The Priority of Law: A Response to Michael Stokes Paulsen

Abstract

Professor Paulsen’s Priority of God is an interesting and provocative contribution. Let me offer, though, a few critical thoughts. First, an observation, which perhaps Professor Paulsen might not disagree with, but which other friends of religious freedom might find troubling: Under the Priority of God theory of religious freedom, a mostly irreligious country—like some European countries today, and like America might perhaps one day be—shouldn’t provide such freedom.

Second, Priority of God argues for a legal system that would require the government to judge quintessentially theological questions. The article proposes a strikingly broad vision of religious exemptions, but naturally it can’t endorse exemptions from all laws, including murder laws and the like. So it cabins this vision by asserting that “surely there are some claims individuals make about God’s commands that are simply intolerably and irredeemably false."

Third, it seems to me that Priority of God doesn’t sufficiently address the key question of religious exemption law: Why should my belief in what God commands me to do allow me to take something away from you, when you don’t share this belief? 

Fourth, Priority of God seems to take the view that the Constitution enshrines a particular set of private rights, which we might enjoy without having others infringe them for religious reasons, but that the legal system may not recognize any new private rights that would have the same force.