Arguments for the Human Right to Religious Freedom
Arguments for the human right to religious freedom 1.
John Courtney Murray, S.J.
The following article is the closest that the later Murray came to a "purely natural law," philosophical argument. As mentioned in the general introduction, Murray began his 1945 philosophical argument with "essential definitions" of key terms that he though relevant to that debate—terms such as "conscience," "law," "state," and "God." Here he is defining the term "human dignity" that serves as the philosophical foundation for the right to religious freedom. In doing so, however, he is not delineating a timeless essence. Rather, he is making explicit a notion that, he contends, has emerged within Western societies. After the mid-1950s, natural law had become for Murray a developing tradition of ideas, commitments, and procedures that course through the social and political thought of a secular society that is continuously on the move.
In terms of the structure Murray established in "The Problem of Religious Freedom," this complex, secular notion of human dignity "converges" with the church's own, theologically-based judgments concerning the church's place in human history and its own freedom. That the secular society's and the church's judgments ought to converge is of course based in Murray's notion of Gelasian dualism (and concordia), as is his judgment that the church ought to affirm and defend human dignity as a social good. Since Murray is here simply trying to tone up Dignitatis's philosophical argument, the theological presuppositions of his earlier arguments recede into the background.
Here Murray strengthened his conciliar argument by adjusting the relative positions of the various principles that he had clarified in those conciliar discussions. The reader might especially note the positioning of the principle "as much freedom as possible" in this article, in contrast to its place in "Problem."
Yet a question remains: Is this what Western societies affirm when they proclaim commitments to human dignity? For Murray, the notion is intrinsically social and historical. It involves a view of the human person as constantly active within, and possessing responsibilities toward, the societies in which they live. Some criticisms of Western individualism do not find such a social notion of the human person at the heart of the Western experiment, while others find sociality there, but also a reticence to talk about those implied social commitments. Murray's understanding of human dignity also includes an intrinsic drive toward all that the human mind and heart can question, including the reality of God. Again, some criticisms of Western culture find at its core a constraining materialism. At the least, Murray's exposition perhaps can demonstrate that our alternatives are not simply between individualistic isolation and communitarian emersion, materialistic constriction and spiritualistic escapism. It might be possible to develop an understanding of the human person that preserves both the strong sense of personal integrity and worth of the individualist traditions, the social interdependence of more communitarian traditions, and a strong concern for material existence that is involved in commitments to social justice—Editor.
The Vatican Declaration " Dignitatis humanae personae " affirmed that the human person has a right to religious freedom. It showed that the concept of religious freedom is clear, distinct, and technically exact regarding both its ground and its object, and adequately developed concerning what it embraces. First I will reiterate what the council meant and what generally is meant by religious freedom. Then I will address the more difficult question of how to construct the argument—whether derived from reason or from revelation—that will give a solid foundation to what the Declaration affirms. For nearly four years the conciliar Fathers and experts vigorously debated this justification, eventually completing the brief argument found in the Declaration (n.2,3). Even so, it is fair to say that this argument has pleased or pleases no one in all respects.
We can legitimately debate how better to construct the argument. For the Council's teaching authority falls upon what it affirmed, not upon the reasons it adduced for its affirmation. The Council did not intend that the Declaration establish an apodictic proof. The Declaration was merely to outline certain arguments, mainly to demonstrate that the affirmation of religious freedom is doctrinal. 2 The church's affirmation is based upon arguments drawn both from human reason and from Christian sources. Please allow me, then, what you have allowed others: to discuss this whole matter briefly.
I. Civil Religious Freedom
To begin with, it will be useful carefully to delimit what we must argue. This will not be difficult if we keep in mind that the concept of religious freedom includes a two-fold immunity from coercion.
First, in the sphere of religion no one is to be compelled to act against his conscience. Nowadays this principle is one upon which all persons of judgement agree, unshakably. Enough, then, to recall that for us Christians this principle derives its strongest argument from the necessary freedom of the act of Christian faith, a doctrine licitly and necessarily extended to the profession of every religion.
Second, in the sphere of religion no one is to be impeded from acting according to his conscience—in public or in private, alone or in association with others. It is around this second immunity that the conciliar debate turned. This second immunity had long been a historical problem; it remains a theoretical or doctrinal problem. It will help to clarify the problem.
Discussion of the human right to religious freedom calls for further inquiry into the foundations of the juridical relationship among human beings in civil society. The concept of a juridical relationship properly includes the notion of a correspondence between rights and duties. To one person's right there is a corresponding duty incumbent on others to do or give or omit something. In our case, the human person demands by right the omission of all coercive action impeding a person or a community from acting according to its conscience in religious matters. Therefore, the affirmation that every person has a right to such immunity is simultaneously an affirmation that no other person or power in society has a right to use coercion. On the contrary all others are duty- bound to refrain from coercive action. The second immunity, then, requires a compelling argument that no other person can raise, as a right or duty, a valid claim against that immunity or, put positively, that all are obliged to respect that immunity. The whole matter hinges on this argument for the juridical actuality of the second immunity.
To clarify this point, let us suppose that there does exist in human society a power that possesses the right to prohibit religious practice. Such a power could only be the public power (the state). Certainly a right of this kind could not be possessed by any private person or intermediate social group. One could argue—indeed, many have so argued—that the public power does possess such a right because of its duty toward the good of society and because it has a monopoly on coercive power that it must exercise for the good of society either by means of legislation or of administrative action.
To establish, then, that the human person enjoys a right to full religious freedom, one must first establish that the public power has no right to restrict religious freedom but has rather the duty to acknowledge and protect it.
Such being the case, clearly our inquiry, although of its nature ethico-juridical, is nevertheless finally and formally political, or what is called constitutional. By this I mean that it deals with the duties and rights of the public power—their nature, their extent, and their limits.
The classic difficulty in this matter is well known. It begins in the human person's obligation to act intelligently, i.e., according to his conscience. Yet it sometimes can and often does happen that someone who acts according to his conscience can act contrary to the objective order of truth—for example, by practicing a form of public worship not wholly in agreement with the divine ordinance or by disseminating religious opinions not in conformity with divine revelation. Surely spreading religious errors or practicing false forms of worship is per se evil in the moral order. About this there is no doubt. But our inquiry is not about the moral but about the juridical order. Does the public power have the duty and the right to repress opinions, practices, religious rites because they are erroneous and dangerous to the common good?
The Vatican Council's Declaration denies that such duty and such right fall within the competence of the public power. Yet we still must ask: On what justifying argument does this denial rest? Why may the limitation placed on the public power in matters of religion be considered just and legitimate? Thus is the state of our question. I will now evaluate the various arguments that were put forward to confirm the person's right to freedom in religious matters.
II. Arguments for Religious Freedom
First we must note that the doctrine of the Declaration is today supported by the sense and near unanimous consent of the human race. This is also intimated at the very beginning of the Declaration. The Declaration also suggests that this consent does not rely upon the laicist ideology so widespread in the nineteenth century but upon the increasingly worldwide consciousness of the dignity of the human person. It relies, therefore, upon an objective truth manifested to the people of our time by their own consciousness. Before adducing other arguments, then, the presupposition obtains and prevails that the teaching of the Declaration is also true. Securus enim iudicat orbis terrarum . 3
From this it follows that the Council's sole purpose in adducing the argument in favor of the right to religious freedom is to clarify and strengthen under the light of both reason and Christian revelation the more of less confused contemporary consciousness of human dignity.
A: From Conscience
The first conciliar attempt to do so was laid out in the arguments of the first and second schemata. 4 The basis of that argument was the moral principle that in religious matters man in held bound to follow his conscience even if erroneous. From this moral principle the schema deduced, as if immediately, the moral-juridical principle that to man is due the right to be free in society to follow his conscience.
This moral argument if correctly expounded has its force. But ultimately it is defective because unable to demonstrate what, in line with our statements above, has to be demonstrated.
The moral principle is entirely valid that man is duty-bound always to follow his conscience. From this follows the moral-juridical principle that man has the right to fulfill his duty. No difficulty arises if the conscience in question is right and true. This is evident. But if the conscience in question is right but erroneous, it cannot give rise to a juridical relationship between persons. From one human being's erroneous conscience no duty follows for others to act or perform or omit anything. Some might insist that the first two schemata additionally presuppose that the public power lacks any right to prevent human beings in society from acting according to erroneous consciences. Perhaps it does, even though this is not immediately apparent from the text. Even so, the schemata's argument failed to demonstrate why the public power lacks this right.
This being the case, the argument fails to support that immunity upon which our whole inquiry hinges. Hence it is not surprising that the Council's third schema—entitled "corrected text"— abandoned this line of argument that would ground the right to religious freedom in the dictates of conscience. From the third schema down to the promulgation of the Declaration, the foundation for the right to religious freedom is placed in the dignity of the human person. Rightly and wisely.
I shall leave aside the justifying arguments found in the subsequent schemata and come at once to the final, definitive text. The text sets forth two main arguments and, to give completeness to the doctrine, a third additional argument based upon the faith. 5
B. From the Obligation to Search After the Truth
In keeping with the wishes of many council Fathers, the first argument attempts ontologically to ground religious freedom in the fact that all men "are impelled by their nature and are bound besides by a moral obligation to seek the truth, especially truth regarding religion. They are also bound, once they have learned the truth, to adhere to it and to regulate their whole lives according to its demands" (no.2). From this moral obligation the argument next deduces the human right to immunity from external coercion in fulfilling his obligations. The further assertion is made that "the exercise (of this right) cannot be impeded if the just public order is preserved."
Obviously this argument aims to vindicate the whole concept of religious freedom insofar as it imports the double immunity from coercion. What are we to think of this argument?
The argument is valid and on target. Undeniably the demand for freedom has its basis in man's intellectual nature, in the human capacity to seek, to embrace, and to manifest by his way of life the truth to which he is ordered. In no other way can he perform his duty toward truth than by his personal assent and free deliberation. What is more, from this single consideration it is already clear that no one is to be forced to act against his conscience or against the demands of the truth that he has in fact found, or at least thinks that he has found. If so forced, he would be acting against his intellectual nature itself.
Yet we may still ask whether this demand for freedom, which flows from the source just mentioned, has enough power to establish a true right in keeping with which no one is to be impeded from acting according to his conscience in religious matters. Put differently: Are man's natural and moral links to truth powerful enough to engender a political relationship between the human person and the public power so that the latter is duty-bound not to prevent the person from acting according to his conscience—whether the person acts alone or in association with others? It seems not.
