Gila Stopler (College of Law and Business - Ramat Gan Law School) has posted How Could Religious Liberty Be a Human Right: A Reply to Andrew Koppelman (Forthcoming in 16(3) INT’L J. CONST. L.) on SSRN. Here is the abstract:
In his article "How could religious liberty be a human right?" Andrew Koppelman argues that there is a unique and distinct human right to religious liberty which cannot be reduced to or derived from other existing human rights such as the rights to conscience, equality, or integrity. According to Koppelman, religion is a hypergood and an object of strong evaluation, and since it combines multiple goods, some of which are hard to pin down, religion should serve as a proxy for these goods, and the right to religious liberty should protect all that is religion. In my response I critique Koppelman's proxy approach and claim that its theoretical weaknesses and practical deficiencies are more extensive than Koppelman is willing to concede. Religious freedom, especially of majorities, is already unfairly privileged over other rights such as conscience and equality. Defining it as broadly as Koppelman suggests and deliberately disconnecting it from “secular” rights such as conscience, association, and equality only further exacerbates this problem. Making religion sui generis in the way Koppelman suggests further strengthens the already too expansive protection of majority religions, does not necessarily enhance the protection of special features of minority religions that Koppelman may wish to protect, and harms non-religious minorities such as women and homosexuals.