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).

Alternative Burdens on Freedom of Conscience

Adam J. Kolber

San Diego Law Review

Abstract: Suppose a pharmacist refuses to dispense pills that induce abortion claiming that dispensing such pills runs counter to principles he holds dear. Indeed, the pharmacist claims that forcing him to dispense the pills would violate his freedom of conscience. He even claims that he would not have become a pharmacist had he foreseen an obligation to dispense such pills at the time he entered his profession. Should the pharmacist’s job be protected if he is making a bona fide claim of conscience? And does it matter whether the pharmacist’s objection to dispensing the pills is rooted in religious or nonreligious reasons?

Kolber AJ. Alternative Burdens on Freedom of Conscience, 47 San Diego L. Rev. 919 (2010).

The Significance of Conscience

Kent Greenawalt

San Diego Law Review

Abstract: Conscience, like most words that describe human experience and recommend human action, has changed its meanings over time and takes on subtly different meanings in different contexts. Since the time of Thomas Aquinas, when conscience referred to moral judgments about action, and our founding era, when “freedom of conscience” dominantly referred to individual religious liberty, our understanding has evolved. In this paper, I concentrate on present usage. My aims are partially descriptive and mainly normative. My hope is that by clarifying various ways the notion of conscience is conceived, I can contribute to a thoughtful elaboration of normative issues concerning responses to assertions of conscience and to near relatives of such assertions.

Greenawalt K. The Significance of Conscience. 47 San Diego L. Rev. 901 (2010).

Against freedom of conscience

Richard J. Arneson

San Diego Law Review

Introduction: Is there a moral right to freedom of conscience? Should a legal right to freedom of conscience be established in each country on Earth? This essay argues for negative answers to both questions. 

The term freedom of conscience might refer to freedom of thought and the freedom of expression that sustains freedom of thought. In this sense we might affirm the right of each person to form individual opinions about the right and the good, about what we owe one another by way of due consideration of others, and about what is worthy of pursuit in life, on the basis of free discussion of these matters. In the present discussion, these freedoms, important as they might be, are not under consideration. Let us assume freedom of thought and expression are secured. The status of freedom of conscience in the sense that is our concern in this discussion is still wide open. . .

Arneson RJ. Against freedom of conscience. 47 San Diego L. Rev. 1015 2010

The physician’s right to conscientious objection: an evolving recognition in Europe

Tom Goffin

Medicine and Law

Abstract: Due to the growing number of medical treatments, physicians–who are also human beings with their own conscience and beliefs–are increasingly confronted with treatments that may conflict with their principles and convictions. Although several human rights documents recognize the freedom of conscience and belief, we could not locate the recognition of an explicit right to conscientious objection. Furthermore, a direct application of the right to freedom of thought, conscience and religion, as recognized by article 9 of the ECHR, does not include such a right due to the narrow interpretation of this right by the European Court of Human Rights. However, the Court seems to have taken steps away from this narrow interpretation in Pichon and Sajous v. France. Notwithstanding these steps, no general right to conscientious objection exists. Physicians therefore are dependent on a judgment if they refuse a certain treatment because of conscientious objections.

Goffin T. The physician’s right to conscientious objection: an evolving recognition in Europe. Med Law. 2010 Jun;29(2):227-37.

Conscientious objection to assigned work tasks: A comment on relations of law and culture

Roger Cotterrell

Comparative Labor Law & Policy Journal

This paper considers how far a legal-cultural perspective may help to explain contrasts in approaches, in different jurisdictions, to a particular legal issue addressed by five national reports on which the paper comments. The issue is: how should law respond to employees’ objections, on grounds of conscience, to being required to perform particular work tasks assigned by their employers, or to being required to perform them in particular ways? The national reports discussed relate to Japan, the United States, Germany, Israel and Spain. The paper argues that cultural factors can influence not only law’s response but also the ways in which the issue of conscience is understood, contextualised and legally presented.

Cotterrell R. Conscientious objection to assigned work tasks: A comment on relations of law and culture. Queen Mary University of London, School of Law Legal Studies Research Paper No. 104/2012.  Comparative Labor Law & Policy Journal, volume 31 (2010), 511-22