Man is certainly impelled by his nature, and is obliged morally, to seek the truth so that he might conform his life to the truth, once found. Yet quite a few, either after searching for religious truth or not searching for it, actually cling to more or less false opinions that they wish to put into practice publicly and to disseminate in society. To highlight again the point upon which our investigation hinges, let us imagine public powers speaking to these erring people as follows:
"We acknowledge and deeply respect the impulse to seek truth implanted in human nature. We acknowledge, too, your moral obligation to conform your life to truth's demands. But, sorry to say, we judge you to be in error. For in the sphere of religion we possess objective truth. More than that, in this society we represent the common good as well as religious truth—in fact religious truth is an integral part of the common good. In your private and in your family life, therefore, you may lawfully act according to your errors. However, we acknowledge no duty on our part to refrain from coercion in your regard when in the public life of society, which is our concern, you set about introducing your false forms of worship or spreading your errors. Continue, then, your search for truth until you find it—we possess it—so that you may be able to act in public in keeping with it."
Is this proclamation imaginary? Hardly! Time and again over the centuries public powers have issued similar statements. And what answer can the poor people make who are thus judged to be living in error? None, certainly, if we stay within the principles laid down in the Declaration's first argument. For we can grant the premiss of those principles: that those in error have an obligation to seek the truth in order to learn it and act in keeping with it. But we deny that from those principles the conclusion follows that those in error have the right not to be impeded from acting in public according to their consciences. It seems correct to deny this conclusion, since it appears to extend beyond its premisses.
Assuredly those judged to be misguided would like to object that the public power has no right to issue judgements about objective truth in the religious sphere, that even less has it the right to transform those judgements into coercive legislation, thereby preventing its citizens from acting according to their consciences. This is as valid an objection as can be. But I ask: Does its validity proceed from the ontological basis of religious freedom as the Declaration claims and conceives that it does? It seems not.
For it may be said, and some at times have so claimed, that the right of civil power to repress false forms of worship or religious errors is compatible with man's moral obligation to seek the truth in order to act according to it. For such repression does not in the least prevent the quest for truth, nor does it prevent acting according to the truth. What it does prevent are public activities that proceed from a basis in error and that thus cause harm to the public good. This opinion is not to be scorned. It has even been widely received at times within the Church itself.
Admittedly it was mainly pastoral considerations that led the Fathers to accept this first argument in the Declaration, the argument that situates the ontological roots of religious freedom in the obligation to seek the truth. Some Fathers feared the establishment of a kind of separation between truth and freedom, or more exactly, a separation between the order of truth and the juridical order that equips man with right against others. Of course this was an entirely legitimate concern. Still, the speculative question remains: Is it correct to place the ontological ground for religious freedom in man's natural and moral relationships to truth? On this point doubt may be allowed.
C. From the Person's Social Nature
The same pastoral uneasiness apparently controls the second major argument in the Declaration. This argument begins with the divine law to which every human being is subject and in which his nature makes him a participant. From this premise the argument at once concludes to man's moral obligation to investigate what the precepts of the divine law might be. The point is made that this investigation ought to be conducted in a social manner. The argument then lays down another moral principle—that man perceives the dictates of the divine law through the mediation of his conscience, which he is therefore always bound to follow. After positing these moral principles, the argument proceeds to a conclusion that is juridical: that not surprisingly man has a right to the two immunities that form the object of the right to religious freedom.
I acknowledge the value of this argument, provided the following distinction is made that always must be made. Indisputably the argument validly shows that no one is to be forced to act against his conscience, for by so acting a person would be doing wrong. But the second question recurs. Does it follow from this argument that no one is to be prevented from acting in public according to his conscience? To establish immunity from this kind of coercion—and this is specific to religious freedom in its modern meaning—the argument appeals to the necessary connection between internal acts of religion and those outward acts by which, in keeping with his social nature, a human being displays his religious convictions in a public way. Given this connection, the argument runs as follows: A purely human power cannot forbid internal acts; it is therefore equally powerless to forbid external acts.
But does not the fallacy of begging the question somehow lurk in this argument? It supposes that in society no power exists with authority reaching far enough to warrant its legitimately forbidding public acts of religion, even acts that transgress objective truth or divine law or even the common good. This must be established; it is the very heart of the matter under discussion. It is not proved by stating that persons are morally obliged to obey divine law as known by them through the mediation of their consciences. Nor is it proved by stating that human nature is social and requires that people profess their religion in a public and communitarian manner.
D. From the Limits of Public Power
Finally, there remains the third argument of the Declaration. It does concern the limits of the public power. This argument is introduced with the word Praeterea ["Furthermore"]. This suggests that the argument is added as a complement to the argument so far presented, a complement to an argument that is presumed in itself sufficient to justify the human right to religious freedom in its double sense.
But if the state of the question about this human right is examined thoroughly, it is at once evident that this political argument is of primary importance. Without it any other argument would not sufficiently settle the question. For the very question concerns the limits of public power in religious matters.
The Declaration makes the felicitous assertion that public power "must be said to exceed its limits if it should presume to direct or to impede religious acts" (n.3). Felicitous, I repeat, and altogether true. But it is a simple assertion for whose truth no reasons are brought forward. May I be permitted, as long as time allows, to develop this political argument. I proceed in outline form, schematically, by enumerating the principles without further development. The intention of the argument I offer is the same as that prefixed to the Declaration: "to develop the teaching of recent Popes about the inviolable rights of the human person and about the juridical ordering of society" (n.1).
The argument begins properly from a first principle: Every human person is endowed with a dignity that surpasses the rest of creatures because the human person is independent [in charge of himself, autonomous]. The primordial demand of that dignity, then, is that man acts by his own counsel and purpose, using and enjoying his freedom, moved, not by external coercion, but internally by the risk of his whole existence. In a word, human dignity consists formally in the person's responsibility for himself and, what is more, for his world. So great is his dignity that not even God can take it away—by taking upon Himself or unto Himself the responsibility for his life and for his fate. This in the Christian tradition, especially from the Greek Fathers on, is the dignity of the person conceived, fashioned in the image of God. The person's intellectual nature is a prior condition, the absence of which would render his assumption of responsibility impossible. Formally, however, human dignity consists in bearing this responsibility.
Now, from the first, ontological principle (the dignity or the human person), there follows a second principle, the social principle, which Pope Pius XII and later John XXIII began to develop somewhat fully. The social principle states that the human person is the subject, foundation, and end of the entire social life. 6
For our purpose, the chief force of the social principle lies in its establishing an indissoluble connection between the moral and the juridical orders. This connection must not be conceived in some abstract manner but in a wholly concrete way. For the connection is the human person itself, really existing, in the presence of its God and Lord, in association with others in this historic world, but in such wise that it transcends by reason of its end both society and the whole world. The human person exists in God's presence as a moral subject bound by duties toward the moral order and toward the historical order of salvation established by Jesus Christ. The human person exists with others in society as a moral-juridical subject furnished with rights that flow directly and altogether from human nature, never to be alienated from that nature. The juridical order cannot be sundered from the moral order, any more than the human person can be halved.
Evidently, in this subordinate place we can and ought to collect and situate those things that the Declaration said so beautifully about the natural human impulse to seek truth and about the person's moral obligation to live according to the truth once found. They do illustrate the first ontological principle and the second social principle. 7
Now, from the first and the second principles, the ontological and the social, taken together, there follows a third principle, the so-called principle of the free society. This principle affirms that man in society must be accorded as much freedom as possible, and that that freedom is not to be restricted unless and insofar as is necessary. By necessary I mean the restraint needed to preserve society's very existence or—to use the concept and terms of the Declaration itself—necessary for preserving the public order in its juridical, political, and moral aspects
Parallel with the third principle, a fourth issues from taking the first two, the ontological and the social, together. This principle is juridical and maintains that all citizens enjoy juridical equality in society. 8 This principle rests upon the truth that all persons are peers in natural dignity and that every human being is equally the subject, foundation, and end of human society.
Finally, there follows a fifth principle, the political principle. It is admirably expressed in the following words of Pius XII, later quoted by John XXIII. "To protect the inviolable rights proper to human beings and to ensure that everyone may discharge his duties with greater facility—this is the paramount duty of every public power." 9 This constitutes for the public power its first and principal concern for the common good—the effective protection of the human person and its dignity. This definition of the paramount function of public power rests clearly upon the first four principles.
Further, all five principles cohere with one another in such a way that they form a kind of vision of the human person in society and of society itself, of the juridical ordering of society and of the common good considered in its most fundamental dimensions, and finally of the duties of the public power toward persons and society. Upon this vision, which recent pontiffs have newly elaborated while working within the tradition, rests the whole doctrine of the Vatican Declaration on Religious Freedom. In other words, the five principles just enumerated taken together finally bring our whole investigation to a point of decision. For they are sufficient to constitute that relationship between the human person and the public juridical power. Together they fully characterize the notion of religious freedom.
They are also sufficient to confirm the other human and civil freedoms with which John XXIII dealt in an eminent manner in his Encyclical Pacem in Terris . Along with these freedoms religious freedom constitutes an order of freedoms in society. Religious freedom cannot be discussed apart from discussion of this whole body of freedoms. All human freedoms stand or fall together—a fact that secular experience has made clear enough.
This said, it is not difficult to construct an argument for the human right to religious freedom.
III. A needed Argument
The first thing to note is that the dignity and the freedom of the human person should receive primary attention since they pertain to the goods that are proper to the human spirit. As for these goods, the first of which is the good of religion, the most important and urgent demand is for freedom. For human dignity demands that in making this fundamental religious option and in carrying it out through every type of religious action, whether private or public, in all these aspects a person should act by his own deliberation and purpose, enjoying immunity from all external coercion so that in the presence of God he takes responsibility on himself alone for his religious decisions and acts. This demand of both freedom and responsibility is the ultimate ontological ground of religious freedom as it is likewise the ground of the other human freedoms.
Now, this demand is grounded upon the very existence of the human person, or, if one prefers, in the objective truth about the human person. Therefore it is revealed as a juridical value in society, so that it can impose upon the public power the duty to refrain from keeping the human person from acting in religious matters according to his dignity. For the public power is bound to acknowledge and to fulfill this duty by reason of its principal function, the protection of the dignity of the person. Once this duty is demonstrated and acknowledged, the immunity from coercion in religious matters demanded by human dignity becomes actually the object of a right. For the juridical actuality of a right is established wherever a corresponding duty is established and is acknowledged, once the validity of the ground for a right is assured and recognized.
Furthermore, the above mentioned principle of a free society—taken together with the principle of the juridical equality of all citizens—likewise sets the outer limits on just how far the public power must refrain from preventing someone from acting according to his conscience. The free exercise of religion in society ought not be restricted save insofar as it is necessary, that is, save when a public act ceases to be an exercise of religion because proven to be a crime against public order.
