Alex Deagon (Queensland University of Technology - Faculty of Law) has posted Creating Peaceful Coexistence Through Virtue: A Theological Approach to Institutional Religious Freedom, Equality and the First Amendment on SSRN. Here is the abstract:
In the current era of fraught tension between religious freedom and equality, scholars from across the spectrum of perspectives have called for generosity, empathy and compromise from both sides. In this paper I propose to give substantive content and criteria to such exhortations through adopting a theological perspective which aims to create peaceful coexistence through the cultivation and application of the Christian virtues such as love, grace, forgiveness, humility and patience. Together these virtues recognise the inherent worth of all humans as created in the image of God, and a willingness to permit genuine difference, even profound moral disagreement, loving neighbour as self by aiming to persuade to what is true and good, while also accepting freedom to reject and disagree with the most deeply held convictions – whatever they may be. In Part I of the paper, I outline this theological framework before addressing a series of objections regarding the compatibility with and application of this framework to a liberal, pluralist democracy.
In Part II, I turn to the First Amendment specifically, focusing on the establishment and free exercise clauses as they apply to religious communities, including institutions and vendors. Using the theological virtues as a standard, I critique First Amendment jurisprudence to determine the extent to which it creates peaceful coexistence, and offer some thoughts on how tensions may be reconciled. In particular, the establishment clause can be interpreted to prevent government interference with religious communities, but ambiguities in interpretation based on secularist ‘separation’ approaches can restrict the ability of religious communities to participate in public life, which undermines peaceful coexistence. Similarly, the Smith interpretation of the free exercise clause undermined peaceful coexistence by preventing only overt and explicit discrimination against religious exercise. However, more recent decisions have started to recognise that generally applicable laws such as anti-discrimination laws can undermine peaceful coexistence by placing substantial burdens on religion, which damages the good of religious entities. I suggest narrow and clear religious anti-discrimination exemptions for religious vendors as best upholding the dignity of both parties and promoting a society where people of deep moral difference can peacefully coexist by recognising their respective right to meaningfully participate in and contribute to public life.
Finally, the ministerial exception in principle upholds peaceful coexistence because it allows a religious community to select and regulate staff in accordance with a religious ethos, upholding the dignity of the members of that organisation and enabling them to distinctively contribute to public good. However, the exception is arguably too broad as it stands because it allows discrimination on the basis of attributes unrelated to religion. This undermines the theological virtues of trust, kindness and love of neighbour by potentially allowing malicious discrimination unrelated to upholding an ethos. A more limited exception on the basis of [r]eligion or religion-related conduct would better uphold peaceful coexistence in more practical terms.
A minor glitch in the abstracted has been corrected at the point at which the "[r]" occurs.
