 This program is brought to you by Emory University. Ladies and gentlemen, if I could get your attention we would like to go ahead and begin the next session. This session is focused on the future of religious liberty. As each of our sessions over these two days, you will see there is overlap, there is dissonance, there is synthesis, there is contradiction as we move from topic to topic. But we've done that intentionally. Our session today is chaired by my devoted colleague and friend, Michael Broide. Michael is one of the core faculty members in the Law and Religion program, a graduate of NYU Law School, an ordained rabbi, a member of the Bette Den. Michael Broide has taught virtually every course in our curriculum. His focus is family law. He's done bankruptcy and secured credit. He teaches Jewish law. I am so honored to be his colleague and just last year was able to move into the office next door to Michael in the Center for the Study of Law and Religion. And so it's been my pleasure to work with him for almost a decade and now almost on a daily basis. I turn over the session to you, Michael. Thank you for being here. One Religion program does a number of different things as Professor Alexander said. We talk about, we think about, and we speak about, and we even write about the influence religion has had on law. Sometimes, and more frequently than you might suspect, we talk about the influence religious traditions have had on each other. The Jewish, Christian, and Islamic traditions frequently meet in the halls of the Law and Religion program to discuss various matters of religious law. Religious liberty is another central theme of a Law and Religion program and it really focuses on the influence law has on the practice of religion. Today we are privileged, truly privileged to have three foremost scholars who will talk to us about the future of religious liberty, painting a global picture allowing us to see the future in light of the past. Our first speaker is Professor Laycock, who's the Yale Camisar Professor at the University of Michigan. When I was in law school, he had already published many articles and it's been many years since then and the list of articles, books, significant contributions and ongoing involvement in the contours of religious liberty in the United States make him the spectacular first speaker to talk to us on this topic. My title refers to myself self-referentially as a, my mother's very sick, so I've got to turn it on but I'll turn it off. It's on vibrate. First of myself is a conscripted prophet and of course when I wrote that I had no idea that Marie Cavani was going to end on Jonah as a reluctant prophet. I know perfectly well I'm not a prophet and that's the point but I'm a literal minded guy and John Whitty asked me to predict the next 25 years and I said okay, can't do it but I'll give it a shot. So what will the world of religious liberty look like in 2032? Damned if I know. What I can do is examine the past, look at current trends, look at what caused past trends to change and make some guesses about the future but I can't see around the next curve or even tell you when the next curve is going to arrive. One thing I do know, religious changes drive changes in the law of religious liberty and we can see that throughout American history. Changes in the beliefs and behavior and the religious demography of the American people have caused changes in the alignment of religious conflict and those changes have driven much of the law of religious liberty and thus the first great awakening in the beginning of the 1740s led to disestablishment in the states to guarantees of free exercise and disestablishment in the federal constitution. The large Catholic immigration in the 19th century led to intense political conflict over religion in the public schools and over demands for government funding to private schools and the modern legal issues of school prayer and government's verbal support for religion more generally and funding for private schools and of religiously based social services are all directly descended from those 19th century Protestant Catholic conflicts. The assimilation of Catholics and Jews into the mainstream and into the governing elite and the increased acceptance of religious pluralism more generally led to the school prayer decisions in 1962 and 1963 and to the rule that is generally observed but subject to exceptions the government should remain neutral on questions of religion. A lot of people in this room who know a lot more about religion than I do but I'll stick my neck out a little further I'll say the fourth great awakening began in the 1970s and continues today it led evangelical Christians to build a set of private schools and that led them to switch sides on questions of funding private schools and that change of position contributed powerfully to a reframing of the constitutional issues surrounding aid to religious schools. It was no longer just a Catholic issue it had the support of a broad coalition that included Catholics, evangelicals, free marketeers, black parents frustrated with inner city schools and that reframing of the issue helped lead the swing votes on the Supreme Court to change their position from no aid and lemon to vouchers in Zellman. In this fourth great awakening, evangelical religion grew dramatically in activism, visibility, and influence probably grew somewhat in numbers as well but the most important thing about this great awakening was that the even was the evangelical decision to enter into politics and to form litigating organizations to protect religious liberty. That of course was a reaction to secularization it provoked a counter reaction from the secular side and the conflict between those two movements has led to a much higher rate of religious liberty litigation and the courts generally and the Supreme Court in particular. Even Jocko activism was necessary but not sufficient to the enactment of the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act, the Religious Liberty and Charitable Donations Act, the American Indian Religious Freedom Act, 13 state religious freedom acts and that movement has powerfully resisted the Supreme Court's view that government should be neutral in matters of religion. So there's some very broad based ways in which over time religion has changed the law of religious liberty. We also know that a single group with problems and with determination to face them can make a large difference. That's most vividly illustrated by the Jehovah's Witness litigation from the late 1930s to the early 1950s when they had some two dozen cases in the Supreme Court and won nearly all of them. The second thing we can say about this history that helps us peek a bit into the future is to note the remarkable persistence of these issues. The details change, the alignment of factions changes, whose winning changes but the issues remain. Americans have been fighting over religion in the public schools since the 1820s. We've been fighting over whether to fund private religious schools also since the 1820s. The intensity of those fights has waxed and waned and at times, especially in times of major war, the issues have faded away almost entirely when the country was focused on other things. But the issues have always returned and even the arguments haven't changed that much. One side says the public schools are neutral and acceptable to all and somewhat inconsistently that the public schools are essential to socializing children and preserving American values. The government should not support the teaching of religion. The religious schools are separatist and divisive. The other side says the public schools are not at all neutral and they are unacceptable to important religious minorities, that they instill a politically dominant view about religion. The private schools teach the whole curriculum and not just religion, that families should not be forced to choose between their faith and their children's right to a free education. These issues for 180 years now and I feel fairly confident in saying we will still be fighting over them in 2032. The battles over free exercise have been more intermittent but they have continued for even longer. Here the central issue is the one that Kent Greenewalt devoted much attention to. Whether and to what extent religiously motivated behaviors should sometimes be exempted from government regulation. That issue in America goes back at least to 1669 when the Carolina colony exempted conscientious objectors from swearing oaths. There were major and long running political battles over exemption for military service in the colonial period and in the American Revolution. There has been constitutional litigation over claims to exemption at least since 1813 when a New York prosecutor summoned a priest to testify to what he heard in the confessional and that 1813 case was argued and publicized as a test case which shows a movement, shows awareness that it's a recurring issue in which an organized group had a stake and I expect we'll still be arguing over these issues in 2032 as well. The basic legal issues are persistent. Changes in religious behavior and religious belief field changes in how those issues are treated so can we foresee any changes in religious belief and behavior? So now I'll really stick my neck out. I actually make a few predictions. The fourth grade awakening will come to an end. It will gradually fade away. It will likely leave important changes behind it. New universities, new megachurches, new statutes on religious liberty, new litigating organizations, but the religious intensity of the last generation will not continue. I base that