The dissent in Telescope Media Group v. Lucero offers a glimpse at the progressive vision for the future of the First Amendment.
This next Liberty Law Talk is with Marc DeGirolami on his new book, The Tragedy of Religious Freedom (Harvard University Press, 2013). Central to DeGirolami’s argument is the failure of monistic accounts that seek to resolve religious liberty disputes by cosmic appeals to neutrality, equality, or other universal rationales. These fail because they do not consider the range of conflicts, practices, traditions, and meanings that are at stake in these highly controverted cases. Similarly, DeGirolami takes issue with those who deny even the possibility of the concept of religious freedom. Instead, he looks in a Burkean manner to how the practices and traditions of religious liberty have inherent meaning and worth to their participants. The existence of various forms of outward religious expression testifies to their goodness in virtue of having become living projects of individuals and citizens. It follows that disputes between litigants advancing secular arguments against religious expression should be weighed and judged not by “abstracted, absolute values” but by social history and a pluralistic perspective. In doing so, courts would recognize that these are “irreducible conflicts” that should be judged with balance and a common law methodology that would move slowly and refrain from issuing sweeping decisions one way or the other.