The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct

Eisgruber, Christopher L.; Sager, Lawrence G.

doi:10.2307/1600120

Cited by 84 publications

(6 citation statements)

References 0 publications

Supporting

Mentioning

Contrasting

Order By: Relevance

“…6 For an early criticism of RFRA, see Eisgruber & Sauer, 1994. Professor Marci Hamilton offered a more substantive rejection of RFRA (Hamilton, 2005).…”

Section: Endnotesmentioning

confidence: 99%

Entheogens: Psychedelic religion in the United States, part two

Stoddard

2023

Religion Compass

View full text Add to dashboard Cite

Scholars across the academic spectrum have written about the renewed interest in psychedelics that is commonly called the Psychedelic Renaissance (PR). Psychedelic religion is a major component of the PR, as psychedelic churches are growing exponentially and as people who consume and who research psychedelics routinely contend that these substances induce or occasion religious, spiritual, or mystical experiences. Scholars have noticed the growing association of psychoactive substances and religiosity, and they have addressed this association from a variety of academic fields, methods, and methodologies. Part one of this article (“Entheogens: Psychedelic religion in the United States, Part One”) explored the historiography of associations of psychoactive substances and religiosity in the United States from the 1800s to the 1980s. Part two of this article continues the historiographical analysis of this literature beginning in the 1980s and ends with recent scholarship. Collectively, this analysis highlights the evolving political, legal, and sociocultural capital associated with psychoactive substances and religion.

show abstract

“…6 For an early criticism of RFRA, see Eisgruber & Sauer, 1994. Professor Marci Hamilton offered a more substantive rejection of RFRA (Hamilton, 2005).…”

Section: Endnotesmentioning

confidence: 99%

Entheogens: Psychedelic religion in the United States, part two

Stoddard

2023

Religion Compass

View full text Add to dashboard Cite

show abstract

“…20 In support of this interpretation, jurists Christopher Eisgruber and Lawrence Sager argue that Scalia's use of Justice Morrison Waite's determination that "laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices" 21 demonstrates the Court's openness to public religious expression -so long as the rights of all individuals to equal freedom and liberty are rigorously protected. 22 I seek to forge a middle path between these two competing interpretations of Smith. Portraying Smith as either the vehicle for jurisprudential and legislative change or as the logical outcome of more than a century of struggles over what counts as religious expression belies the depth of Scalia's legal and social anxieties and diminishes the impact that Smith's encounter with the Court had on his relationship to both his faith and the law.…”

Section: A New Legal Realitymentioning

confidence: 99%

Theorizing Employment Division v. Smith: The Affective Politics of the Legal Regulation of Religion

Heard

2016

Law, Culture & the Humanities

View full text Add to dashboard Cite

This commentary interrogates, first, Justice Antonin Scalia’s assertion in Employment Division v. Smith that the law must uphold the belief-action distinction in order to preserve democratic norms and, second, the affect that this distinction had on Alfred Smith’s relationship with his faith. I argue that as Smith responded to the law’s repeated requests for justification as to why his religious convictions ought to exempt him from the criminal regulation of peyote, he experienced a profound sense of legal, political, and spiritual disempowerment – a disempowerment compounded by the erasure of the complexities of his faith in both the decision and aftermath of Smith. By way of making this argument, I bring Scalia, Smith, and Smith into sustained conversation with an unlikely interlocutor: Jürgen Habermas. As one of the leading legal and political theorists of religion in the late modern moment, Habermas articulates a vision of democratic life that at once venerates public religious expression and insulates law- and policy-making institutions from faith-based influence. Habermas’s vision is often characterized by contemporary political theorists and legal academics as the ideal to which all religiously plural democracies should aspire, but when his argument is considered alongside the experiences of Smith before the Court, a powerful disjuncture between theory and practice emerges. For although Habermas encourages religious individuals to adopt an epistemic stance of public reason and to engage in cooperative acts of translation in order to settle collaboratively the appropriate limits of religion as well as the law, I argue that, when applied to Smith, these methods of discursive engagement work to not only underscore the absolute primacy of the law over religion, but also to undercut Smith’s own understanding of his faith. I ultimately suggest that this mode of inquiry – that is to say, infusing theory with nuances gleamed from the everyday legal lives of ordinary individuals – generates new pathways through which to ameliorate latent social and political harms.

show abstract

“…47 They involve what Charles Taylor called a judgment of 'strong evaluation' about the central importance and value of certain belief, practices and purposes. 48 This strong evaluation is primarily made by the individuals or groups concerned (Eisgruber and Sager explicitly endorse a subjective definition of religion for free exercise purposes 49 ) but is also checked against wider moral standards (they reject the idea of respect for individual conscience as such, regardless of the content of its injunctions 50 ). One virtue of their account of the normative grounds of religious freedom is that it sidesteps the sterile debate about whether religious commitments are to be seen as products of 'chance' or 'choice'.…”

Section: A Free Exercise and Accommodationmentioning

confidence: 99%

Equal liberty, non-establishment and religious freedom 1

Laborde¹

2014

Democracy, Law and Religious Pluralism in Europe

View full text Add to dashboard Cite

in the early 1960s, a member of the Seventh-Day Adventist Church, Adell Sherbert, was denied unemployment compensation on the grounds that no 'good cause' justified her unwillingness to comply with her employer's demand that she, like other employees, accept Saturday work. The US Supreme Court reversed the lower court's decision, and found that denying Sherbert's compensation claim violated her rights to religious freedom. Sherbert v. Verner (1963) became a landmark case in the constitutionalisation of religious freedom. Consider, however, two different ways in which Sherbert's religious freedom claim could be justified. On the one hand, one could say (as the Court in fact said) that to condition Sherbert's access to benefit on her willingness to violate a cardinal principle of her faith would be unduly to penalize and burden her rights of religious freedom. On this view, Sherbert has a pro tanto claim to practice her religion freely (absent a compelling state interest). On the other hand, one could say that denying compensation would entail unjustly discriminating against Sherbert who, unlike similarly situated workers, faces an unfair dilemma: either complying with the job's requirements or obeying the demands of her faith (and losing her claim to compensation). On this view, Sherbert has a comparative claim to be treated on fair, equal terms with others. This second justification draws on what I propose to call an egalitarian

show abstract

The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct

Cited by 84 publications

References 0 publications

Entheogens: Psychedelic religion in the United States, part two

Entheogens: Psychedelic religion in the United States, part two

Theorizing Employment Division v. Smith: The Affective Politics of the Legal Regulation of Religion

Equal liberty, non-establishment and religious freedom 1

Contact Info

Product

Resources

About