Document Type

Article

Publication Title

Buffalo Law Review

Volume

70

Publication Date

2022

Keywords

reproductive rights, constitutional law, religious law

Abstract

Supporters of reproductive rights and of queer rights may sometimes live in harmony with advocates for religious exemptions. But sometimes these goals conflict. This Article explores this tension as a matter of liberal democratic theory and U.S. constitutional law, offering a case for seeing a robust pluralism as contained within a proper understanding of the liberal democratic state. The state’s claimed authority may be the starting point, but just as the modern state was born in decentralized religious toleration, so should the modern state accommodate religious and other views of the good that compete with the state’s own views. The Article sets forth a conception of the proper agnostic approach of the modern liberal state and explains how there is a distinctive case for accommodating religious belief. The Article also takes a wider lens to the problem, describing a case against political obligation and legitimacy and for acknowledging multiple possible sources of authority, and showing how the pairing of the two buttresses claims for accommodation from general law. In the final Part, the Article addresses types of harm to the body politic that may outweigh substantial burdens on religious practice, focusing on protection of equality in public accommodations law. The Article also explores issues presented by religious groups that wish to live apart from the rest of the community. While the state should accommodate such groups to the extent possible, liberal pluralism demands that when members choose to remain in the group, the decision is knowing and voluntary. The Article concludes that there is no “tragic loss” when the state accommodates, or fails to accommodate, a person or group following their own comprehensive conception of the good. Accommodation often reflects appropriate toleration of, and perhaps even respect for, the dissenting person or group, while insistence on uniform application of law may reflect core conditions such dissenters must accept, conditions that help buttress their own (often religious) liberty.

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