prediction on very little more than the fact that the first grade awakenings all came to an end. They seem to have a lifespan and this one is getting a little long in the tooth. I'm an outside and theologically unsophisticated observer, but to me the movement seems to be diffusing. The controversy over evangelical environmentalists is one example. The lack of a viable socially conservative candidate in the Republican primary is another example suggesting that the leadership can't deliver the votes of the rank and file. The theology of worldly riches emerging in some quarters seems to me to be another example. So the fourth grade awakening will end unless of course this one is different. This one, that's what they say about stock market bubbles. I doubt that it's any more true here, but maybe. This grade awakening arose in reaction to very specific political and moral threats and perhaps those threats can serve as a focal point that sustains the movement. We forget this, but it was actually the threat to take away the tax exemption of the segregation academies that first aroused evangelicals to aggressive political action. But other more respectable issues soon replaced that one. The most obvious and most important is abortion. Now joined by same-sex marriage. There's also evolution, but evolution was around for the third grade awakening and didn't sustain it. There are issues of sexual morality more generally, secularism in the public schools, but those seem to me to be more diffuse issues. There are the end of life issues, but on those the right to life movement will simply lose. Americans in overwhelming numbers fear being tortured by the medical establishment in their last days on earth. We have polling data on that. Every demographic group, young, old, people close to death, people far from death, people most fearful of the medical establishment or the doctors. I'll come back to same-sex marriage, but I think it's abortion or nothing as a galvanizing opponent for evangelical activism. And my guess is that the abortion issue itself will look quite different by 2032. If Roe v. Wade is overruled or willed into insignificance, then the issue will be turned to legislatures. The current Republican coalition will be destroyed. In most states, abortion will remain generally legal, but subject to more restrictions than it has been. Conversely, if new appointments to the Supreme Court reaffirm Roe by a wide margin and put its overruling out of reach, I don't think that's very likely, but that could happen. If that happens, the right to life movement will be much harder to sustain. The intensity of conflict over abortion for the last 30 years has partly been a function of the profound moral stakes on both sides of the issue, partly a function of the sense that dramatic change was just within reach, a potential or a threat, depending on which side you're on, that motivated both sides to very intense effort. Technological change could transform the abortion issue. If medical advances make it possible to sustain early-term fetuses outside the womb, abortion will no longer be necessary to preserve women's control of their bodies, but taxpayers will be quite unwilling to pay the cost of supporting all those fetuses, and both parties' coalitions will be under enormous pressures. If pharmaceutical advances move abortion into the home or into the offices of ordinary gynecologist and internist, effective regulation will become impossible. Of course, it's easy to over-predict dramatic changes, as well as it is to totally fail to see them coming. It may be that abortion is one of those persistent, galvanizing issues, that in 2032 abortions will still be performed in clinics surrounded by protesters. I would not be astonished at that outcome, but I would bet against it. Second prediction is a corollary. The first, religious conflict between Americans will subside. What it means for the fourth grade awakening to come to an end is that religious intensity will subside, and religious intensity is the principal line of religious conflict in the country. The dominant religion in this country is low-intensity theism. The middle of the theological spectrum is filled by nominal believers and by serious believers without much fervor and with only the vaguest idea of the theology of their denomination. This vast middle tends to be suspicious of the intensity at each end, hostile and fearful, both of the non-believers on one end and of the intense and outspoken believers on the other. And of course, the sharpest religious conflict is between the two ends of the spectrum, between the intense secularist and the intense believers. When the intensity is reduced on one end, the resulting religious conflict will also be reduced. I don't say eliminated, just reduced. The center's second 25 years should be quieter than its first 25 years. And I'm talking only about the United States. The international religious conflicts are much more difficult, and I know much less about them. I suspect that those two will eventually subside, but I wouldn't begin to predict it will happen within 25 years. There don't have to be a rocket scientist to predict this one. Gay rights will present serious religious liberty issues. Even though religious conflicts should ameliorate in general on some specific issues, it is likely to intensify. The gay rights movement will continue to make progress. It has momentum and it has demography. Young people are much more tolerant of same-sex relationships than older people. Young people are also less religious than older people. And always before, that has been an age effect, not a true difference in cohorts of the population. Young people become more religious as they get older. And it's possible that today's young people will also become less tolerant of gays as they get older, but my guess is it's not going to work that way. I think this one is a genuine difference in cohorts. The older generation grew up at a time when hostility to same-sex relationships was endemic. People absorbed those attitudes and sometimes became hardened in them before they were ever exposed to the gay rights movement or to the argument that sexual orientation is generally immutable. Today's young people had a very different socialization. This will present issues... Further progress to the gay rights movement will present issues of exemption that we've already seen. There's no very good reason for there to be conflict between religious liberty and gay rights, but there is. My view is the only consistent civil libertarian position is to support both religious liberty and gay rights. Both movements are fundamentally based on the view that some features of human identity and commitment are so personal that the state should not interfere without extraordinary reason. I've supported both gay rights and religious liberty throughout my career. I think what we need are strong gay rights laws with strong religious exemptions, but almost no political actor sees it that way. The leaders of the gay rights movement and the leaders of the evangelical religious movement both want a total win. They don't want to have to litigate over exceptions. They don't want to have to risk an occasional loss. It was the gay rights movement that rallied the broader civil rights movement to kill the proposed religious liberty protection act. That was the case where the evangelicals were willing to put much more in the bargaining table, surrender much more than the gay rights side was. The evangelicals still lost. The gay rights said, we want an absolute exception or we'll kill the bill and they killed the bill. So there will be gay rights laws with absurdly narrow religious exemptions, perhaps eventually with no religious exemptions at all. And there will be conservative believers who impose an act on one of those laws who resist compliance who seek exemptions. As the gay rights movement continues to make progress, we are likely to see more and more serious religious liberty issues arising out of its success. And then there are the marriage issues. The problem with marriage is that this is the one major institution of society in which we make absolutely no pretense of separation of church and state. We don't even have institutional separation, which hasn't been controversial for centuries, but with respect to marriage, we totally ignore even institutional separation. Marriage is both a religious institution and a legal institution, but we do not separate the two. Marriage is jointly administered by church and state. The state has delegated a clergy the power to solemnize legal marriages. Most Protestant churches have de facto delegated to the state the power to dissolve religious marriages. Catholics and Orthodox Jews persist in refusing to give religious effect to secular divorce. That shows it is possible to separate the two statuses, legal marital status from religious marital status, if we have the will. But most Americans never distinguish religious marriage from legal marriage. The two institutions are entirely combined in our thought. And that means that the issues over same-sex marriage are more difficult than they ought to be. If we properly distinguish the religious and legal relationships, it would be perfectly clear that the state can authorize legal marriages between persons of the same sex, but it can say nothing about religious marriages. Clergy do not have to perform same-sex marriages. Religious organizations do not have to give religious recognition to same-sex marriages. And similarly, where the disagreement is reversed, states do not have to recognize religious marriages between same-sex partners, but neither can they prohibit or