THE FREE EXERCISE CLAUSE, MINORITY FAITHS, AND THE POSSIBILITY OF RELIGIOUS INDEPENDENCE AFTER RAWLSIAN LIBERALISM

Abstract

The conversation to which my dissertation belongs is that which preoccupied John Rawls in Political Liberalism, namely: (1) how it is possible that a religiously and morally pluralistic culture like ours lives cooperatively from one generation to the next, and (2) The extent to which religious or moral convictions are appropriate bases for political action. My three-essay dissertation is about aspects of this investigation that affect minority or non-mainstream religious and cultural groups, since legal institutions, and theoretical models of them (such as Rawls’s and Ronald Dworkin’s) are in many ways ill-suited to accommodate their ways of life. In the first essay, I consider Rawlsian obstacles to developing a religiously impartial conception of “substantial burdens” on religious free exercise within First Amendment jurisprudence. I apply this question to federal cases in which Native American tribes sought to prevent government uses of land that would be, they claimed, catastrophic to their cultural survival and all citizens’ safety. I propose a jurisprudential model that places a heavier burden on judges to listen and perhaps translate such views, counting non-mainstream forms of reasoning as legally cognizable and sufficient to create a prima facie constitutional case, where current models would not. In the second essay, because few conceptions of justice require that law be cognizable and justifiable to everyone, I review liberal conceptions of what makes a cultural group or person “irrational” or “unreasonable.” With a focus on public education, and cases like Wisconsin v. Yoder and Mozert v. Hawkins in mind, I argue that approaches to “unreasonableness” from the likes of Rawls, Charles Larmore, Jonathan Quong, and Stephen Macedo are well-intentioned but unduly restrictive, insofar as they tend to, by definitional fiat, exclude citizens who embody widely recognized civic virtues, or who at least pose no threat to a stable democracy. In doing so, I argue that they instantiate the sort of social circumstance that Herbert Marcuse calls one-dimensionality. In the third essay, I consider whether a meaningful and practical model for “group rights,” which would include the right of peoples to preserve their cultures, can be developed within American jurisprudence. This argument is largely inspired by a paper from political scientist Vernon van Dyke, and considers overcoming challenges to this notion wrought by contemporary forms of liberalism and vehement public disagreement over recent, pertinent Supreme Court decisions involving associational rights, like Burwell v. Hobby Lobby and Citizens United v. FEC.