Legal Commentary

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.