penalize religious marriages that lack legal effect. All this should be clear, but none of it appears to be clear. Already there have been conflicts in litigation in both directions. The Beckett Fund is publishing a fine volume of essays on further conflicts to be anticipated. The nature of marriage, the relationship between religious and legal marriage, will be important issues for the center's second 25 years, provoked by increasing acceptance of same-sex marriage. And the only solution will be to begin separating the two statuses, recognizing the rights of both church and state to make their own rules. Muslim population will grow unless we shut down immigration persistently and effectively, which is barely possible with respect to Muslims, but I think not unlikely. I think not likely. Muslims have been worried about active persecution, and so they haven't been aggressive about free exercise litigation, but some such cases have already been filed, and I think we can foresee more. Litigation over veils and head coverings in employment, in airports, on driver's license and identification cards, perhaps in public schools. Litigation over regulation of Islamic schools, and if voucher programs get off the ground, which I don't think is going to happen, but if they do, then over more intense regulation of Islamic schools that take government money. Conceivably, litigation over sacrifice at Idolata. There's a pending Santa Maria sacrifice case in the trial court in the Dallas suburb right now. Two sides of that issue haven't gone away either. I predicted voucher programs will not grow and that the fight will be in the states. The Supreme Court has largely returned the question of vouchers to the states, but no general program has been enacted. All the existing programs are tied to failing schools or to particular cities known to have large numbers of failing schools. They're also the charter school programs, which differ in a variety of ways, but most importantly I think they don't create an entitlement and created one school at a time. There is political resistance to vouchers and where the programs are enacted, there is litigation under state constitutions. I think that this will probably not change. I said there's a large coalition in support of vouchers, but there seems to be an even larger coalition on the other side, the public school lobby, the teachers unions, the opponents of taxes and government spending, suburban parents who are happy with their schools and fearful that choice programs will bring in children who are difficult to educate and might disrupt the status quo. Republican support for vouchers is half-hearted because they support vouchers but oppose the means of paying for vouchers. And if the fourth grade awakening fades away, as I predicted, the evangelical component of the pro voucher movement will become less intense. The number of evangelical schools will likely decline. Voucher programs will raise many difficult issues if they are enacted. How intrusively can the state regulate once it is paying the bills? Could some schools be excluded altogether because their curriculum is incomplete? Think of schools that teach only religion and very little of the secular curriculum. Or can they be excluded because they teach intolerance or anti-Americanism or other ideologies that undermine constitutional commitments? If we took those issues seriously, courts and legislators would have to think about a question they have studiously ignored. What are the few things the state has a compelling interest in insisting that every child learn? Those issues will arise sporadically with respect to the small programs in place but they will not arise in a sustained and focused way that would follow if a popular state enacted a generally applicable voucher program. I think we're likely to continue to duck those questions. Let me say just a little bit about the court. Who will be deciding these cases? Let's start with the easy part. In 1932, Chief Justice Roberts will be 77. Justice Alito will be 82. Justice Thomas will be 84. Quite possibly they'll still be sitting in the court's three center seats. And if not, they will have been there for most of the center's second 25 years. Who will be serving with them and with what predilections? That depends on politics and politics is even harder. We may get a long run of democratic dominance arising out of Iraq, but just as easily Iraq will be a disaster in the administration from 2008 to 2012 and Republicans will blame Democrats. Democrats lost Iraq. And if we'd been left in power, we were on the brink of victory. Things would have been different. Very long-term punishment of political parties is a rare thing in American politics. You know, if a party is blamed for invading a state, destroying its physical capital, destroying its social system, killing and maiming all its young men, it can be punished for a century. That's what happened to Republicans in the South after the Civil War. But short of that, politics is about what have you done for me lately and what will you do for me next. And I don't think it's very likely that either party is going to have a huge dominance over the next 25 years. With the longevity expected of Roberts, Thomas, and Alito, Democrats have to fill five of the remaining six seats to have a majority. Could happen. I don't think it's very likely. The Supreme Court will remain conservative for the center's second 25 years. Well, suppose we were sure of that. We knew who would control the White House and the Senate. What would that tell us about the Supreme Court? Well, we have a better idea, but it would still be very far from a sure thing. Two political parties have competing visions of the Constitution and of religious liberty in particular. Those alignments have lasted for 25 years now, which is a long time. They are subject to change. Both party coalitions are fragile. Both party coalitions have quite inconsistent elements among them. These coalitions could break up, could realign, groups could hive off. We may be seeing some of that in the current Republican primaries. Both sides have their own theory of why they're going to dominate the future. Both sides are probably wrong. The division on the establishment clause has been very clear on party lines. The division on the free exercise clause much less so. Both liberals and conservatives are divided over free exercise. Religious conservatives want strong free exercise protections. Secular conservatives see that as federal judicial activism. Liberals are divided between civil libertarians and people who think that free exercise rights really just benefit conservative believers. So anything could happen. If, as I predicted, the Great Awakening comes to an end and religious intensity subsides, then the establishment clause may not loom nearly so large in Supreme Court appointments as it has over the last 25 years. The free exercise clause has never loomed very large and what a justice thinks about free exercise is always a surprise that we learn about after he gets there. One of that is at all certain and fundamentally we don't know which side is going to be doing the appointing. Well, so I've stuck my neck out and made some real predictions. This is a fool's errand. If I am right, the only payoff is an old man's bragging rights. I, too, will be 84 in 2032. And if I am wrong, the payoff is ridicule. We all remember the 19th century director, who was about time to shut down. Everything important has been invented. And I hope I've avoided howlers like that, but only time will tell. Our next speaker is David Little, who's a professor of practice and religion, ethnicity, and international conflict at the Harvard Divinity School. Prior to that he was a scholar in religion, ethics, and human rights in the United States Institute of Peace. And he's been an active worker in religious liberty for many, many years. This is an opportunity to predict the last 25 years of your career, which are ahead of you at this very moment. Thanks very much, Michael. And let me say what a great pleasure it is and an honor as well to be part of this wonderful celebration. In order to sketch a way forward in regard to the international protection of religious freedom, it's important, I think, to take stock of where things are. According to Malcolm Evans, in his important volume Religious Liberty and International Law in Europe, published in 97, and briefly reaffirmed in Malcolm's contribution to this large desk book facilitating freedom of religion or belief, things do not stand in a very good position. In that desk book he says, the last 50 years of the 20th century have seen a diminution in the importance attached to the achievement of freedom of religion or belief, both by its incorporation into the human rights canon and by the manner in which it is fared as a human right. And he goes on in the book I mentioned to speak again critically about not only the lack of accomplishment on the part of the system, but that many of its fundamental commitments, he speaks of secular commitments, universalist commitments, lead in the wrong direction from his point of view. Basically, he says at one point, there is a problem that the human right system as it endeavors to protect religious freedom or belief is likely to become an oppressor of the believer rather than a protector persecuted. Well, Malcolm Evans raises, I think, some very important questions. He is, after all, a specialist, not a casual outside critic of the human right system from whom you hear many of the similar complaints. But his comments, in my view, are unsettling. Because he is a specialist I think it's important to respond to him