Against Martyrdom

Paul Horwitz*

The debate between liberty and equality is at a particularly fierce, fertile, and interesting pass in the United States. Like many such conflicts over irreconcilable fundamental values, this struggle is always present but not always prominent. Often, it merely ticks away in the background while other issues—political, doctrinal, or theoretical—take center stage. From time to time, however, it vaults into the foreground, recapturing the attention not only of the academics in their hives, but of public commentators and the public itself. This is such a moment.¹ At the heart of the current conflict are two of the most prominent repeat players: religion, or religious groups, and the state.

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© 2016 Paul Horwitz. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Gordon Rosen Professor, University of Alabama School of Law; Visiting Professor, Harvard Law School. I am grateful to the editors of the Notre Dame Law Review for the invitation to participate in the Law Review Symposium on the anniversary of Dignitatis Humanae and for the comments of my fellow panelists on that occasion. A draft of this Article was presented at a faculty workshop at Harvard Law School, and I am grateful to Gabriella Blum, Avihay Dorfman, Richard Fallon, Noah Feldman, Gerald Frug, Benjamin Sachs, Steve Sachs, and Adrian Vermeule for questions and comments; to Netta BarakCorren, Abe Delnore, Christopher Lund, Michael Moreland, Eric Rassbach, and Mark Rosen for comments on a written draft; and to Sean Nelson for excellent research assistance.

1 For recent examples, see Mary Anne Case, Why “Live-and-Let-Live” Is Not a Viable Solution to the Difficult Problems of Religious Accommodation in the Age of Sexual Civil Rights, 88 S. CAL. L. REV. 463 (2015) (arguing that requests for accommodations of religious liberty pose threats to equality), Douglas Laycock, Religious Liberty and the Culture Wars, 2014 U. ILL. L. REV. 839 (proposing that with regard to issues of sexual morality, the positions of those advocating for equality and those invoking religious liberty are reconcilable), and Steven D. Smith, Die and Let Live? The Asymmetry of Accommodation, 88 S. CAL. L. REV. 703 (2015) (suggesting that the conflict between equality and religious liberty in the context of “culture wars” involves serious risks for both sides). Jennifer Pizer frames nicely, if somewhat partially, both the longstanding nature of the conflict and its recurrent, generational nature:

Our twin constitutional commitments to liberty—specifically religious liberty—and to equality may be seen to pose challenging puzzles when the religious demands of some threaten harm to others. The task of managing tensions between such conflicting claims is not new. But in each generation, the puzzles are novel in their particulars and can seem more challenging than the earlier ones because our society continually diversifies.