The following considerations will clarify this. The foundation of human society lies in the truth about the human person, or in its dignity, that is, in its demand for responsible freedom. That which in justice is preeminently owed to the person is freedom—as much freedom as possible—in order that society thus may be born toward its goals, which are those of the human person itself, by the strength and energies of persons in society bound together with one another by love. Truth and justice, therefore, and love itself demand that the practice of freedom in society be kept vigorous, especially with respect to the goods belonging to the human spirit and so much the more with respect to religion. Now this demand for freedom, following as it does from the objective truth of the person in society and from justice itself, naturally engenders the juridical relationship between the person and the public power. The public power is duty-bound to acknowledge the truth about the person, to protect and advance the person, and to render the justice owed the person.
Again, from this follows the conclusion that no one is to be prevented in the matter of religion from acting according to the demands of his dignity or according to his inmost religious convictions. Nor does this immunity cease except where just demands of public order are proven to have the urgency of a higher force.
Quod erat demonstandum. Or rather, this argument from the five principles mentioned is sufficient; nothing else is required.
IV. The Question of a Theological Argument
Of course there remains the argument for religious freedom as drawn from Christian revelation, but this is a lengthy question and my discussion has already been too long.
Suffice it to say that the line of argument that the Declaration follows is entirely valid and sound. It embraces three major statements. (1) The human person's right to religious freedom cannot itself be proven from Holy Scripture, nor from Christian revelation. (2) Yet the foundation of this right, the dignity of the human person, has ampler and more brilliant confirmation in Holy Scripture than can be drawn from human reason alone. (3) By a long historical evolution society has finally reached the notion of religious freedom as a human right. And a foundation and moving force of this ethical and political development has been Christian doctrine itself—I use "Christian" in its proper sense—on the subject of human dignity, doctrine illuminated by the example of the Lord Jesus.
Difficult and important questions remain. The primary one concerns the relationship between the Christian freedom proclaimed in Holy Scripture, especially by St. Paul, and the religious freedom we have been speaking of, to which our contemporaries lay claim. 10 On this question no consensus exists. According to some, these two freedoms are so different from their inception that only a limited harmony can exist between them. According to others, of whom I am one, in the very notion of Christian and gospel freedom—or, better—in free Christian existence itself—a demand is given for religious freedom in society. To demonstrate this is no mean task. Add to this the difficult historical question, as yet not investigated: Why has humanity had to travel so long a journey on so tortuous a course to reach at last a consciousness of its dignity and to bring to fulfillment in civil society all that that dignity demands?
Evidently these question belong to the ecumenical order. Equally evident and pressing is the need for us to enter into conversation with our separated brothers and even with our non-believing brothers. These have contributed much and still contribute toward the establishment and preservation in society of the full practice of freedom, including also religious freedom.
( 1 )This was delivered as a talk on September 19, 1966 and published in Latin as "De argumentis pro iure hominis ad libertatem religiosam." In Acta Congressus Internationalis de Theologia Concilii Vaticani II , edited by A. Schoenmetzer, 562-73. Rom, Vatikan, 1968.
( 2 )i.e., that it is not simply based in expediency—Ed.
( 3 )"The whole world concurs in this judgement," probably an allusion to Augustine, Contra ep. Parm., II, 10, 20. Parts of this argument find a parallel in 1966b: "The Declaration on Religious Freedom." In Vatican II: An Interfaith Appraisal , edited by John H. Miller, article, pp. 565-76, and discussion, pp. 577-85 (Notre Dame: Association Press, 1966). Certain points, such as the international political and ecclesiological support given to religious freedom, are more fully spelled out in that latter article—Ed.
( 4 )For a discussion of the various texts that preceded Dignitatis, the introduction to "The Problem" in this volume. By Murray's count there were five such texts, the third and fourth were of Murray's creation—Ed.
( 5 )The remainder of the article presents actually three philosophical arguments and a fourth based on faith. As we will see, Murray was unhappy with the first two "main arguments." (They both suggest an individualism (that often cloaks itself in abstraction) and an a-historicity that he found in the "conscience" argument.) He will here present a third argument that he considers core to the church's affirmation and to contemporary affirmations of human dignity. This third line had been primary in the third and fourth drafts of the Declaration (the ones Murray wrote), and had been reduced to an ancillary position in subsequent drafts and in the final document.
Since Murray's own numbering is off, I felt free, by way of headings, to grant to the "conscience" argument the status of first in a line of arguments. In fact, the language of the "rights of conscience" argument was not limited to the first two drafts. There remains some residual "rights of conscience" terminology in the Declaration, a fact used by some who want to argue that the Council did not advance beyond the "conscience" argument—Ed.
( 6 )Cf. Pius XII, Nunt. radioph. 24 dec. 1944, in: A.A.S. 37 (1945) p. 12; Ioannes XXIII Litt. enc. " Pacem in terris , in A.A.S. 55 (1963) p. 263; Dz.-S 3968.
( 7 )By situating the drive for truth within the second, social pole of the human person, Murray apparently thinks that he has escaped the individualism and abstraction of the Declaration's main argument. Within that second pole, the argument must take account of the structures and forces that are active within historical societies as well as of the transcendental openness of the human person.—Ed.
( 8 )Just as the first two principles call up the individual/social aspects of human nature, similarly for Murray these third and fourth principles have individual/social references. The third points to the creative powers of persons and subgroups in society, while the fourth focuses on the largest social reality, the state. Murray has attempted to highlight the intrinsic social aspects of the human person throughout the various levels of this argument—Ed.
( 9 )Pius XII, Nunt. radioph . 1 iun. 1941, in: A.A.S. 33 (1941)p. 200; Ioannes XXIII "Pacem in terris." ed. cit., p. 274; Dz-S 3985.
( 10 )Elsewhere Murray spelled out a broader list of freedoms that must be reconciled:
The Declaration therefore does not undertake to present a full and complete theology of freedom. This would have been a far more ambitious task. It would have been necessary, I think, to develop four major themes: (1) the concept of Christian freedom—the freedom of the People of God—as a participation in the freedom of the Holy Spirit, the principal agent in the history of salvation, by whom the children of God are "led" (Rom. 8, 14) to the Father through the incarnate Son; (2) the concept of the freedom of the Church in her ministry, as a participation in the freedom of Christ himself, to whom all authority in heaven and on earth was given and who is present in his Church to the end of time (cf. Matt. 28, 18. 20); (3) the concept of Christian faith as man's free response to the divine call issued, on the Father's eternal and gracious initiative, through Christ, and heard by man in his heart where the Spirit speaks what he has himself heard (cf. John 16, 13-15); (4) the juridical concept of religious freedom as a human and civil right, founded on the native dignity of the human person who is made in the image of God and therefore enjoys, as his birthright, a participation in the freedom of God himself.
This would have been, I think, a far more satisfactory method of procedure, from the theological point of view. In particular, it would have been in conformity with the disposition of theologians today to view issues of natural law within the concrete context of the present historico-existential order of grace. Moreover, the doctrine presented would have been much richer in content (1966c: "The Declaration on Religious Freedom," p. 4)—Ed.
REVIEW CONTENTS
Why protect religious freedom.
Why Tolerate Religion?
BY BRIAN LEITER
PRINCETON, NJ: PRINCETON UNIVERSITY PRESS, 2012, PP. 208. $24.95.
author . Richard and Frances Mallery Professor and Director of the Constitutional Law Center, Stanford Law School; Senior Fellow, Hoover Institution. The author wishes to thank William Baude, Nathan Chapman, Richard Epstein, Chad Flanders, Robert George, Luke Goodrich, Paul Harold, Joshua Hawley, Steffen Johnson, Burt Neuborne, Eric Rassbach, James Sonne, and Eugene Volokh for helpful comments on an earlier draft, and Spencer Churchill and Mark Storslee for invaluable research assistance.
Introduction
Religious beliefs have always generated controversy. But religious freedom —the right of individuals and groups to form their own religious beliefs and to practice them to the extent consistent with the rights of others and with fundamental requirements of public order and the common good—has long been a bedrock value in the United States and other liberal nations. Religious freedom is one thing nearly all Americans, left and right, religious and secular, have been able to agree upon, perhaps because it protects all of us. 1 Atheists are protected from imposition of prayer and Bible reading in state schools; 2 churches are protected from interference with the hiring of ministers; 3 religious minorities are protected from majoritarian legislation indifferent or hostile to their concerns. 4 Progressive churches are protected when they oppose segregation or counsel draft resisters; 5 traditionalist churches are protected when they oppose abortion or operate faith-based schools; 6 nontraditional faith groups with unfamiliar worship practices are allowed to carry them out in peace. 7 Because none of us can predict who will hold political power, all of us can sleep more soundly if we know that our religious freedom does not depend on election returns.
When the Supreme Court narrowed its interpretation of the Free Exercise Clause in 1990, in the so-called “ P eyote Case ,” Employment Division v. Smith , 8 Congress passed the corrective Religious Freedom Restoration Act (RFRA) 9 by unanimous vote in the House and a margin of 97-3 in the Senate. 10 Supporters included the ACLU, the National Association of Evangelicals, People for the American Way, the American Jewish Congress, the Christian Legal Society, and virtually every other religious and civil liberties group. 11 Recently, however, this consensus seems to be weakening—largely from fallout over culture-war issues such as abortion and the legal recognition of same-sex relationships. Many activists on these issues see religion as antagonistic to their interests, and are responding in kind. A new whiff of intolerance is in the air. 12
University of Chicago law professor and legal philosopher Brian Leiter has entered the debate with his new book Why Tolerate Religion? 13 His answer? Although we should not persecute religious believers, religion as such does not warrant any “special” legal solicitude such as that provided by the Religion Clauses of the First Amendment. 14 “[T]here is no apparent moral reason why states should carve out special protections that encourage individuals to structure their lives around categorical demands that are insulated from the standards of evidence and reasoning we everywhere else expect to constitute constraints on judgment and action.” 15 Leiter argues, moreover, that it would be consistent with “principled toleration” for the secular state to affirmatively discriminate against religious believers in access to public spaces, such as by barring student Bible clubs from meeting on public school property, even when every other form of student organization is free to meet. 16 So long as religious believers retain the right to express their own beliefs (including wearing religious symbols and clothing), the regime may advocate a “Vision of the Good” that is “irreligious” 17 and may selectively deny religious believers and religious speakers equal access to public resources and opportunities.