as thoughtfully as one can. Most specialists in the field of whom I'm aware do not attack the very foundations of the system and the premises on which it rests, but rather they attack this or that feature, this or that failing of the system as it tries to protect religious freedom. I respond by arguing that it is important to see international protection of religion or belief in the context of the content and purpose of the human right system as a whole as it emerged after World War II. And the best way I go on to argue to understand the content and purpose of the human right system as a whole is to view it as an example of a revised or adjusted version of John Rawls's idea of public reason. Seen in this way I will suggest we can appreciate the continuing contribution of the human right system to the protection of religion or belief. That's my argument. The rest is simply explanation and elaboration. Let me begin by reminding you of the critical features of Rawls's idea of public reason. Public reason according to Rawls provides common terms of discourse in the society made up of citizens espousing a variety of different comprehensive doctrines as he says. And a comprehensive doctrine is things we've been talking about in this session so far. A set of basic fundamental ideals and values that are understood to apply to all aspects of human life. They can be religious or philosophical, but they are comprehensive in that sense. Secondly, public reason is framed according to Rawls solely to apply to the basic structure of society, particularly its constitutional essentials, that is the basic rights, liberties, opportunities that are, as Rawls says, characteristic of constitutionally democratic regimes. These basic principles frame the concept of public good and public good will be understood on Rawls's account as anything that is consistent, publicly expressed, consistent with the constitutional essentials. Rawls adds this very important point, no reason why he says any citizen should have the right to use state power to decide the constitutional essentials in keeping with that person's particular comprehensive doctrine. I think I should emphasize that for Rawls, it's the setting of the essentials that's the key point. That's where religious contributions are disallowed. Outside of that, as best I can understand Rawls, religious language and discourse is perfectly permissible in the public arena. In fact, as we will see, it's hard to avoid religious discourse in trying to draw the lines between what an acceptable religious exemption is and an unacceptable one. It's very hard to imagine a public arena in which religion isn't rather directly addressed. Next, public reason for Rawls is supported by the idea of an overlapping consensus. This is not an accidental coincidence of views, but the convergence of views of people representing very different comprehensive doctrines around a common notion of public reason. Furthermore, Rawls says based upon a shared moral commitment to the basic terms, that is Rawls even uses the term a duty of civility is understood in the notion of public reason. Next, it's self-confined or limited discourse. That is, it's independent of comprehensive doctrines, but it makes room for these doctrines within the constitutional essentials. So long as the comprehensive doctrines are consistent with those fundamental core essentials, they are tolerated but encouraged. In short, public reason is a common framework of communications based upon values each citizen can reasonably expect others to endorse including tolerating diverse comprehensive doctrines in keeping with the basic terms of public reason. And finally public reason for Rawls is fundamentally bounded by the constitutional essentials and therefore is fundamentally legal or judicial. The Supreme Court in any constitutional democracy says Rawls is the exemplar of public reason. Now, in certain respects the human rights system matches John Rawls idea of public reason very closely. First, if you read the documents, these are common terms of discourse where citizens espouse a huge variety of different comprehensive doctrines and no particular comprehensive doctrine gets to set or determine the constitutional essentials. Second, it is a system that is the human rights system is a system of constitutional essentials, basic rights, liberties, opportunities, framing the limits of the idea of public order. Third, it supposes an idea of overlapping consensus in Rawls's sense, that is, moral commitment to some kind of notion of civic duty. And I can't exemplify all this, but the documents are in my view dripping with comments to this effect. For the discourse of the human rights material is limited or self-confining in the way Rawls recommends. That is, the discourse is taken to be independent of comprehensive doctrines and yet respectful of them within the limits of the constitutional essentials. I should note in passing, as Johannes Morsink makes clear in his, in my view, indispensable book of the drafting and meaning of the Universal Declaration of Human Rights, he makes clear in that book among other things that I'm going to cite that the efforts to include references to metaphysics or specifically religious doctrines in the preamble to the Universal Declaration were eventually omitted and excluded and thus Morsink comes to the conclusion, I think correctly, that this is properly understood a secular document. That is to say, it does not refer to matters that comprehensive doctrines refer to. It refers only to that shared argument. I'm going to go back to the discussion of human rights. If you like this worldly set of concerns, that the participants in public reason are committed to. And finally, it's legal or judicial language. One thinks, of course, of the European Court of Human Rights now, there is only a court. No longer is there a commission. There used to be a commission office of Special Rapporteur occupied now as many of you know by Asme Jahangir. And one thinks of the Human Rights Committee, which is that quasi-legal body that is designated by the International Covenant on Civil and Political Rights to interpret and apply the International Covenant on Civil and Political Rights. I say that Rawls's idea of public reason and human rights matches rather closely, but there is one critical exception. Rawls's idea of public reason does not fit exactly with the international human rights system, nor with the provisions for freedom of religion or belief in particular. Some important adjustments I'm going to suggest must be made between the system and Rawls's position. Rawls's idea is tailored for established sovereign nation states that already understand themselves to be constitutional democracies. He emphatically does not mean his theory to apply to all individuals universally in the way that the human rights documents do. Since Rawls's theory, when applied internationally in his book called The Law of Peoples, he starts with the idea of sovereign peoples, not with individuals and the representatives of those sovereign peoples. And any reasonable international agreement, Rawls argues, would permit significant deviations from human rights norms, in particular the right to non-discrimination based on religion or belief. Accordingly, Rawls's idea of rights, fundamental rights is derivative. Rights for him are, and this is a very important point, I think, are post-political and not pre-political. In a well-ordered constitutional democracy, provisions for basic rights come only after the founding agreements of the society have been accepted. Moreover, the founding agreements, that is the fundamental terms of cooperation, are determined by, in Rawls's words, reciprocal advantage. The reciprocal advantage presented to the contracting parties and that notion does not explicitly in my interpretation rest upon prior moral claims or entitlements. In contrast to John Rawls, the vocabulary of the human rights documents and the interpretive setting in which that vocabulary was worked out is inescapably universalist and pre-political. Human rights apply to all human beings and are understood to precede various international agreements and covenants and the vocabulary depends in my interpretation on a very explicit idea, not I shouldn't say explicit, on an important idea of prior moral entitlement. Phrases like this from the preamble to the Universal Declaration make that clear whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, etc. That seems to me to make clear this moral point. We might call this, I suggest a non-comprehensive moral commitment to the constitutional essentials that are elaborated in the documents. It allows for but does not depend on various religious or philosophical comprehensive commitments and these are, as a matter of fact, protected under Article 18 of the ICCPR and the Universal Declaration as well as Article 9 of the European Convention. But I'm suggesting that this is a moral understanding. I think this is very much in the tradition of the natural rights and I wanted to add here that in relation to the work of this center the contribution to the recovery of and rediscovery of the natural rights tradition is very important. First, Brian Tierney's work, I've just been told by John Whitty that the very book by Tierney, Idea of Natural Rights, came out of a series of lectures given on these very premises and then secondly we have John Whitty's very permanently forthcoming book in a couple of weeks. John tells me on Calvinist notions of natural rights. These are very exciting contributions it seems to me and this center can take a great deal of credit for reinvigorating this tradition. My point