Michael J. Perry (Emory University School of Law) has posted Religious Freedom and Beyond: The Right to Moral Freedom on SSRN. Here is the abstract:
At the Second Vatican Council (1962-65), the celebrated American Jesuit John Courtney Murray played a leading role, as is well known, in persuading the magisterium of the Roman Catholic Church--the bishops and, ultimately, the pope--to embrace the right to religious freedom. Murray was concerned with more than just religious freedom, however; he was also concerned with what we may call moral freedom. In 1960, the year in which the first and, so far, only Catholic was elected to the presidency of the United States, Murray's published *We Hold These Truths: Catholic Reflections on the American Proposition*. Murray wrote, in that now-famous book, that "the moral aspirations of the law are minimal. Laws seek to establish and maintain only that minimum of actualized morality that is necessary for the healthy functioning of the social order." According to Murray, the law should "not look to what is morally desirable, or attempt to remove every moral taint from the atmosphere of society. It [should] enforce[] only what is minimally acceptable, and in this sense socially necessary."
"But why should 'the moral aspirations of the law' be only 'minimal'," we may fairly ask. "Why should 'laws seek to establish and maintain only that minimum of actualized morality that is necessary for the healthy functioning of the social order'? Why should the law 'enforce only what is minimally acceptable, and in this sense socially necessary'?" In this essay I provide an answer, in the course of defending this claim: The case for liberal democracy's affirming the right to moral freedom is analogous to and no less compelling than the case for its affirming, as it does, the right to religious freedom. Liberal democracy should affirm the former right, therefore, as well as the latter; it should affirm moral freedom as well as religious freedom.
