Debate Magazine

Ronald Dworkin & Juridical Religion

By Cris

Before his recent passing, legal scholar Ronald Dworkin seems to have been contemplating this mortal coil and the prickliest of problems, namely religion. This seems to be a late-life tradition for analytical philosophers who, looking back on their cold-eyed and hard-headed approach to life, realize they may have missed something. But old habits die hard, and these larger philosophical ruminations usually bear the impress of all that youthful logic. Robert Nozick’s belated conversion and uninspiring paean to the “holiness of everyday life” in The Examined Life (1990) comes prominently to mind.

So what does Dworkin have to say in this excerpt from the first chapter of his forthcoming book, Religion Without God? It’s hard to say. He makes some interesting observations about the nature and definition of “religion” but none of these are new or particularly novel. His thinking on these matters lacks its customary clarity and analytical rigor. We can probably chalk this up to late-life reflection, when doubt creeps in and jurisprudential metaphysics lose their luster. Or it could simply be the case that the discursive techniques so useful in law don’t translate well when it comes to religion. It could be both.

I’m not really sure and it appears Dworkin wasn’t either. I do know that his expansive, ecumenical, and value-laden view of religion is the sort of thing that appeals only to highly educated, progressive intellectuals, and won’t appeal in the least to the billions of people on the planet who consider themselves to be religious. So I doubt his posthumous efforts will have much effect. Nor will it do much to dampen the political enthusiasm and vitriol of American religionists, which appears to have been Dworkin’s hope.

Dworkin’s foray into religion did, however, remind me my own earlier-in-life effort to define religion for juridical reasons. In 1995, I was clerking for a wonderful federal court judge when we had a case requiring him to determine whether the avowed high priest of the “Church of Marijuana” was immune from criminal prosecution because of his religious beliefs. The defendant’s clever defense was that his beliefs and rituals required the possession of large quantities of weed, all of which allegedly was protected by the federal Religious Freedom Restoration Act (“RFRA”).

After copious research and consideration, my judge rejected that defense in an opinion which makes for interesting reading all these years later. The decision, US v. Meyers (open), 906 F. Supp. 1494 (D. Wyo. 1995), covered a fair amount of legal and philosophical ground and was later affirmed by the Tenth Circuit Court of Appeals. The appellate court even adopted our proposed “test” for identifying a religion under RFRA. When I researched this opinion and prepared a memo for the judge, I had not yet been trained in anthropology. While this shows, I’m not sure it would have changed much. Defining religion for legal purposes is not the same as defining it for anthropological or analytical reasons.


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