Richard W. Garnett
Richard W. Garnett is an Associate Dean and Professor of Law at the University of Notre Dame School of Law. Professor Garnett teaches and writes about the freedoms of speech, association, and religion, and also about constitutional law more generally. He is a leading authority on questions and debates regarding the role of religious believers and beliefs in politics and society. He has published widely on these matters, and is the author of dozens of law-review articles and book chapters. His current research project, Two There Are: Understanding the Separation of Church and State, will be published by Cambridge University Press. He is the founding director of Notre Dame Law School’s new Program in Church, State, and Society, an interdisciplinary project that focuses on the role of religious institutions, communities, and authorities in the social order.
The United States has a vital interest not only in monitoring, but in supporting and strengthening, the health of religious freedom around the world.
If the state wants to propose different values, or a different vision, to these women, let it makes its case. Persuasion, not prohibition, is the better way to proceed.
The proposed law would outlaw an ancient and core ritual of a religious community and given the fact that, the overheated rhetoric of many of the proposal's supporters notwithstanding, the practice in question is not seriously harmful, the law should, at the very least, include a religious exemption.
The hard question is how to craft reasonably clear, usable doctrines that will capture, and give effect to, the basic principle that one dimension of religious freedom is the freedom of religious communities to choose their own ministers.
The specific content and context of the offensive speech at issue in this particular case (i.e., a lawful gathering in a public place, a substantial distance from the private funeral in question) is such that – despite its offensiveness – the First Amendment should protect it from punishment through a jury's money-damages award.
As we all learned—or should have learned—in school, the Constitution of the United States created a new, national government of limited,...