When it comes to accommodation of practices , and not just beliefs, Leiter argues that it would be impractical to accommodate all claims of conscience and “unfair” and “arbitrar[y]” to single out claims that are grounded in religious belief. 18 So his answer: accommodate none of them, at least if the accommodation would inflict harm or shift burdens onto third parties. Exactly what is meant by these assertions, as we shall see, is less than clear. The argument depends on terms like “conscience,” “special,” and “harm,” but the book provides no precise definition of their meanings. The author is vague about what to do when accommodations do not cause harm and when religious practices have no secular analogue.
Organizationally, the book weds four chapters of ambitious and wide-ranging philosophical arguments to a fifth and final chapter primarily addressing two controversial issues of First Amendment law: whether religious practices are entitled to exemptions from formally neutral laws (to which Leiter answers “no”), and whether groups may be excluded from otherwise open public school speech forums because they espouse a religious point of view (to which he answers “yes”).
The first major argument of the book—spread between Chapters One and Four—is that discussions of religious freedom ought to be framed around the concept of “toleration.” By “toleration,” Leiter means protection from coercion (or “eradication”) but something less than neutrality. To be specific, the state may not “jail or annihilate the adherents of the disfavored claims of conscience,” nor may it “directly target or coercively burden their claims of conscience” (absent real harm), 19 but it may use public resources and publicly controlled institutions to espouse the state’s own contrary “religious or irreligious” Vision of the Good 20 and may exclude dissenters from equal access to public facilities. 21 The second philosophical argument—Chapters Two and Three of the book—presents a definition of religion and discusses several prominent justifications for toleration, concluding that none of these theories can justify a special protection for the free exercise of religion, beyond that accorded conduct based on nonreligious beliefs. 22 In these chapters, Leiter’s argument consists of two steps. First, he offers a definition of religion as “categorical demands that are insulated from evidence” 23 —meaning that religion is a phenomenon characterized by insulation from “common sense and the sciences.” 24 Second, he examines several prominent justifications for toleration offered by John Rawls, John Stuart Mill, and Frederick Schauer, and in each case concludes that nothing in these justifications warrants tolerating religion specifically.
More surprisingly, in Chapter Five Leiter concludes that this spare doctrine of “principled toleration” also does not justify any special protection against the establishment of religion. As far as “principled toleration” goes, it would be unobjectionable to declare the Roman Catholic Church the established church of the nation, and favor it over all other ideological competitors—so long as dissenting voices are not coercively burdened or silenced. It becomes clear that Leiter’s objection is not to one particular theory of free exercise protections (free exercise exemptions), but to the entire idea of special protection for religious freedom.
At a few extraordinary moments in the book, it appears that the author might even opt for intolerance toward religion—use of the coercive power of the state to discourage or even “eradicate” religious belief, 25 on the ground that religious beliefs do real harm to the body politic. Each time, after floating the argument for intolerance, usually in the form of rhetorical questions rather than straightforward claims, he retreats. But each time the retreat is based on the lack of sufficient empirical support for the net harmfulness of religion—not because of the importance of religious freedom to the individual or to liberal democracy. At page 59, for example, he poses the question: “isn’t there reason to worry that religious beliefs, as against other matters of conscience, are far more likely to cause harms and infringe on liberty?,” 26 observing that this might “form the basis of an argument for why there are special reasons not to tolerate religion.” 27 He follows this suggestion with the tentative disavowal that “I wonder” whether “such a demeaning conclusion about religious belief . . . is warranted,” 28 leaving the reader to suspect that his support for toleration hangs on the thread of empirical uncertainty.
And consider this paragraph:
[R]eligious believers overwhelmingly supported George W. Bush, widely considered one of the worst presidents in the history of the United States, whom many think ought to be held morally culpable both for the illegal war of aggression against Iraq as well as the casualties resulting from domestic mismanagement. Of course, if we really thought there were some connection between religious belief and support for the likes of Bush, then even toleration would not be a reasonable moral attitude to adopt toward religion: after all, practices of toleration are, themselves, answerable to the Millian Harm Principle, and there would be no reason ex ante to think that Bush’s human carnage is something one should tolerate. 29
If I understand this passage correctly, Leiter is flirting with the idea that it would be justifiable to withhold toleration from religious believers because they have a propensity to support political candidates of whom he disapproves. If that is his notion of “Millian Harm,” sufficient to justify official intolerance toward American religious believers, we are very far from anything recognizable as liberalism or democracy.
Ultimately, Leiter concludes that this “Bush carnage” argument for intolerance is “not warranted,” but not because of any principled commitment to democracy or respect for differing opinion. It is unwarranted because “there is no reason to think” that religious beliefs “are especially likely to issue in ‘harm’ to others.” 30 Religion has done good as well as evil, he notes, 31 and not all evil is caused by religion. 32 Nonetheless, he finds it to be a close question. “Perhaps [religious] beliefs . . . are more harmful, on average, but it seems to me much more empirical evidence would actually be required to support that conclusion.” 33 One wishes that the argument for toleration were more robust than that.
Aside from these disquieting passages, the argument of the book rests not on the claim that religious belief is specially harmful, but on the more conventional claim that religion is nothing special. 34 Let us turn to those arguments.
I. “toleration”
The title of the book, Why Tolerate Religion? , at first blush sounds anachronistic. The value of religious toleration has not been seriously contested in the Anglo-American world since the seventeenth century. Strictly speaking, the “toleration” issue arose in the context of an established church; the question was whether practitioners of dissenting religions should be permitted to exercise their faiths without penalty. Britain’s celebrated Act of Toleration of 1689, for example, allowed certain sects—dissenting trinitarian Protestants, but not Jews, Roman Catholics, or Unitarians—to conduct worship services without being punished for violation of the Uniformity Acts. 35
By the time of the American founding, prevailing opinion had moved beyond toleration. When George Mason proposed in 1776 that the Virginia Declaration of Rights provide for “toleration” of religion, James Madison objected on the ground that “toleration” implies an act of legislative grace. He successfully moved to substitute the term “the full and free exercise of [religion.]” 36 In a similar vein, George Washington wrote to the Hebrew Congregation of Newport, Rhode Island that “[i]t is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.” 37 It is not an accident that the United States Constitution contains a Free Exercise Clause, not a toleration clause.
But Leiter is not using the word carelessly or anachronistically. He makes clear that by “toleration” he means pretty much what Madison and Washington understood the term to mean—forbearance—with only a slight twist: that the state that today is considering whether to permit the practice of religion is the modern secular state. “[A] genuine ‘principle of toleration,’” Leiter writes, exists only when there is a “dominant group” that “actively disapproves of what another group . . . believes or does.” 38 Under his definition of toleration, “one group must deem another differing group’s beliefs or practices ‘wrong, mistaken, or undesirable’ and yet ‘put up’ with them nonetheless.” 39 Leiter candidly “reject[s] the view” that “the right posture for the modern state is one of neutrality” toward religion. Rather, the posture of the modern secular state toward religion should be one of “disapproval” 40 —the only question being whether that disapproval should be tempered with toleration. 41
To Leiter, the “contemporary problem, at least in post-Enlightenment, secular nations,” is “why the state should tolerate religion as such at all.” 42 Just as the seventeenth-century state, committed to an established church, had to decide whether to tolerate persons of dissenting faiths, the twenty-first-century state, committed to a particular form of secularism, has to decide whether to tolerate religious believers at all. Some might say, following the seventeenth-century philosopher John Locke, that it is futile to attempt to use force to compel belief (or unbelief), because convictions do not yield to external compulsion. 43 But Leiter—probably correctly—points out that the modern state in fact has “sophisticated means to effectively coerce belief.” 44 The proper question, therefore, is why “we”—meaning the secular state—“morally, ought not to eradicate differing beliefs and practices,” given that we could. 45
Leiter claims that “toleration,” understood as putting up with beliefs that the dominant group disapproves of, is “reflected” in the First Amendment of the United States Constitution, and is the “paradigm of the liberal ideal.” 46 But this is incorrect: under the United States Constitution, the state does not deem religious belief “wrong, mistaken, or undesirable.” 47 On the contrary, our liberal republic takes no stand on the truth or worth of any religious belief as such. 48 One of the most widely admired opinions of the Supreme Court states that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in . . . religion, or other matters of opinion.” 49 That proscription of official orthodoxy applies to Leiter’s unbelief no less than it does to a conventionally religious establishment. It is no more proper for the state to assume religion is false or unwarranted than to assume that it is true. As James Madison put it, “[t]he Religion . . . of every man must be left to the conviction and conscience of every man,” and it is an “arrogant pretension” to believe that “the Civil Magistrate is a competent Judge of Religious Truth.” 50 Indeed, many statesmen at the time of the Founding believed that religious faith was valuable or even essential to republican self-government. 51 I am not aware of any statement by a constitutional founder, any decision of the Supreme Court, or any important document in our constitutional tradition that espouses Leiter’s version of toleration: that religion is wrong, mistaken, or undesirable, but we should nonetheless “put up” with it.
Leiter acknowledges there is a competing view to his idea that mere toleration ought to characterize our attitude toward religion. Chapter Four of the book is devoted to explaining why he rejects Professor Martha Nussbaum’s argument that free exercise exemptions are justified by “respect” for the religious beliefs of others, even if we do not share them. 52 While the author states elsewhere that his concern is “ state toleration” of religion, “as opposed to toleration in interpersonal relations,” 53 much of the chapter is propelled by examples of interpersonal relations. The primary argument—spanning seven pages of the twenty-three page chapter—revolves around whether an atheist invited to shabbat dinner should participate in Jewish prayers offered by his host. 54 The problem, you see, is that the guest believes that religion is an “(epistemically) culpable false belief,” and therefore is reluctant to show the “respect” to his hosts’ beliefs that participation in the prayers would express. 55 That is all well and good. Maybe a guest with those views should politely excuse himself. But what could this possibly have to do with “ state toleration”? Leiter argues by way of analogy that because religious beliefs are false or unwarranted, they are “not the kind of belief system that could warrant [affirmative respect],” 56 and thus that the state—like the dinner guest—ought rightly to grant religion only toleration. But the state is not in the same position as the guest. The guest, like his host, enjoys full religious freedom to form his beliefs and to act on them. The question he faces is primarily one of etiquette . The state, by contrast, does not hold an official position on whether the Jewish religion, or any other, is false—“culpably” or otherwise. The dichotomy between “tolerating” and “respecting” religion based on individual judgments about religion’s truth or falsity is a red herring when it comes to questions of governance. Constitutional law is not about good manners or respect, but about law, power, coercion, and freedom.
