Home > Journals > JCRED > Vol. 31 (2018) > Iss. 2
Abstract
(Excerpt)
Tebbe’s argument proceeds along two separate tracks. First, he rejects the arguments of academic skeptics and others that these conflicts are by nature something that is not amenable to the judicial task. Rather, he argues, conflicts between religious freedom and civil rights can be worked through by courts, using what he calls a “social coherence” approach. This does not, of itself, “pretend to determine unique answers to pressing substantive questions”; but it establishes a way to generate reasoned conclusions that are intrinsically superior to the ad hockery or nihilistic approach that skeptics assume.
Next, Tebbe combines this approach with four substantive legal principles that he argues to be critical to managing tensions between religion and equality guarantees. These principles are explicitly normative; they establish “a substantive vision of how conflicts between traditional believers and egalitarians ought to be resolved.” These principles are: avoiding harm to others; concern for fairness to others; refinement of ideas of freedom of association; and the implementation a policy of non-endorsement of religion by government.
These commitments – both methodological and substantive – set forth a bold statement in an area in which tensions run high and muddled thinking is endemic. Although (necessarily) imperfect, they promise to advance what has otherwise been a largely self-referential and unfocused debate. Tebbe’s methodological prescription and his first two substantive principles, in particular, challenge deep and unspoken assumptions that have entered this area of law; and they promise to fundamentally alter the way that these conflicts are approached. It is therefore upon those innovations that I will focus in these remarks.