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The Tragedy of Religious Freedom

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The title of this blog entry is the title of a 2015 book by Marc O. DeGirolami, which takes an Isaiah Berlin-inspired approach to the issues of interpretation raised by the religion clauses of the first amendment to the U.S. Constitution.

Berlin famously critiqued the hedgehog-like view that, in his words, "there must exist a path which leads clear thinkers to the correct answers to these questions." The tragedy of life is that there is no such path, that good clashes not only with evil but with itself; good clashes with good, and some goods will of necessity be lost. Any effort to avoid this tragedy through a Grand Scheme produces a far greater tragedy, planners who try to force humanity to fit their scheme, at any cost necessary.

DeGirolami, in much the same spirit, criticizes the "monists" who have a grand scheme in the world of first amendment litigation or, more so, scholarship.

Among the first-amendment hedgehogs whom he critiques, the writing duo of Christopher Eisgruber and Lawrence Sager, whom he calls E&S, is prominent. Eisgruber and Sager wrote the treatise RELIGIOUS FREEDOM AND THE CONSTITUTION.

The Big Idea that E&S present, making monists of themselves? They contend that religion is a concern in the Constitution because it can "inspire inequality in stature or reward," as by the privileging of one religion and the disparagement of another, and that the point of protecting religious liberty is to short-circuit such inspiration, advancing equality.

Further, E&S urge a reasonable-person standard for when some govt interaction with religion could be considered a disparagement.

There are lots of problems with this as a Big Picture, and DeGirolami does a good job of presenting some of them.  

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