The difference between moral demands on individuals and institutional constraints on the liberal state is fundamental. In the liberal tradition, the government’s role is not to make theological judgments but to protect the right of the people to pursue their own understanding of the truth, within the limits of the common good. That is the difference between “the full and free exercise of religion” 57 (Madison’s formulation) and mere “toleration.” Toleration presupposes a “dominant group” 58 with a particular opinion about religion (that it is “false,” or at least “unwarranted”), 59 who decide not to “eradicate” 60 beliefs they regard as “wrong, mistaken, or undesirable.” 61
By contrast to Leiter’s “toleration,” religious freedom does not proceed from any official presuppositions about religious truth. It allows everyone, believers and unbelievers alike, the right to form their own convictions about transcendent reality and to live in accordance with them, subject only to the constraint that they must not invade the rights of others or damage fundamental aspects of the overall common good. That is a more attractive vision than Leiter’s, and it is far more consonant with our constitutional principles (even if not always with our practices).
II. the philosophical argument
Leiter’s philosophical argument can be stated in three steps:
1. Religion is a subset of the broader category, “conscience.”
2. What sets religion apart as a distinctive subset of conscience is that religious beliefs “are insulated from ordinary standards of evidence and rational justification,” yet lead to “categorical demands on action” (meaning demands that take precedence over competing desires and interests). 62
3. Employing this definition, neither of the two major strands of modern thought, Kantianism (represented by John Rawls) and utilitarianism (represented by John Stuart Mill), supports an argument for special protection for religion. Nor is it supported by Frederick Schauer’s argument from government incompetence.
The argument, however, is not persuasive, for two reasons. First, it depends entirely on the pejorative way in which Leiter defines religion, and second, it falls short in its understanding of Rawls, Mill, and Schauer.
A. Religion as a Subset of Conscience
The central argument in the book is that “if there is something morally important about religious belief and practice that demands legal solicitude, it is connected to the demands of conscience that religion imposes upon believers,” rather than the distinctively religious or “sacred” character of those beliefs. 63 The book is an inquiry into whether there is any reason to single out religious conscience for legal protections that are not also extended to nonreligious claims of conscience.
It would therefore seem essential to unpack what is meant by claims of “conscience” as well as what is meant by “religion.” But while the book devotes an entire chapter to a formal definition of “religion,” it provides no definition of “conscience.” I believe, however, that it would be fair to borrow the first portion of Leiter’s definition of “religion” as a definition of “conscience”: a belief system that imposes “categorical demands on action—that is, demands that must be satisfied no matter what an individual’s antecedent desires and no matter what incentives or disincentives the world offers up.” 64 Leiter comments that the “categoricity” of commands is a “significant feature” not only of religion, but “of all claims of conscience,” 65 and that seems right. In less jargony language, we may translate this “categoricity” as referring to the demands of right and wrong, as opposed to self-interest, whim, habit, or compulsion. 66 The important point is that the demands of right and wrong may arise from nonreligious as well as religious systems of belief—although, as Leiter points out, “religion is one of the few systems of belief that gives effect to this categoricity.” According to Leiter, “those who genuinely conduct their lives in accord with the categoricity of the moral demands they recognize are overwhelmingly religious.” 67
Leiter defines religion by four criteria, only two of which he says “matter” for the purpose of evaluating the claim for tolerating religion as such. 68 The first is “categoricity,” as just discussed. The second is that religious beliefs, “in virtue of being based on ‘faith,’ are insulated from ordinary standards of evidence and rational justification, the ones we employ in both common sense and in science.” 69 The combination of these two criteria becomes his catch phrase for religion: “categorical demands on action conjoined with insulation from evidence,” or variants on these words. 70
Leiter mentions two candidates for further refining the definition of religion: that religion involves “a metaphysics of ultimate reality,” 71 and that it offers “existential consolation” for dealing with “the basic existential facts about human life, such as suffering and death.” 72 Ultimately, he declines to include these two other elements in his formal definition. The former, he says, is just “a variation on the idea that religious belief is insulated from evidence,” 73 and the latter, he says, is not distinctive to religion, but may be found in such nonreligious practices as philosophical reflection, meditation, and therapeutic treatment. 74 Thus, “only the first two features [categoricity and insulation from evidence] . . . matter” for these purposes. 75 At times, though, Leiter includes “existential consolation” as one of the distinctive features of religion, with the practical effect of “excluding the case of Maoist personality cults, of Marxism, and (probably) of morality.” 76
It is difficult to follow Leiter’s method here. At the outset, he asserts that a proper definition must be based on “features that all and only religious beliefs have.” 77 But elsewhere, Leiter notes that neither “categoricity” 78 nor “insulation from evidence” 79 is unique to religion, yet for unexplained reasons these features nonetheless do “matter.” This is all rather confusing and inconsistent. Personally, I think it is futile to draw up a list of features descriptive of religion and only of religion. What makes religion distinctive is its unique combination of features, as well as the place it holds in real human lives and human history.
Leiter assumes that religion is merely a subset of conscience, distinguished primarily by its lack of evidentiary warrant. It would be more precise to see religion and conscience as two overlapping categories, neither fully subsumed within the other. Conscience has to do with convictions about moral right and wrong. Some conscientious convictions have a religious foundation and some do not. Religion is partly about right and wrong, and in that sense overlaps with conscience. But it involves much more than that. Religion typically includes a set of beliefs about the nature of the universe, it prescribes practices that are sometimes more ritualistic than ethical in character (such as taking communion or wearing a yarmulke), and it is embedded in authoritative communities involving texts, stories, institutions, leaders, and tradition. It thus involves much more than conscience, just as conscience comprises more than religion. 80 This is important because much litigation involves religious ritual, ecclesiastical form, and tradition that are not strictly matters of “conscience” and have no evident secular analogue.
There are claims of nonreligious conscience that are powerful and coherent enough that they have a moral weight comparable to that of religion. During the Vietnam War, the Supreme Court decided two cases involving conscientious objectors whose beliefs, by their own admission, were not “religious” in the ordinary sense (the sense that Congress used in the conscientious objector statute recognizing exemptions from conscription). The Court’s response was to stretch the definition of religion to include any “sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption.” 81 Similarly, in particular contexts of obvious seriousness, such as protecting medical personnel from being required to perform or assist in abortions, Congress has protected “moral convictions” as well as “religious beliefs.” 82
Leiter, however, does not confine the term “conscience” to claims of this serious nature. As his paradigmatic example of nonreligious conscience, Leiter refers to claims based on family tradition and identity, 83 which we will discuss in more detail below. He also includes the “lone eccentric, who for reasons known only to him, feels a categorical compulsion,” 84 and the Marxist. 85 The category is evidently open-ended. If any belief comprising a moral judgment is “conscience,” we would face some wildly counterintuitive claims.
As Leiter points out, “[i]t seems unlikely that any legal system will embrace this capacious approach to liberty of conscience” because it would be tantamount to a “legalization of anarchy!” 86 In other words, we do not extend protection to all manifestations of conscience, broadly understood, because we cannot and should not. Accordingly, the United States Constitution provides no protection for liberty of “conscience” as such—although particular manifestations of conscience sometimes receive constitutional protection under other rubrics (freedom of speech, freedom of religion, due process). In fact, although Leiter does not mention it, the drafters of the First Amendment considered using the language of “conscience,” voted it down, and used the term “religion” instead. 87 Leiter thinks that was an error. He argues that “conscience” is the morally relevant concept, and it was wrong to single out the religious subset for legal protection.
B. “Insulation from Evidence”
If “categoricity” is the element common to both religious and nonreligious systems of belief making demands on human conduct, it is the “insulation from evidence” that most clearly distinguishes religion in Leiter’s definition, and does almost all the work in his analysis. By smuggling into the definition of religion a feature that makes religious belief seem unreasonable, the book unsurprisingly comes to the conclusion that this very unreasonableness disqualifies religion from a moral claim to special legal solicitude. The conclusion is baked into the premise.
Most obviously, Leiter’s definition stacks the deck by assuming that religious belief “always” is to some degree “false, or at least unwarranted.” 88 That is a sectarian premise, predicated on a questionable view about evidence. 89 According to Leiter, the “only epistemically relevant considerations” that warrant belief are “those that figure in common sense and the sciences.” 90 He goes so far as to say that philosophic attempts to justify religious beliefs are “nothing more than an effort to insulate religious belief from ordinary standards of reasons and evidence in common sense and the sciences, and thus religious belief is a culpable form of unwarranted belief given those ordinary epistemic standards.” 91
No religious believer would recognize this description. Religious believers do not think they are “insulating” themselves from all the relevant “evidence.” They think they are considering evidence of a different, nonmaterial sort, in addition to the evidence of science, history, and the senses. It would be more accurate, and less loaded, to amend this second part of Leiter’s definition to say that religion is a system of belief in which significant aspects are not based on science or common sense observations about the material world .
To begin with, much religious thought is not “insulated” at all. Developments in biology, physics, linguistics, archeology, and other disciplines have had profound impact on Biblical hermeneutics and theology in mainstream Protestantism and Roman Catholicism, 92 and “practical reason” has played a major role in natural law thinking since at least Thomas Aquinas. 93 To be sure, some religious traditions are more insulated from scientific developments than others. The Navajo creation story, for example, is impervious to archeological and linguistic evidence that the tribe migrated to the Southwest from Canada only a few centuries before the arrival of Europeans, and fundamentalist Christian belief in the historicity of Noah’s flood and the literal six-day creation, depending on how these ideas are understood, is much the same. But to say that “insulation from evidence” is a defining characteristic of “all” 94 (or even most) religions is simply false. Religion is constantly changing, and constantly interacting with the culture and other ways of understanding the world.
More importantly, the standards established by the scientific revolution, however powerful within their proper domain, are not obviously applicable to such matters as esthetics, morality, values, love, trust, and ultimate meaning. The scientific method does not claim to provide insight into these areas of human understanding. Indeed, some philosophers of science maintain that even science depends on certain leaps of faith, which are not the products of mere observation of material evidence. 95
In a footnote, Leiter acknowledges that “of course” there may be matters such as the “meaning of life” that “are insulated from evidence only in the sense that no scientific evidence would seem to bear on them.” 96 But he immediately dismisses the importance of this observation on the ground that “[s]uch beliefs are not my concern here, mainly because they are not distinctive to religion.” 97 What could he be thinking? His entire argument is built around the idea that religion is “a culpable form of unwarranted belief” precisely because of its “insulation from evidence.” 98 If it turns out that religion’s “insulation from evidence” is attributable to the fact that “no scientific evidence bears” on many questions of a religious nature, then religious belief cannot be criticized on these grounds. There is no reason to apply the “ordinary epistemic standards” of science and material observation to questions on which they do not bear. If Leiter is confining his “concern” to beliefs on which “scientific evidence would seem to bear,” he is leaving out most of what is central to religion, including beliefs underlying almost all claims of religious conscience, which are the subject of this book.
