ABSTRACT
Old Tension, New Concern The tension between liberty and equality is as old as liberal theory and no doubt much older. But it is resurfacing with particular salience in recent years as the battle front in contemporary culture wars has entered the domain of religion. The tension is more than just a zero-sum game pitting the scope of individual liberty against state regulations aimed at protecting and enforcing equality. It refl ects more even than the general contraction of social space available for individual autonomy as a result of the expansion of the modern welfare state. Over the past half century, we have witnessed the rise of an equalitarian paradigm that shapes the mental landscape of thought about fundamental rights and has begun to eclipse an older liberty paradigm that underlies modern constitutionalism. Where Justice Holmes could quip that equal protection is the ‘last resort of constitutional arguments’, 1 a century later equality has become the cardinal constitutional value. 2 As a result, there is a deep concern that rights claims rooted in once axiomatic protections of religious liberty are being eroded and will lose their resonance and persuasive force, unless they can be recast in terms of equalitarian non-discrimination norms.
