Abstract

The special legal status of religion and religious freedom in liberal democracies has become an issue of controversy among legal academics and lawyers. There is a growing argument that religion is not special and that the law should be amended to reflect that fact. This Article argues that religion is special. It is special because of the historical, practical, and philosophical realities of liberal democracies. Religious freedom is a foundational principle that was instrumental in creating the modern liberal democratic state. To remove religion from its current legal station would be a revolution that would put liberal democracy in a precarious position. This is in part because the right to believe and practice one’s religion has been described as a “prototypical” right. It blazed the trail for other commonly recognized rights such as freedom of association, assembly, speech, and fair trial. There is a broad need for a deeper appreciation of religion; in particular, it is vital to understand how its protection makes democracy work by keeping in check the tendency of the state to demand ultimate allegiance at the expense of individual conscience.

Keywords

legal status of religion, religious freedom, liberal democracies

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