Leiter is entitled to confine himself to whatever categories of evidence may strike him as persuasive, but he cannot reasonably label as “culpable” or “unwarranted” the sincere conclusion of many persons, including thinkers of the first rank, that there are nonmaterial aspects of reality supporting religious belief. Leiter can no more disprove the existence of nonmaterial reality than religious believers can prove the existence of God on the basis of material evidence alone. A color-blind person might think the idea of color is bunk, because the evidence of his own eyes fails to reveal it, but that does not entitle him to assume that those who see color are engaged in a culpable form of unwarranted belief. He, not they, might be the one lacking.
As individuals, we might be justified in dismissing the idiosyncratic beliefs of small numbers of persons, especially when these people do not appear rational in other respects. But religious belief has been attested to by millions of seemingly intelligent and rational people over long periods of time, who report that they have experienced, in some way, transcendent reality. There is even, as Leiter admits, a “large literature in Anglophone philosophy devoted to defending the rationality of religious belief.” 99 Leiter chooses to disregard this testimonial evidence, along with its philosophical defense, without so much as “address[ing] . . . in any detail”—really, at all—the arguments that are offered. 100 Why? The only reason he supplies is that the “dominant sentiment among other philosophers” is that belief in God is “unsupported by reasons and evidence.” 101 With all respect, there is no reason to think that members of modern philosophy faculties have any special insights about God. But as we shall see, if you take away Leiter’s conceit that religious believers are culpably insulating themselves from evidence (as opposed to responding to a different kind of evidence), most of Leiter’s conclusions fall of their own weight.
Indeed, even for those who agree with Leiter as a matter of personal conviction that there is no persuasive evidence supporting the truth of religious belief, but agree with Madison and Washington that the truth of religion is not a subject on which the government should take a stand, Leiter’s conclusions do not follow, because they rest on the view that the state should treat religious beliefs and arguments as lacking evidentiary warrant. It is better to proceed on the premise that people may reasonably disagree about the truth or falsehood of religious claims.
Having offered a definition of religion, the next step in Leiter’s argument involves asking whether unique toleration for religion can be justified by several prominent arguments for toleration. Turning first to the Kantian (or better, “neo-Kantian”) argument, Leiter adverts to John Rawls’s well-known thought experiment in which we choose fundamental principles of justice under which we should be governed as if from behind a veil of ignorance—meaning we do not know what our circumstances (including our moral and religious views) will be, or whether we will be in the majority or minority. 102 Rawls concludes that while behind the veil we would choose to protect an equal liberty of conscience. We would not “take chances with [our] liberty,” because the value of being able to form and follow our own moral and religious beliefs outweighs any gain we might achieve from the possibility of being in a majority and imposing our views on others. 103 This supports legal protection for freedom of conscience.
In a revealing aside, Leiter questions whether Rawls is correct that people really are better off when “they can freely choose what to believe and how to live.” 104 He suggests that “many, perhaps even most” people “make foolish choices about what to believe and how to live,” with the result that they make themselves “miserable.” 105 Indeed, these people may “perhaps” not “make real choices at all,” but instead they may be “hostage to social and economic milieux,” which produce only the “ illusion of choice.” 106
This line of reasoning is ironically reminiscent of the seventeenth-century Puritan preacher John Cotton, an opponent of religious toleration in his day. Cotton argued that the
[f]undamentals are so clear, that a man cannot but be convinced in Conscience of the Truth of them after two or three Admonitions: and that therefore such a Person as still continueth obstinate, is condemned of himself: and if he then be punished, He is not punished for his Conscience, but for sinning against his own Conscience. 107
Cotton, like Leiter, thinks that those who disagree with him on the fundamentals are “culpably” wrong, that their foolish ideas will render them miserable for eternity, and that their mistakes are the product of something other than sincere conscience.
Having offered these authoritarian musings, cautiously cushioned in the form of questions rather than assertions, Leiter then disposes of them in this way: “These illiberal thoughts . . . have little purchase these days within the mainstream of English-speaking moral and political theory, though not, as far as I can tell, because they have been refuted systematically.” 108 Readers must wonder whether in an environment less constrained than the English-speaking mainstream, Leiter would attempt to pursue these “illiberal thoughts” more seriously, and what his answer would be. In any event, Leiter “put[s] these doubts to one side” and accepts, “[f]or the sake of argument,” Rawls’s conclusion that behind the veil of ignorance we would choose to protect the liberty to form and follow our own beliefs.
He then gets to his real argument. He points out, correctly, that Rawls explicitly includes “moral” along with “religious” obligations in his analysis, and thus that nothing in Rawls’s argument is “specific to religion.” Leiter concludes, therefore, that “the Rawlsian perspective cannot help us evaluate the principled case for toleration of religion qua religion.” 109
This is too quick. To be sure, Rawls does not explicitly address whether his thought experiment could be used to evaluate constitutional protections for religion qua religion, but it might. Behind the veil of ignorance, we do not know whether we believe in a supreme authority or not, but if we do, by definition belief in a supreme authority creates obligations superior to all others—in Madison’s words, “dut[ies] . . . precedent both in order of time and degree of obligation, to the claims of Civil Society.” 110 Leiter himself recognizes that religious beliefs involve issues of “ultimate reality,” 111 meaning “the aspect of reality that is most important for valuable/worthwhile/desirable human lives.” 112 From a Rawlsian perspective, from behind the veil of ignorance, there is every reason to protect our capacity to pursue that which “is most important for valuable/worthwhile/desirable human lives.” Indeed, as a matter of historical experience, many hundreds of thousands of real people have regarded their religious beliefs as so important that they sacrificed their lives, fortunes, social standing, opportunities for career advancement, and bodily comfort in order to worship in accordance with their convictions, in the teeth of official hostility and persecution. Their testimony counts for something.
The freedom to carry out our perceived religious obligations in the face of political opposition might be more important than the freedom to carry out our personal conclusions about right and wrong, for two reasons. First, we might think that adherence to the supreme authority of the universe is an ontologically superior obligation to adhering to what we, as fallible persons, might conclude about morality. That is what “the sovereignty of God” would seem to entail. Leiter himself comments that religion is one of the “few systems of belief” that actually “gives effect” to convictions about morality—that “those who genuinely conduct their lives in accord with the categoricity of the moral demands they recognize are overwhelmingly religious.” 113 Maybe there is a reason for that. Second, we might think that it is essential for governments to make and enforce moral judgments, even in the face of differences of opinion, but think it not essential for governments to make and enforce religious judgments. It is impossible to conceive of a government that does not enforce norms of right and wrong, but not at all difficult to conceive of a government that leaves religious judgments to individual conscience. At least behind a veil of ignorance, we might think these things, and might think they warrant distinctive constitutional protection for freedom of religion.
What is Leiter’s answer? He says that “it is hard to see how persons in Rawls’s original position, operating behind the ‘veil of ignorance,’ could reason, in particular, about the value of insulation from evidence and the categoricity of demands, let alone existential consolation.” 114 This is an ipse dixit , not an argument. It is nothing but an arbitrary exclusion of religious belief (defined in Leiter’s pejorative way) from the original position. The whole point of the original position is that the parties behind the veil of ignorance “do not know, of course, what their religious or moral convictions are.” 115 These might include a belief in God. And if that is a possibility, a party in the original position might think it is special and worth protecting, even if Leiter does not.
Leiter’s argument regarding Millian utilitarianism is even more problematic. Mill argued that we can discover truth, or be fully persuaded of the truth, only if we are exposed to a wide range of beliefs and practices—even if some of them are false. As Leiter explains, “truths about how we ought to live” 116 support “a wider scope of toleration, one that encompasses practices , not just beliefs. ” 117 Mill’s argument thus supports free exercise of religion, and not just speech or opinion about it.
Leiter, however, says “we can dispense with [these] epistemic arguments for toleration . . . quickly,” because “[t]here is no reason to think, after all, that tolerating the expression of beliefs that are insulated from evidence and reasons— that is, insulated from epistemically relevant considerations — will promote knowledge of the truth.” 118 In other words, because religious belief is totally without evidentiary warrant, it cannot possibly contribute to the search for truth. He fits religious belief into an apparent exception Mill draws for mathematical mistakes, where there is “nothing at all to be said on the wrong side of the question.” 119
The argument thus depends on Leiter’s tendentious claim that religious believers “insulate” themselves from evidence as opposed to recognizing nonmaterial evidence of a sort that Leiter does not recognize. Put aside Leiter’s personal convictions about the falsity of religion, which reasonable people need not and the liberal state must not accept, and his argument here fails. Leiter pretends to be arguing from Mill, but in fact he is arguing the opposite of Mill. I quote the passage Leiter cites from On Liberty , but in its entirety:
But, some one may say, “Let them be taught the ground of their opinions . . . .” Undoubtedly: and such teaching suffices on a subject like mathematics, where there is nothing at all to be said on the wrong side of the question. The peculiarity of the evidence of mathematical truths is, that all the argument is on one side. There are no objections, and no answers to objections. But on every subject on which difference of opinion is possible, the truth depends on a balance to be struck between two sets of conflicting reasons. Even in natural philosophy, there is always some other explanation possible of the same facts; some geocentric theory instead of heliocentric, some phlogiston instead of oxygen; and it has to be shown why that other theory cannot be the true one: and until this is shown, and until we know how it is shown, we do not understand the grounds of our opinion. But when we turn to subjects infinitely more complicated, to morals, religion, politics, social relations, and the business of life, three-fourths of the arguments for every disputed opinion consist in dispelling the appearances which favour some opinion different from it. 120
Leiter takes it to be a faithful extension of Mill’s position that science, like mathematics, presents a way of knowing that ought to be applied to all our beliefs because its empirical force has demonstrated its superiority beyond all argument. But Mill thinks nothing of the sort. For Mill, mathematics is a unique domain of knowledge precisely because the “peculiarity of [its] evidence”—namely, the way that mathematical evidence is not susceptible to objections or answers to objections—renders argument superfluous. Science (“natural philosophy”), by contrast, is just one more place where argument and competition among positions is needed in order to determine and justify our beliefs. And for subjects “infinitely more complicated” than science, such as religion , Mill regards the clash of various epistemic positions as even more essential. 121 Neither science nor religion can be resolved by dogmatic appeals to authority or the pretense that there is only one side to the question.
