Shameless self-promotion: I have a book of essays coming out this fall (Duke University Press), Wrestling With Diversity. The final piece in that book, co-authored with my daughter Rachel (it began as a seminar paper when she was at the University of Chicago Law School), asks if we can sustain, as a theoretical matter, the distinction between religion and what, for lack of a better way of putting it in a short posting, "non-religious culture." Recall Burger's disdain for Thoreau and, presumably, "Thoreauvians" in Yoder. Perhaps that's defensible if one is a wooden positivist and says, simply, "we have a free exercise clause that protects religion" and doesn't protect "cultural expression. That's why, among other things, there is no "Cultural Freedom Restoration Act," because there's no constitutional protection for something called "cultural freedom." But, of course, Rick, Mike McConnell, and others have made very powerful equality-based arguments on the impropriety of ! selecting out religion for adverse treatment. So what is it, either theoretically or even constitutionally, that allows us to dismiss the claims of the Thoreauvian homeschooler and give constitutional protection to the religious one? One answer, which we discuss (with acknowlegement to discussions about RFRA several years ago) is that what is distinctive about (some) religious claims is the threat of divine punishment for behavior not in accord with the religious doctrine. But, of course, many, if not indeed most, religious claims aren't based on a theory of "duty risking punishment for disobedience. Indeed, we discuss a thread from the RFRA discussion about whether I, a self-proclaimed "secular Jew," would be able to claim a right under RFRA not to be served pork, were I a prisoner, even though my abstaining from pork and shellfish has nothing to do with a phenomenological adherence to Jewish law (as opposed to "the custom of my people") or, even more, a fear or divin! e punishment should I eat the forbidden foods. So for us the mystery r regard to things ranging from demands for vegetarian meals, say, or homeschooling for their young.
sandy