is that the human rights system very much is to be understood in that tradition and we need to rethink all that accordingly but there is a problem I concede that Malcolm Evans if he were here would say all very well so you've shown that human rights and Rawls's notion of public reason are compatible well I have a problem with Rawls's notion of public reason therefore I have a problem with human rights what do you say to that and I must respond. The way I would respond is to cite Morsink's basic conclusions about the context let's say the provenance in which the human rights language was formulated. Morsink shows first and foremost that the idea of human rights is grounded in a feeling of shared moral revulsion against the absolutely crucial factor of the Holocaust encompassing as it did the array of atrocities perpetrated so widely in the 20's 30's and 40's without that shared moral revulsion the declaration would never have been written as Morsink in diametrical opposition to Hitler's outlook the drafters believed that any morally healthy human being would have been similarly placed in similar circumstances moreover this shared outrage explains why the declaration has found such widespread support and we may go on to add why it has found its way into the preambles and early articles of many constitutions around the world as well as why the human rights system has resonated as it does so palpably in so many cultures inside so many cultures around the world the assumption here Morsink makes not unreasonable in my view is that expressing moral outrage in response to Hitler's atrocities is itself a critical if minimal defining characteristic of what it means to be a healthy morally healthy human being these reactions that Morsink describes involve three critical interrelated convictions one assuming that the use of force defined as the infliction of death impairment severe pain injury or confinement big strong moral justification wherever it occurs no human being could reasonably doubt that Hitler's grounds for the kind and amount of force used at his command appeals to a preposterous theory of racial superiority to unsubstantiated claims of imminent external threat all these were grossly an error and led to forms of arbitrary abuse that must be called atrocities to Hitler's atrocities rested note on a comprehensive doctrine of collective domination namely the right of a government to treat citizens in any way that it saw fit and given the dramatic imbalance universally between the technology of force and the institutions of restraint this remains an abiding threat and three an indispensable means of inhibiting the recurrence of atrocities of the kind witnessed in World War II would be the articulation and enforcement of individual human rights laid out in the human rights documents well this brings us to the central point of this paper namely the protection of religious freedom or belief here I simply want to make the point right I am concluding I just want to make the point that Hitler's attack on the state of affairs in during the Second World War was fundamentally an attack along with other things on freedom of religion or belief in other words the attempt by Hitler to impose a comprehensive doctrine to enforce that at great cost to the victims was precisely to deny the very things that have since been enumerated in the international documents as the fundamental rights of religious freedom freedom of religion or belief the rights not to be discriminated against based on religion or belief the rights of minorities to have their fundamental cultural linguistic and religious concerns protected and so on now a major point that I wish to make and try to make in this paper is that the coercive imposition of one comprehensive doctrine or another urgent problem around the globe and the human rights system in its fundaments at least provides the kind of protection for freedom of religion or belief against that widespread threat here much of my work at the U.S. Institute of Peace on ethno-religious conflict places like Sri Lanka, Sudan, Bosnia also now Iraq and so on seem to me to manifest that I'm trying to make and finally in the part of my paper where I devote fairly extended attention to what's going on in the case law and in the interpretation of the law by the European Court and by the international UN quasi legal bodies I draw the following three conclusions particularly in the European system there has until recently been a strong reticence to protect minority beliefs of the individual and peculiar or unfamiliar in Greenwald's term religion or beliefs however there seems to be a change a recent book by Paul Taylor on freedom of religion UN and European practice a book by Carolyn Evans many of the interpreters in the desk book that I've referred to conclude convincingly in my view that there is a movement within the European Court now and certainly at the level of the UN bodies to restrict the interests of the state and make much greater room for the practices of conscience fundamentally held beliefs to go a much greater distance towards resisting the kind of encroachment of comprehensive doctrines that have until the present been too extensively imposed that's the first conclusion the second one is that by expanding the domain of free exercise the European Court and the UN institutions are exemplifying the self-confining character of public reason that is to say in interacting now with more and more of the minority groups the unfamiliar groups giving them more protection they are confining the reach of the public order they're admitting that religion does have a restraining influence upon the shape of public order and that is being admitted a very encouraging development in my view and finally I conclude that as I said earlier religious language is not being excluded from the public discussion in fact it's being more and more welcomed more and more addressed more and more considered in the deliberations of these judicial and quasi-judicial bodies in coping with how far we go in exempting or limiting freedom of religion or belief is the way forward it's to acknowledge and embrace these tendencies as I've described them and to carry forward with them, thanks very much Professor Michael Perry has been a blessing at Emory University since he arrived he's contributed on so many different levels to the law and religion program to the center for the study of law and religion to the law school itself he's published more than 60 articles he's written nine books before he came to Emory he was a professor at Wake Forest and before that at Northwestern but now he's here and we're ever so grateful to have him as a member of our faculty and we're looking forward to his remarks predicting the next 25 years of law and religion my leader John Woodie who is much larger than I am has threatened me with physical violence if I exceed my allotted time so if you see him approaching the stage you'll know what's going on ladies and gentlemen I am privileged and it's a pleasure to be among you this morning and it's a pleasure and a privilege to be a member of the center for the study of law and religion John Woodie's threats notwithstanding projects is called the Christian jurisprudence project the book I'm writing for that project is tentatively titled liberal democracy religious faith and moral controversy the two principle moral controversies I address in the book are abortion and same-sex marriage my comments this morning are drawn from one of that book's chapters in the chapter of the book that precedes the chapter from which my comments this morning are drawn I set forth what I judged to be the fundamental warrant for liberal democracies embrace of the right to freedom of religious practice then in this chapter I turn to the question whether given the fundamental warrant for liberal democracies commitment to the right of religious practice liberal democracy should be committed as well to what I call the right to freedom of moral practice the latter right as I conceive it is analogous to the former right which in the words of article 18 of the international covenant on civil and political rights protects one's freedom either individually or in community with others public or private to manifest one's religion in worship observance practice and teaching whereas the right to freedom of religious practice is to put it simply the right to practice one's religion the right to freedom of moral practice is the right to practice one's morality the former right protects one's freedom to live one's life on the basis of one's religious beliefs by which I mean here one's belief that God exists or one's beliefs about the nature, activity or will of God the latter right protects one's freedom to live one's life on the basis of one's moral beliefs by which I mean here simply one's beliefs about who about what kind of person it is good for one to be about the kind of life it is good for one to live about what it is good for one to do or not to do the typical religious believers moral beliefs at least her most fundamental moral beliefs are also religious beliefs her moral beliefs are inextricably bound up with her beliefs about the nature, activity or will of God because the nature, activity will of God is what it is this is the kind of person I should be this is the kind of life it is good for me to live this is what in this circumstance it's good for me to do so a religious believer's moral practice is also religious practice and as such is protected by the right to freedom of religious practice by contrast none of a non-believer's moral beliefs are religious beliefs so a non-believer's moral practice is not