Here again Leiter reveals himself as the Anti-Mill. Take his reference to “[t]he large literature in Anglophone philosophy devoted to defending the rationality of religious belief.” 122 One might think Leiter would wish to engage with the ideas in this literature, in a Millian spirit, if only to prove why they are wrong. But no. Leiter says it “[s]uffice[s] to observe that its proponents are uniformly religious believers,” and that “much” of this literature has the air of “post-hoc . . . rationalizations.” He then resorts to authority—to the “dominant sentiment among other philosophers,” which, he reports, is on the other side. 123 The first avenue of attack is a tautological ad hominem. It is neither surprising nor disqualifying that philosophers who find religious belief rational are likely to be believers, just as philosophers who take the opposite view are likely to be nonbelievers. What does that prove, other than that there is a difference of opinion? The second avenue of attack—Leiter’s appeal to the dominant sentiment among supposed experts—is both elitist and authoritarian, in precisely the sense that Mill condemned. Religious ideas should not be put to a vote, not even of philosophy PhDs.
Careful readers will also note the inconsistency between Leiter’s use of Rawls and his use of Mill. Rawls does not comment on whether his theory would support a special role for religious freedom, beyond that due to secular moral beliefs, and Leiter takes this as tacitly rejecting such a role 124 —even though we can construct an argument, fully consistent with Rawls’s methodology in A Theory of Justice , that supports such a role. Mill explicitly states that his theory applies with particular force to religion, yet Leiter argues that it does not, employing an argument from expert authority that Mill would never accept. How can this be reconciled?
E. Schauer and “Governmental Incompetence”
Leiter also touches too quickly on one other argument—Fred Schauer’s “argument from governmental incompetence,” made in defense of the freedom of speech. 125 Even on the assumption that speech sometimes causes real harm that outweighs any possible benefit, Schauer argues that there is no reason to think that the government will make the right choices about what speech to regulate. Politicians are likely to suppress speech when it advances their own political interests, which is unlikely to coincide with the suppression of speech that causes the most net harm. The same argument can be made about freedom of religion, with even greater force. A cornerstone of the American constitutional tradition of religious freedom is the view—held by all stripes of religious opinion—that the government has no competence to judge religious truth.
Public schools can teach all kinds of nonsense, and people may not like it, but they confine their objections to ordinary channels. When public schools purport to teach religious truth, by contrast—for example, by allowing a prayer at a graduation—it is a constitutional case of the highest order. As a supporter of the Court’s School Prayer Cases , 126 I have gone on Christian talk radio to defend the prohibition of collective spoken prayer in school. The natural impulse of the audience tends to be to defend prayer, but when I explain that agents of the government should not be entrusted with the power of teaching our children how and what they should pray, even the most fervent believers usually come to see the wisdom of the decisions. Whatever our views on religion, no one trusts the government to guide our spiritual lives. That is what Schauer is getting at. Even if we would not be principled disestablishmentarians in a theoretical world where government officials are theologically trustworthy, the actual fact of government incompetence is good reason to deny them the power to guide the religious life of the nation.
Leiter’s reaction to Schauer’s argument is brief and baffling. After devoting almost two pages to explaining Schauer’s argument, Leiter offers one (long) sentence in response. He says: “Perhaps this kind of instrumental argument for state toleration is more plausible,” but “it does not tell us why we, morally, ought not to eradicate differing beliefs or practices, it tells us only that we (through the instrumentality of the state) are unlikely to do it right.” 127 That is not much of a response.
To begin with, Schauer’s is not just an “instrumental” argument. It goes to the heart of the matter. Government is not omnicompetent. It has a large, but limited, role in human affairs, limited to matters where collective coercive action is necessary and likely salutary. It makes no sense for a people to give its government powers that are outside its competence, and it makes no sense to talk about constitutional design on the assumption that government will always exercise its power intelligently and beneficently. Second, what is wrong with an instrumental argument? We might erect constitutional barriers to governmental action because the activity we are protecting is especially important to the individual or to society, and we might erect constitutional barriers to governmental action because the power we are limiting–the power to “eradicate differing beliefs or practices”–is especially inappropriate to government, or susceptible to abuse. Leiter offers no reason why the latter is less persuasive a reason than the former.
That the state is “unlikely to do it right” is evidently not, to Leiter, a deeply serious objection. He operates on an abstract plane where a magisterial “we”—those who share his own convictions and prejudices—control the levers of power. The entire book is about what this infallible “we” should do about religion. The American tradition of constitutionalism, though, proceeds on the premise that “enlightened statesmen will not always be at the helm” 128 and that the “Civil Magistrate is [not] a competent judge of Religious Truth.” 129 Leiter’s dismissal of Schauer’s argument misses this important point.
III. the legal arguments
The conclusion of the first four chapters is that there is no “principled argument that picks out distinctively religious conscience as an object of special moral and legal solicitude.” 130 In Chapter Five, entitled “The Law of Religious Liberty,” the author applies that theoretical conclusion to two practical issues of First Amendment law: whether persons whose religious beliefs conflict with neutral and generally applicable laws are entitled to exceptions or accommodations, and whether state institutions such as schools may deny religious groups equal access to otherwise generally available public resources. As to the first, he argues that singling out religious claims of conscience would be “unfair” because it “arbitrarily selects some subset of claims of conscience for special consideration,” 131 although he leaves room for exemptions that would not shift burdens onto others. As to the second issue, Leiter argues that it is “consistent with principled toleration” for the government to discriminate against religious views of which it disapproves and to exclude them from equal access to public property and resources, particularly in the schools 132 —though he is careful to insist that this discrimination must not extend to “persecution” or the imposition of “coercive burdens.” 133
Putting these two positions together, religious beliefs and practices may not be given “special moral and legal solicitude,” but they may be subjected to special civil disadvantages and exclusions. It is “arbitrar[y]” and “unfair” to single out the religious “subset of claims of conscience” when this would protect the religious but not when this would disadvantage them. What theory could support these two conclusions?
A. Free Exercise Exemptions
Professor Leiter’s rejection of free exercise exemptions bears strong superficial similarity to the Supreme Court’s still-controversial 1990 decision, Employment Division v. Smith . 134 In an opinion by Justice Antonin Scalia, the Court held that members of the Native American Church have no constitutional right to use the drug peyote in their religious ceremonies, because the Free Exercise Clause provides no protection against neutral laws of general applicability. Leiter, similarly, argues that “there should not be exemptions to general laws with neutral purposes, unless those exemptions do not shift burdens or risks onto others.” 135
There are three important differences, however, between Leiter and the Court. First, Leiter’s rationale is entirely different from, even contradictory to, the Court’s. Leiter bases his opposition to exemptions on his belief that it would be “unfair” and “arbitrar[y]” to protect religious beliefs if it is not feasible to extend the same protection to nonreligious claims of conscience. 136 The Court, by contrast, primarily based its opposition on the jurisdictional impropriety of allowing judges to weigh religious needs against the importance of governmental purposes. 137 The Court did not think it improper for the First Amendment to single out religion, and in fact even stated that legislative exemptions for religious practices may be “desirable.” 138
Second, Leiter excludes from his “no exemptions” rule cases where the exemptions would not shift burdens or risks onto others. The Smith Court recognized no such limitation. In fact, because the ceremonial use of peyote does not harm others, Leiter seems to conclude that Smith itself was wrongly decided. 139 Once this exclusion is taken into account, Leiter advocates a far broader scope for free exercise exemptions than the general rhetoric of the book suggests—almost as broad, perhaps, as pre- Smith interpretations of the Free Exercise Clause.
Third, Leiter recognizes the danger that a no-exemptions regime might “open the door to state conduct motivated by antireligious animus, but under the pretense of legitimate, neutral objectives.” 140 The Smith opinion seems oblivious to that problem. The problem is especially serious because it is exceedingly difficult for courts of law to ferret out official pretense. Leiter argues that
if we had reason to think that it will be impossibly difficult to discriminate between the facade of neutral purpose and actual neutral purpose in legislation that burdens religion—then we might think exemptions for religious claims of conscience the preferable approach, notwithstanding the inequality such an approach entails and notwithstanding the burden on the general welfare. 141
That is a generous concession, though it ultimately appears not to sway him from his no-exemption position.
Leiter frames his discussion of the exemptions issue around one illustrative case: whether baptized adherents of Khalsa Sikhism, who have a religious obligation to carry a ceremonial dagger, or kirpan , should be exempted from general school regulations prohibiting students from carrying weapons. Leiter compares this Sikh believer to a hypothetical “rural boy” of the same age whose “family traditions and upbringing” call for him to carry a knife as a symbol of his identity as a man in his community. 142 He asks us to think about what should be done in the two cases. Should both boys be exempted? Neither? Only one of them?
Leiter says there “can be no doubt” that his hypothetical rural boy’s felt need to carry a knife is a “conscientious obligation”—indeed, an “equally serious obligation[] of conscience” to that of the Sikh. 143 In my opinion, far from there being “no doubt” about this, the idea that the rural boy has a conscientious obligation comparable to the Sikh is highly dubious. Strictly speaking, conscience is an individual’s judgment about right and wrong—such things as not killing innocent persons, telling the truth, and caring for your children. It strikes me as very unlikely that the hypothetical rural boy believes that his family’s tradition of knife carrying is a moral obligation of this nature. It may take away from “who he is” to deny him the right to carry a knife, but it does not make him commit a wrong. There are many practices tied up in ethnic or familial identity that are not moral in nature. This does not make them unimportant, but it does put them in a different category than that of “conscience.” A religious dictate, by contrast, is more than a question of identity; it is a duty.
As Leiter points out, “no Western democracy” would recognize a legal right on the part of the rural boy, though it is easy to imagine that rules against pocket knives might not always be rigorously enforced, especially in rural communities where knives are commonplace and useful. The Sikh, by contrast, has a good case. In the leading decision in the United States, Cheema v. Thompson , 144 the Ninth Circuit approved an arrangement under which the Sikh student was exempted from the “total ban” on “weapons,” provided his kirpan had a dull blade of only 3-3 ½ inches, was sewn into its sheath, and was worn under his clothing so as not to be plainly visible. 145 (The dissenter’s main point of disagreement was to think that the blade should be still smaller, and riveted to the sheath. 146 ) In other cases, courts have found that kirpans are not “weapons” at all, in light of their design and ceremonial purpose. 147 Leiter focuses on a Canadian Supreme Court decision, Multani v. Commission scolaire Marguerite-Bourgeoys , 148 in which the Sikh student was allowed to wear his kirpan without these protective limitations.
