Kamran Bajwa (University of Chicago Law School) & Samuel E. Miller (University of Iowa - College of Law; University of Chicago) have posted Liberalism Versus Liberalism: An Analysis of Muslim-American Amicus Curiae Arguments Concerning Complicity-Based Conscience Claims (Journal of Law and Religion, Vol. 38, No. 2, 2023 (Forthcoming)) on SSRN. Here is the abstract:
Nejaime and Siegel (2015) identified complicity-based conscience (“CBC”) claims as a sub-category of religious liberty claims in which objections to generally applicable laws result in harms to third parties. Here, we observe that Muslim-Americans have filed or joined amicus curiae briefs in support of litigants on both sides of the recent CBC disputes of Masterpiece Cakeshop v. Colorado (2018), Bostock v. Clayton County (2020), and Fulton v. City of Philadelphia (2021).
We show that the opposing arguments advanced by Muslim-Americans in these amicus curiae briefs presuppose two different conceptions of liberalism: liberalism as the pursuit of broad religious, cultural, and value pluralism (modus vivendi), or liberalism as the pursuit of cohesion, assimilation, and fraternité among diverse constituencies (vivre ensemble). On the basis of a modus vivendi vision of liberalism, Muslim-Americans argue that Islam and other minority religions entail specific beliefs, doctrines, and moral injunctions regarding, inter alia, rules of personal conduct in society that deserve distinctive legal protections. Under a conception of liberalism as vivre ensemble, Muslim-Americans prioritize the uniform enforcement of civil rights laws over religious-based objections thereto and, in doing so, seek an “overlapping consensus” between their beliefs and prevailing conceptions of expansive civil liberties.
Interesting and recommended.
