Robert K. VischerSeptember 12, 2011 - 11:37am1 comments
The Agnostic Age
Law, Religion, and the Constitution
Oxford University Press, $65, 352 pp.
One major premise of liberalism is that the state will not weigh in on the truth of religious claims. This premise has led to a view of the legal system as a distant and dispassionate arbiter of disputes that involve religion, paying little attention to the content of religious beliefs as they relate to a particular law, focusing instead on the weight of the relevant state interests. The courts do not care, for example, why Native Americans were using peyote as part of a religious ceremony. They ask instead whether the state had a valid reason for depriving the claimants of their unemployment benefits because of their illicit drug use. For the state to probe too far into the religious belief behind the ritual drug use would threaten the neutrality on which the maintenance of a peaceful pluralism depends.
In his insightful and bracing book, Paul Horwitz seeks to upset this arrangement, though his analysis underscores the difficulty of articulating a realistic alternative to it. Calling for a “constitutional agnosticism,” he urges judges, public officials, and citizens to confront openly the truth of religious claims. The failure to do so, he argues, has contributed to the gradual erosion of religious liberty by discounting the possibility of religious truth and substituting a conception of religious claims as expressions of “feeling” that resist rational assessment. Horwitz concludes that this hands-off approach to religious claims can no longer withstand the...