religious practice and is therefore protected, at least not obviously protected by the right to freedom of religious practice a non-believer's moral practice would be protected however by the right to freedom of moral practice moreover a believer's moral practice which includes her prayers and religious rituals would be protected by the right to freedom of moral practice the right to freedom of speech, for example, protects religious speech. If legislated, therefore, the right to freedom of moral practice, which is not religion-specific, would render the right to freedom of religious practice superfluous. Is there good reason for liberal democracy to embrace the right to freedom of religious practice, but not the right to the broader right to freedom of moral practice? Is there good reason that is for liberal democracy to limit government's authority to regulate one's moral practice if one's moral practice is religiously grounded, but not an authority to regulate one's moral practice if one's moral practice is not religiously grounded? Given the serious suffering it causes, government's denial to some or all its citizens of the freedom to practice their morality is unjustified and the serious suffering it causes is therefore unwarranted, unless government has a good reason to do so. This is so without regard to whether their morality is religiously grounded. According to the right to freedom of moral practice, understood as analogous to the right to freedom of religious practice, government has good reason to ban or otherwise regulate a moral practice if, but only if, the regulation is necessary to protect a public good, necessary that is, and here I quote the formulation in article 18 of the International Covenant, to protect public safety, order, health or morals or the fundamental rights and freedoms of others. Why might one believe that government can have good reason to regulate a moral practice even if the regulation is not necessary to protect a public good? The same two responses, the same two arguments come to mind here that came to mind in the preceding chapter where I address the analogous question about governments regulating a religious practice, the argument from truth and the argument from the unity and stability of a society except that now the two arguments are about morality rather than religion. The argument from truth, certain moral teachings are true. For example, the teaching that homosexual sexual activity is immoral and no government should lack authority to ban or otherwise regulate practices that may lead some people to reject those teachings. That argument is not persuasive to those of us after reflecting on, who, after reflecting on historical experience, are skeptical not just about government's ability, that is about a political majority's ability to discern religious truth, but also about its ability to discern moral truth. We are wary not just about trusting government as an arbiter of religious truth, but also about trusting it as an arbiter of moral truth. And as Michael McConnell, who's known to many of you, has written, I have here in a parenthesis, the civil magistrate is no more competent a judge of the truth about human sexuality than about religion. We agree with luck that the business of laws is not to provide for the truth of opinions, but for the safety and security of the commonwealth and of every man's, particular man's goods and persons. In our judgment government should have authority to ban or otherwise regulate a moral practice, but only if, but only if the regulation is necessary to protect a public good. It would be more precisely accurate to say that we are wary about trusting government as an arbiter of some, but not all, moral truth. As I explain early in the book from which these comments are drawn, liberal democracy is constitutively committed to the inherent dignity and inviolability of every human being. That commitment is in part what makes a democracy a liberal democracy. That every human being has inherent dignity and is inviolable is axiomatic for liberal democracy. So we are not wary about government proclaiming and acting in accord with the moral proposition that every human being has inherent dignity and is inviolable. Secondly, government must protect the public good. It must protect public safety, public order, public health and public morals and the fundamental rights and freedoms of its citizens and others subject to its jurisdiction. Decisions about how to do so are whatever else they are, moral decisions. So we are not wary about, at least we must accept government as an arbiter of moral disagreements about how to protect the public good. But we are wary about and we need not accept government as an arbiter of moral disagreements that do not implicate the public good. The second argument, the argument from the unity stability against the right to freedom of moral practice as it were. It is sometimes important to the unity and stability of a nation that the morality that supports that unity and stability, whether that morality be true or not, be nurtured and protected from attack. No government should lack authority to ban or otherwise regulate practices that may weaken the credibility of such a morality. But that response is far fetched. Unless it is necessary to protect the public good, the coercive imposition of moral uniformity, like the coercive imposition of religious uniformity is, if anything, more likely to corrode the unity of a liberal democracy than to nurture it. Therefore, government should not ban or otherwise regulate a moral practice unless it must do so in order to protect the public good, a public good. So the fundamental warrant for the right to freedom of moral practice is substantially the same as the fundamental warrant for the right to freedom of religious practice. Just as government should not be trusted as an arbiter of religious truth, it should not be trusted as an arbiter of moral truth. More precisely, it should not be trusted as an arbiter of moral disagreements that do not implicate the public good. Moreover, the coercive imposition of moral uniformity, like the coercive imposition of religious uniformity, is not necessary to achieve or maintain the unity and stability of a liberal democracy. Indeed, again, the coercive imposition of moral uniformity is, if anything, more likely to corrode than nurture the unity and stability of a liberal democracy, especially if the liberal democracy is, as liberal democracies typically and increasingly are, morally as well as religiously pluralistic. Government has good reason to ban or otherwise regulate and should have the authority to ban or otherwise regulate a moral practice or religious practice, but only if the regulation is necessary to do what every government should do and therefore must be legally free to do, protect public safety, order, health or morals are the fundamental rights and freedoms of others. Recall that according to the best, of course it's hard for you to recall since you didn't read the preceding chapter, but recall that according to the best understanding of the right to freedom of religious practice, government not only may not regulate a religious practice, this does not threaten the public good, government also may not pass judgment on, government must remain steadfastly agnostic about the truth or falsity of a religious belief that animates, of the religious belief that animates such a practice. Analogously, according to the best understanding of the right to freedom of moral practice, government not only may not regulate a moral practice that does not threaten the public good, government also may not pass judgment on, government must remain steadfastly agnostic about the truth or falsity of the moral belief that animates the practice. A basic reason for the right to freedom of moral practice, after all, is profound awareness about government, about a political majority as an arbiter of moral disagreements that do not implicate a public good. As it happens, the world's liberal democracies not only should in my judgment embrace the right to freedom of moral practice, they already do embrace it, albeit only in the following limited sense. Recall that the international covenant on civil and political rights is a treaty to which the United States and the world's other liberal democracies have subscribed and many others as well. Now, look again at article 18 of the international covenant and I'll read it to you a little more in full here. Everyone shall have the right to freedom of thought, conscience, and religion. No one shall be subject to coercion which would impair his freedom to have or adopt a religion or belief of his choice. It talks about the state parties undertake, they undertake to have respect for the liberty of parents and when applicable legal guardians to assure the religious and moral education of their children in conformity with their own convictions. So article 18 plainly protects not only one's freedom to practice one's religion but also one's freedom to practice one's morality including the freedom, liberty of parents and when applicable legal guardians to assure the moral education of one's children in conformity with one's own convictions. Like the international covenant, two other important human rights treaties, the European Convention and the American Convention on Human Rights protect not only freedom of religious practice but also freedom of moral practice. Now just as the freedom, right to freedom of religious practice is not because it cannot be absolute, so to the right to freedom of moral practice is not because it cannot be absolute. Government may regulate even to the point of banning