Article by: Steven D. Smith

41 PEPP. L. REV. 903 (2014)

In November 2011, Stanford law professor (and former federal judge) Michael McConnell debated Harvard law professor Noah Feldman at Georgetown University on the topic “What’s So Special about Religious Freedom?” McConnell reminded the audience that the First Amendment singles out religion for special protection, and he argued that this treatment continues to be appropriate today. For his part, Feldman conceded the first half of McConnell’s argument: the First Amendment provides, and framers like Madison supposed, that religious freedom is deserving of special protection. But that supposition is no longer justified, Feldman argued. The Constitution’s special treatment of religion was based on historical conditions and theological commitments that happened to prevail at the founding. But conditions are different now, and in a modern liberal state it is unacceptable for government to act on theological rationales. Feldman’s position did not appear to be driven by any animosity toward religion. Nor is any such animosity evident in his other work. Religious belief and expression should still be protected under other constitutional provisions, he insisted, such as freedom of speech. But there is no longer any warrant for singling out religious freedom as a special constitutional commitment.

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