From Toleration to Accommodation: Refocusing the Relationship of Religion and Law in the United States.
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2017-12
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The problem this dissertation seeks to solve is the lack of a principled decision-making process for courts to consider claims of religious free exercise. The problem arose with the initial First Amendment claim: polygamy in 1879. Since then, Courts have engaged in jurisprudential gymnastics to deal with Reynolds v. United States. I reject both the Reynolds division of religious belief from practice, and its consideration of religious practices as exceptions to neutral laws.
To refocus the discussion, I create a definition of religion that begins with the metaphysical implications of death. There is a fact of the matter about what happens at death but it cannot be accessed to determine which religious claim is correct. Therefore, the government must adopt a stance of ontological agnosticism. Governments are composed of individuals situated in specific cultural and historical contexts. Therefore, neutrality is as impossible as objectivity, so they must employ epistemic perspectivism, adopting the point of view of the impacted religious individual. Toleration relates to the accommodation clause: all religions are permitted but none may be favored. For religious expression, however, it would mean that the state puts up with the religious identity of its citizens, and is inappropriate. I situate religious personal identity as similar to race or sexual orientation. Shifting the attitude to accommodation creates new legal perspectives.
I look to José Ortega y Gasset for a response to relativism: we get closer to truth by accumulating perspectives. The concern that all religious acts must then be permitted is addressed through Ibn Khaldun’s concept of social/cultural identity that I use to locate the contours of community toleration and address changes over time. The potential hazard of using social/cultural identity as an outer boundary of toleration suggests two constraints: first, a
Supreme Court ruling that would not be supported or enforceable, and second, any prohibition loses its justification if relevant social mores change.
To test my framework, I apply it to polygamy in Reynolds and in 2017. Morocco’s regulatory scheme suggests how participants could be better protected. Accommodation of Islamic veils in the U.S. demonstrates the success of my philosophical refocus.
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