a practice if necessary to do so in order to protect the public safety, etc. But notice in that litany of things that count as a public good is the phrase public morals. What are public morals? Assume that a political majority is morally opposed to one's practice without regard to whether the practice threatens public safety, public order or public health of the rights and freedoms of others. If such opposition were to count as a sufficient public morals justification for regulating the practice, both the right to freedom of religious practice and the right to freedom of moral practice would be illusory rights. Anytime a political majority judged one's practice to be a moral, even if the practice did not threaten public safety, public order or public health or the fundamental rights and freedoms of others, a political majority could ban or otherwise regulate the practice. What should count then as a sufficient public morals justification for regulating a religious or moral practice? There are many practices that when done in private are unproblematic, but that if done in public would be quite problematic, even if we assume that they do not threaten public safety, public health or public order or the rights and freedoms of others. For example, a married couple copulating. Imagine a practice that fits this profile. If done in public, the practice would not threaten public safety, public order, public health of the rights and freedoms of others. Nonetheless, if done in public, the practice would be highly likely to cause an ordinary onlooker, including an ordinary onlooker with his or her young children in tow to be greatly uncomfortable, embarrassed or the like. A ban on the public doing of such a practice is surely a legitimate way to protect public morals and obviously different cultures. In any event, if the mere fact that a political majority judged one's practice to be a moral, a moral without regard to whether the practice threatened public safety, public order, public health and so forth, if that were to count as a sufficient public morals justification for regulating the practice, then the right to freedom of moral practice would be illusory. There are two important related questions I don't address in this chapter. In a liberal democracy such as the United States, should courts play any role in enforcing against government the right to freedom of moral practice? If so, how deferential or non-deferential, that is to the country's lawmakers and other policy makers, should the courts be in enforcing the right? I have addressed such questions elsewhere at length, and my reference here is to a book in constitutional theory that I have finished that will be published next year. Assume that in a particular liberal democracy, the courts play no role in enforcing the right to freedom of moral practice, in which case the right is not what we conventionally recognize as a legal, that is, judicially enforceable right. It may nonetheless be the case that in that liberal democracy, the right is a fundamental political moral norm in the culture of that liberal democracy. Now, for reasons I've given in this chapter, I think the right should be in the culture of every liberal democracy, at least a fundamental political moral norm. And as such, the right, the norm, can play an important role, as my chapters on abortion and same-sex marriage illustrate, in shaping the liberal democracy's discourse about vexing political moral controversies, such as those in the United States over abortion, should it be criminalized and same-sex marriage, should it be legalized? The right to freedom of moral practice is, I think, a compelling broadening of the right to freedom of religious practice, a broadening animated by the logic, so to speak, of the fundamental warrant for liberal democracy's commitment to the right to freedom of religious practice. In a democracy, the cardinal function of the right to freedom of religious practice is not to prevent government from regulating any religious practice whatsoever, but to prevent it from regulating a religious practice if there is no better reason to do so than that a political majority disapproves of, is hostile to, the practice. Similarly, the cardinal function of the right to freedom of moral practice is to prevent government from regulating a moral practice if there's no better reason to do so than hostility to the practice on the part of the powers that be. And as with the right to freedom of religious practice, so too with the broader right to freedom of moral practice, the fundamental warrant for the right to freedom of moral practice is one all citizens of liberal democracy. Catholics no less than non-Catholics. Christians no less than non-Christians. Believers no less than non-believers have reason to affirm. Political majorities are not to be trusted beyond a certain point as arbiters of moral truth. Moreover, the coercive imposition of moral uniformity has not been necessary to achieve or maintain, and indeed, if anything, is more likely to corrode venture unity and stability in democracies. Religious believers, and actually, Cathy, I'm thinking of Mark Lilla's book when I write this paragraph, religious believers do not have less reason than non-believers. Indeed, religious believers and non-believers have the same fundamental reason. So this is a kind of political theology. To insist that government not ban or otherwise regulate a moral practice unless the regulation is necessary to protect public safety, order, health, or morals are the fundamental rights and freedoms of others. In necessary things, unity in disputed things, liberty in all things, charity, so said in the 17th century, Puritan Richard Baxter. Last weekend, at the annual meeting of the editorial board of the Journal of Law and Religion, my friend and former Chicago colleague, Robin Levin, whom I think may be here this morning, who meant to be, presented me and the other editors, with some comments on this chapter. And I want to conclude by quoting some of what Robin had to say, because maybe it's even more interesting than the chapter. Robin said, it is important to recognize that freedom of moral practice is a moral commitment. Because although the moral arguments for it are the same as the moral arguments for religious freedom, we cannot offer the same practical or prudential incentives for moral tolerance that Locke, for example, could offer his contemporaries for accepting religious tolerance. He could suggest plausibly that the, that toleration would reduce, that religious toleration would reduce the social friction of religious conflict and for a nation that still had a weary eye to the recent history of religious warfare, that was often a good enough reason to try it. Freedom of moral practice, I think, is not likely to reduce conflict, but to shift its terms. We will spend less time, energy and argument trying to impose moral standards on other people, but we can hardly avoid a more intense conflict over exactly what it means for government to protect public safety, order, health, morals, or the fundamental rights and freedoms of others. To adopt freedom of moral practice would not end the debate about law and morality, but it would shift the grounds from questions about personal choice and individual behavior to questions about justice and human rights. So, said Robin, if we adopt Michael's proposal about moral tolerance and the purposes of government, we will need to be candid that we are not proposing it as an end to social conflict over moral issues. We are proposing that if we are going to make morality the subject of political, we are proposing that if we are going to make morality the subject of political discussion, which, of course, we must do. The questions that issue most concern things with which government is necessarily involved, not simply those issues in which some of us want to use the coercive powers of government to keep other people from doing things we think they ought not to do. I, for one, said Robin, would welcome that shift in the terms of public moral argument, but I wouldn't expect it to be any less contentious than the arguments we are having now. Unfortunately, for you to see what payoff, if any, there is for my proposed right to freedom of moral practice as one of the things that structures political discourse about issues like abortion and same-sex marriage, I'd have to present to you those two chapters so you can see how it works, but my colleague John Woody is threatening, and so I'm going to beat a quick retreat back to my seat. Thank you. We've heard from three remarkable speakers. There's a brief opportunity for questions and answers until 12.30 promptly. If you'd like to ask a question, which is not an opportunity to present an answer, but merely an opportunity to present a question, please step forward to one of the two microphones. If you need a hand, Mike, brought to you, please signal. Mark Scarberry, Pepperdine University School of Law. A question for Professor Perry. Is the right to freedom of moral practice a right to do that which a person believes is morally permitted or permissible, or a right to do that which a person believes is morally required? For example, if we shift it to the religious context, my faith doesn't prohibit me from engaging in gambling and moderation, but I would never say that I have, therefore, a right to religious practice of gambling. So if we were to say my question essentially is, are you moving us toward the harm principle that that which one person says is immoral cannot be prohibited unless it can be shown to cause difficulties with public order or the public good, or are you saying that that