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RELIGIOUS LIBERTY/ Rick Garnett: "Bigotry" v. "Sincerely held religious belief"

RICHARD GARNETT, Notre Dame University, examines the issue of religious liberty in the light of the recently vetoed Arizona RFRA proposal and, more generally, of antidiscrimination laws

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In the course of the conversations, debates, arguments, etc., about the recently vetoed Arizona RFRA proposal specifically, and exemptions from antidiscrimination laws generally, the questions are sometimes posed (a) whether a particular action reflects or is motivated by "bigotry" or by "sincerely held religious belief" and (b) whether there's really a clear line between the two.

We could say, I suppose that "bigotry" is just the word we attach to motivating premises and beliefs that seem particularly offensive or insufficiently rational or connected with reality. If we say this, then the line separating "bigotry" from "sincerely held religious belief" is not clear at all. Or, we could simply declare that an otherwise "bigoted" (under definition) action will *not* be labelled as "bigoted" if it reflects a certain kind of insufficiently rational belief, i.e., "sincerely held religious belief." But, this would simply be a declaration, an ipse dixit of sorts.

I'm not sure we should invest too much time or energy in trying to distinguish sharply -- for purposes of the typical liberal political community's antidiscrimination laws -- between conduct that is motivated by "sincerely held religious belief" and conduct that is motivated by "bigotry." It seems to me a better approach might be to start with this question: "When, if ever, should we accommodate or tolerate conduct that (i) the political community has decided, for reasons that it thinks sufficient and appropriate, to prohibit and (ii) is motivated by sincerely held religious belief?"

Of course, we could say "never", but I don't think we should (because we are committed, for now, to some form of religious liberty. We could say, "we should accommodate, unless the conduct is motivated by 'bigotry.'" Instead, maybe we should just say "we should tolerate or accommodate otherwise prohibited conduct that is motivated by sincerely held religious belief if it is possible to do so reasonably efficiently and without undermining the policies or values that underlie the prohibition or regulation." The "without undermining" inquiry is hardly cut-and-dried, but I think it could be done without trying to cull through "religious" motivations and separate them from "bigoted" ones.

Originally appeared in Mirror of Justice

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