This short piece of mine, at “Public Discourse,” has some thoughts on the matter. A bit:
The “freedom of conscience” is, as Prof. Steven Smith has observed, “central to the modern discourse of religious freedom” and, indeed, “to the modern self-understanding generally.” According to Prof. Noah Feldman, the Founding-era commitment to conscience was the “principled reason” for the proposal and ratification of the First Amendment’s free-exercise and no-establishment clauses. . . .
How, though, does this relationship work? That is, how, precisely, do the anti-establishment norm and the “separation of church and state” vindicate the freedom of conscience? . . .
The “separation of church and state,” it turns out, is a powerful structural principle; it is a principle of pluralism, of multiple and overlapping authorities, of competing loyalties and demands. It is a rule that limits the state (not a program of marginalizing or privatizing religion) and thereby clears out and protects a social space, within which persons are formed and educated, and without which the liberty of conscience is vulnerable. The no-establishment rule, then, protects the liberty of conscience primarily by respecting and protecting the independence of non-state authority.
Posted by Rick Garnett on April 5, 2009 at 03:31 PM