere, though legal doctrine is a relevant data point for the inquiry. Instead, I want to ask which of these moral attitudes makes the most sense given what religion is. Of course, our legal practices offer some evidence about “what makes the most sense” because they are, quite obviously, not detached from our moral attitudes. But the law is but one data point among others, and if it were to turn out that aspects of existing legal doctrine in the United States should yield before the best account of the moral foundations of religious liberty that is a conclusion I am happy to endorse.

Leiter B. Foundations of Religious Liberty: Toleration or Respect? 47 San Diego L. Rev. 935 (2010).

Religion and conscientious objection: a survey of pharmacists’ willingness to dispense medications

Laura A.Davidson, Clare T.Pettis, Amber J.Joiner, Daniel M.Cook, Craig M.Klugmand

Social Science & Medicine

Abstract: Some US states allow pharmacists to refuse to dispense medications to which they have moral objections, and federal rules for all health care providers are in development. This study examines whether demographics such as age, religion, gender influence 668 Nevada pharmacists’ willingness to dispense or transfer five potentially controversial medications to patients 18 years and older: emergency contraception, medical abortifacients, erectile dysfunction medications, oral contraceptives, and infertility medications. Almost 6% of pharmacists indicated that they would refuse to dispense and refuse to transfer at least one of these medications.  Religious affiliation significantly predicted pharmacists’ willingness to dispense emergency contraception and medical abortifacients, while age significantly predicted pharmacists’ willingness to distribute infertility medications.  Evangelical Protestants, Catholics and other-religious pharmacists were significantly more likely to refuse to dispense at least one medication in comparison to non-religious pharmacists in multinomial logistic regression analyses.  Awareness of the influence of religion in the provision of pharmacy services should inform health care policies that appropriately balance the rights of patients, physicians, and pharmacists alike.  The results from Nevada pharmacists may suggest similar tendencies among other health care workers, who may be given latitude to consider morality and value systems when making clinical decisions about care.

Davidson LA, Pettis CT, Joiner AJ, Cook DM, Klugman CM. Religion and conscientious objection: a survey of pharmacists’ willingness to dispense medications. Soc Sci Med. 2010 Jul;71(1):161-5. Epub 2010 Apr 13. PubMed PMID: 20447746

Islamic Biomedical Ethics: Principles and Application

Islamic Biomedical Ethics: Principles and Application

Sachedina A. Islamic Biomedical Ethics: Principles and Application. Oxford: University Press; 2009. Print ISBN-13: 9780195378504. DOI:10.1093/acprof:oso/9780195378504.001.0001

Abstract:This book undertakes to correlate practical ethical decisions in modern medical practice to principles and rules derived from Islamic juridical praxis and theological doctrines. This study links these rulings to the moral principles extracted from the normative religious texts and historically documented precedents. Western scholars of Islamic law have pointed out the importance of the historical approach in determining the rules and the juristic practices that were applied to the cases under consideration before the judicial opinions were issued within a specific social, economic, and political context. These decisions reflected aspects of intellectual as well as social history of the Muslim community engaged in making everyday life conform to the religious values. Ethical decisions are an important part of interpersonal relations in Islamic law. Practical guidance affecting all facets of individual and collective human life, have been provided under the general rules of “Public good” and “No harm, no harassment.” However, no judicial decision that claims to further public good is regarded authoritative without supporting documentation from the foundational sources, like the Qur‘an and the Sunna (the exemplary tradition of the Prophet). Hence, Muslim jurists, in order to infer fresh rulings about matters that were not covered by the existing precedents in the Qur‘an and the Sunna, undertook to develop rational stratagems to enable them to solve problems faced by the community. This intellectual activity led to the systematic formulation of the principles of Islamic jurisprudence, which has assumed unprecedented importance in connection with the distinct field of medical ethics in the Islamic world that shares the modern medical technology with the West. The book argues that there are distinct Islamic principles that can serve as sources for Muslim biomedical ethics that can engage in dialogue with both secular and other religiously oriented bioethics in the context of universal medical practice and research.

“Abdulaziz Sachedina is the leading Islamic thinker writing in Engish today.  Thus, his Islamic Biomedical Ethics is a welcome addition to the already extensive literature in the field because of his great knowledge of the classical and modern Islamic legal and ethical sources, his authentic religious commitment to the truth of Islam, and his willingness to engage perspectives from other traditions in what is becoming a genuinely multicultural field of moral discourse.”  David Novak, author of Jewish Social Ethics