which a person believes morally they must do, we ought to permit them to do that unless there are a public problem. So I think, for example, of casual sexual immorality or gambling, or even in many cases abortion, which one person might say morally impermissible, the other person, the woman who says I want to have an abortion may say, well, I don't feel I morally have to have an abortion, but I do think all things considered, it would be the better approach. So how far does this right to moral practice go? Well, I'm not going to give you a very full or satisfactory answer to that. I spent a chapter discussing that issue in particular. Let me just say two things. First, there's a profound difference between Mills' harm principle and the Article 18 right. The necessary to protect a public good, the public safety, public health and so forth doesn't exclude the possibility that the state is acting to protect someone from the costs to himself or herself of their own actions that are detrimental to their health, their safety, what have you. So that issue came up in a course I'm teaching this semester and I wouldn't want any of you to assimilate my right to freedom of moral practice to Mills' harm principle. We can talk about that maybe in one of the sessions, we're not in a formal session, but I just want to be careful to emphasize that. As to what implicates the right, do I have to believe myself to be morally required to do something in order for the right to be implicated or morally forbidden to do something? No, certainly not. And that's not true with respect to religious practice either. The requirement we impose on government is that it has to have the right kind of reason to forbid me from doing something that I very much want to do or requiring me to do something I very much don't want to do, whether I see that as a matter or whether moral obligation is a part of my vocabulary. So the right is implicated even when government is preventing me from doing something that I don't believe myself morally obligated to do, but I believe in fact this would be good for me to do. My life would go better. This is the kind of person I should be. That's that's sufficient for purposes of the right. Okay, Andy Koppelman, Northwestern University. My questions for Michael Perry. Two related questions. You started to answer one of them actually. On the public morals prong where I take it public morals is preventing offense to others of a certain kind when something is done in public that would be listed done in private. An argument can be made an argument has been made that that would extend to some kinds of offense that are themselves morally controversial. For example, the same kind of offense that some people would feel at seeing a married couple engaged in sexual intercourse. Other people might feel by seeing two men holding hands or kissing in public, which would be fine if it were people of opposite sex doing. So I'd like to hear a little bit about how you'd handle that case. And then the second question is with respect to you said that it's okay to use the public good prong encompasses paternalistic interference, preventing people from harming themselves. Does that include harm, not just physical harm, but harm to character? I take it that the most basic reason why we outlaw the possession of heroin, for instance, which if it's not taken in a lethal dose, isn't going to destroy your internal organs, the way that alcohol or tobacco will is because we think that this is going to fundamentally degrade somebody's character in a destructive way. There is a there is a comprehensive moral view, according to which that's fine to do that. If you could imagine a determined benthamite utilitarian saying, Well, you know, if heroin gives me more happiness than anything else, I might even be morally obligated to keep taking it. I'd like to hear how that case gets handled within the public good, as you understand it. The there is no question about that in a culture that takes seriously my right to freedom of moral practice, Andy, there are going to be difficult cases for the polity if it's merely an informal political moral norm or a court, if it's judicially enforceable, to ask the question about whether in this culture at this time and place, an ordinary person with or without his children in tow and so forth. So they're going to be difficult cases. And I'm not not going to sit up here and try to, you know, tell you how I would resolve each and every one of these cases, but do note that that becomes an issue for a culture that takes seriously the right to freedom of moral practice, a culture that doesn't take the right seriously, then the issue doesn't exist, presumably to the detriment of moral minorities, even if some of those cases under the right get resolved, particular cases in a way that's not necessarily to the betterment of moral minorities. With respect to heroin use and character, I don't want to take up too much time here, other people want to talk, but I think that it's unrealistic not to see the harms that are done by substance abuse as much more pervasive than just harming character. So I have no trouble, and you probably feel the same way as a parent, have no trouble understanding the importance of regulating substance abuse and doing our best to deal with it, to go far beyond what you call the character harms. But that's maybe that's a conversation for another time and place. Elliot Dwarf, American Jewish University. This is, I'm afraid, also for Professor Perry, you gave, I think, a very good argument in terms of government protecting freedom of religion and freedom of moral conduct in terms of the fact that it doesn't undermine the government's function to protect order, safety, health and so on. But isn't the argument stronger than that? Namely that the reason why you want to have freedom of religion and freedom of morals is because the society itself will gain from that kind of active debate within the society about what ought to be considered to be moral. I'm thinking of some of the things, some of the writings of Madison, Madison in particular, but also Jefferson, who really had a very Aristotelian notion of how you gain wisdom generally. And part of it is almost a Tom Udick notion, actually, that you get the kind of sound and fury of people arguing with each other. And that that, that's the only way in which you can get to any kind of truth short of being God effectively. The reason why I don't feature that argument either in the chapter on religious freedom or in the chapter on moral freedom is the following. I am trying to identify what seems to me to be the fundamental warrant for embracing the right by which I mean a warrant that is very ecumenical, that all citizens of the society can embrace, as I say, non-Catholic as well as non-Catholic, Christian as well as non-Christian believer as well as non-believer. The problem with what that sort of argument, which I take, I think of as a kind of million argument, is that it requires some of the citizens in the society to say that we're not already convinced of the moral or religious truth of this or that. And I don't insist that they do that. I don't insist that they abandon their conviction that with respect to this issue, we know what the moral truth is. With respect to this issue, we know what the religious truth is. So it's not that there are other arguments for the rights to freedom of religious practice and moral practice, including maybe some specifically religious arguments. But what I'm trying to do is to identify what I think to be the fundamental, because ecumenical argument for the citizens of a liberal democracy. I too share with Professor Perry this deep pathological fear of John Witte. I've been working in the program even longer than Michael has. And here he is to tell us that this session is over. Please. Would that my students were so cooperative. I have not come to commit assault and battery on my dear friends Michael Perry or Michael Broide, but I am here to give a very, very hearty thanks to our three panelists and with apologies. And with the apologies to them and to all of you that this wonderful conversation that should go on for several more hours needs to be abruptly terminated so that we can go to eat. We have two options for you and those are determined by what is on the back of your little hang tag. If on the back of your hand tag, there is nothing but blank space ex nihilo. Then may I invite you to go down one floor either using the elevator or the staircases and outside here on the terrace. We have a wonderful tent set up with three hundred and fifty five seats and there will be a tent meeting for you to have your lunch. If on the back of your name tag, there is a silver sticker, would you please proceed up one floor to the fifth floor and use either the staircase or the elevators and enter the faculty lounge. We'll be serving lunch in these respective places in about five minutes. Finally, before you break for lunch, you're going to find in your packet of materials a little evaluation form to give us a bit of an assessment of what you've heard. And we would like to ask you to think about filling that in the course of the afternoon and the quid pro quo for doing that is will give you a gorgeous red poster that you have seen around framed that says the convergence of law and religion, law and religion and interaction. That poster is available to you. But my colleagues tell me that you can't get one until you fill in the form. So if you would be at the registration desk in the afternoon with the form, you get a poster. Bon appétit. Thank you. The preceding program is copyrighted by Emory University.