One might expect Leiter to say that these cases were wrongly decided at a level of principle, because it would be unfair and arbitrary to allow the Sikh student to wear a kirpan when the rural boy has no right to carry a knife. After all, the rural boy’s conscientious claim is “equally serious” to the Sikh’s. 149 But that does not seem to be Leiter’s view. “Certainly,” he says, “the state should tolerate the various religious practices of Sikhs under the general rubric of liberty of conscience.” 150 Apparently this is so even though no Western democracy protects the right of the rural boy to wear his knife, and Leiter does not argue that they should. Leiter’s reservation about the decisions—and it is an entirely reasonable one, even if I might come out the other way—is that the courts in the kirpan cases gave insufficient weight to the risk of harm to others. If the equality objection (no exceptions for religion unless there would be an exception for secular conscience) were dispositive, Leiter would not need to discuss the risk of harm. Leiter concludes that “both boys should be out of luck,” 151 but that is because he thinks an exemption in this context would create a risk of harm to others. If the harm could be minimized or eliminated—as the Ninth Circuit thought it could, through the protective conditions—it appears that only the rural boy would be out of luck.
Note what has happened to Leiter’s argument. When it comes down to the real case of the Sikh boy and his kirpan , the “culpable falsity” of religious belief drops out of the calculus, and the analysis shifts to what he calls the “side-constraint” of not allowing harm to others. Leiter’s position turns out to be “that there should not be exemptions to general laws with neutral purposes, unless those exemptions do not shift burdens or risks onto others.” 152 Another way to put this is: “There may be exemptions to general laws with neutral purposes unless those exemptions shift burdens or risks to others.” The real point of difference then becomes: How much burden? How much risk?
It appears that in cases where the Millian Harm Principle is not violated by an exemption, Leiter’s rhetorical case against “special” solicitude for religion turns out not to matter very much, if it matters at all. As Leiter understands, his hypothetical rural boy’s perceived need to carry a knife will not and should not receive legal protection. This is not because the law is hostile or indifferent to nonreligious claims of conscience. It is because the claim is too broad, too undefined, too unfocused to be enforceable as a legal right.
As Leiter recognizes, this practical problem of open-ended subjectivity is not true of religious claims, at least not to the same extent. “After all,” he points out,
a litigant who asserts a claim of religious conscience must reference a religion . Religions typically have texts, doctrine, and commands . . . . Membership in the religion in question usually depends . . . on participation in practices , rituals , and ceremonies . All of this gives the courts a rich evidential base for assessing the genuineness of a claim of conscience. 153
These practical differences lead Leiter to the uncomfortable thought that “perhaps we should simply extend legal protection for liberty of conscience only to claims of conscience that are rooted in communal or group traditions and practices that mimic, from an evidential point of view, those of religious groups.” 154 After a few pages debating the “unfairness of such inequality,” 155 Leiter concludes that “the inequality of treatment of claims of conscience is not necessarily fatal to a scheme of universal exemptions for claims of conscience.” 156 Translation: it is permissible, after all, to single out religious claims and those nonreligious claims that “mimic” religious claims, and to give them special solicitude.
We cannot know how different this revised position is from the pure protection of free exercise of religion without knowing how often nonreligious claims “mimic” religion in this sense. This might well be a very small category. Leiter himself observes that “those who genuinely conduct their lives in accord with the categoricity of the moral demands they recognize”—which presumably is the heart of the matter—“are overwhelmingly religious.” 157 As already noted, the Supreme Court found that the claims of two Vietnam-era conscientious objectors were close enough that they warranted religious exemptions, 158 but there have been no others. In the very situation Leiter uses to illustrate the problem—the Sikh and the rural boy—the latter claim does not sufficiently “mimic” the former to warrant legal protection.
Having talked himself out of the claim that “the inequality of treatment of claims of conscience is . . . fatal to a scheme of universal exemptions for claims of conscience,” 159 Leiter drops the subject with no further discussion—until the very end of the book, when he returns to the position that the “selective application” of toleration to the conscience of only religious believers “is not morally defensible.” 160 Even then, however, he equivocates. He reiterates his support for a “No Exemptions approach . . . to claims of conscience that are burden-shifting,” 161 but as to non-burden-shifting exemptions, it still appears to be his position that religious claims and those that “mimic” religious claims are entitled to exemptions.
How different that is from the current regime depends entirely on what he means by “mimicking” religion and what counts as harm. On the actual practical meaning of those key ideas, Leiter says almost nothing.
The question of free exercise exemptions thus turns out not to hinge on the philosophical arguments of the first four chapters, but instead on the application of the Harm Principle. Some religious exemptions entail harm or the risk of harm to third parties, and some do not. In the former category Leiter gives as examples “exemptions from zoning regulations for religious institutions, exemptions from mandatory vaccination schemes, or exemptions from a ban on knives in the schools.” 162 In the latter category are such exemptions as “the right to wear certain religious garb, or to use certain otherwise illegal narcotics in religious rituals.” 163 So, the Peyote Case was wrongly decided after all.
The analysis of free exercise claims has always taken harm to third parties into account. Madison wrote that the free exercise of religion should prevail “in every case where it does not trespass on private rights or the public peace.” 164 Most of the early state constitutions protected the exercise of religion up to the point that it endangered public peace and good order. 165 Prior to the Peyote Case , free exercise litigation turned almost entirely on questions of harm, 166 and cases governed by the Religious Freedom Restoration Act 167 and the Religious Land Use and Institutionalized Persons Act 168 employ that same standard. 169 But the idea of “harm,” or of “burden-shifting,” is not self-defining. If these are to be useful legal concepts, courts must be able to make defensible judgments both about degree and nature of harm.
Unfortunately, neither courts nor scholars have given serious analytical attention to what counts as “harm.” Leiter quotes John Rawls as saying that liberty may be limited “to prevent an invasion of freedom that would be still worse,” 170 which implies some sort of weighing or balancing of harms, to determine which is “worse.” That is not easy to do with any consistency or predictability. And Leiter refers many times to John Stuart Mill’s Harm Principle, according to which “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” 171 But that statement merely begs the question: What counts as harm?
There are, of course, many easy cases. Leiter mentions that “the state need not tolerate . . . killing the infant children of the alleged heretics.” 172 No one will argue with that. But what about parents who make decisions about their children’s upbringing that others—maybe experts, maybe majorities—think are deleterious? A test case might be Wisconsin v. Yoder , 173 where the Supreme Court held that Amish families have a free exercise right not to send their children to school after the eighth grade. Was that “harm” in the Millian sense? What about prisoners whose religious practices—for example, a kosher diet—increase the cost to the taxpayers? 174 Is that “harm”?What about slitting the throats of chickens and sheep in a religious ceremony? 175 When members of three small California Indian tribes sought to block construction of a logging road through their sacred places in a national forest, was the loss of the economic benefits to the logging companies a Millian “harm”? 176
Outside the context of free exercise claims, we do not live in a Millian world. A great deal of modern legislation coercively adjusts the burdens and benefits of life, helping some at the expense of others, in ways that Mill presumably would not approve. Many modern free exercise controversies arise in the context of social and economic regulation that coerces transactions and dictates their terms. In our post- Lochner , which is to say post-Mill, world, if the problem is merely economic redistribution, there is generally no constitutional obstacle to these schemes. But what if the regulatory scheme demands a violation of conscience? From the baseline of the regulatory requirement imposed on everyone, an exemption for one individual can be said to “harm” the intended beneficiaries of the law, because they will not receive the benefit. But from the standpoint of the Millian Harm Principle, an exemption to such regulation merely returns the parties to the position they occupied before law coercively intervened.
For example, in the contraceptive mandate cases, the government has decided to shift the cost of obtaining contraceptives (including abortifacient drugs) from the user to her employer, through a mandatory term in the health insurance contract. There is nothing constitutionally objectionable about that for most employers, but what about those for whom providing abortifacients is a violation of conscience? 177 Leiter objects to “burden-shifting” religious exemptions, but what if the burden-shifting goes the other way, and the grant of an exemption would return the parties to a clearly constitutional status quo ante?
For another example, a wedding photographer in New Mexico, Elaine Huguenin, declined to provide her services to a lesbian couple, out of the conscientious belief that same-sex marriages are contrary to God’s will. 178 The couple easily found another wedding photographer. Were they harmed by Elaine’s refusal to film their nuptials? If Elaine had declined their business because she had another booking, or because she was going on vacation, no one would think they were harmed. It would appear that the only real “harm” was the communicative impact of Elaine’s action—the feeling of offense experienced by the lesbian couple because of Elaine’s reasons. In other contexts, the Court routinely holds that people may not be punished because others are offended by what they say. Yet state officials fined the photographer for her refusal, and the New Mexico Supreme Court recently upheld the fine as constitutionally legitimate. 179 Should we treat offense as “harm” in the context of a free exercise claim for exemption?
In an intriguing footnote, Leiter says that “to exempt Catholic priests from performing gay marriages would not be a burden-shifting exemption as long as gay couples can otherwise be married.” 180 From the perspective of harm or burden-shifting, that example is not different in any meaningful way from the Elane Photography case, unless the priests’ religious status is the driving factor (meaning that religion is “special” after all). Leiter purports to distinguish the case of a Catholic pharmacist who objects to dispensing morning-after pills on the ground that “depending on the community at issue and the availability of the relevant medicines,” this could be burden-shifting. 181 I say “purports” because in the two litigated cases involving such pharmacists, in Illinois and in Washington State, the evidence showed that conscience exemptions did not have meaningful effects on patient access to the drugs. 182 Thus, it would seem that, in Leiter’s view, the government should not be able to enforce public accommodation requirements or universal service obligations against service providers with conscientious objections, except in the rare circumstance where the service would not otherwise be available.
One more example: How does the Millian Harm Principle apply to the hiring of ministers by churches? 183 Title VII of the Civil Rights Act of 1964 gives everyone a right to obtain employment without discrimination based on sex. 184 If a woman goes to seminary and is otherwise qualified for an available position, can an Orthodox synagogue refuse to hire her as a rabbi? Who is shifting burdens onto whom, and relative to what baseline?
Questions of this sort will dominate free exercise litigation for the next decade or two. My sense is that very few free exercise claims seek authorization to invade the private rights of third parties or to inflict harm (in the Millian sense) upon them. Most, instead, resist the blanket enforcement of regulatory schemes that interfere with natural liberty in a way that, in some cases, also burdens conscience. Leiter does not say much about these situations outside of footnote 11 to Chapter Five, 185 but that footnote suggests that the logic of his arguments may be more supportive of these claims for exemption than the more generalized rhetoric of the book would suggest.
C. Establishment of a “Vision of the Good”
The book closes with an argument that the establishment of religion is not inconsistent with Leiter’s conception of “principled toleration.” As a heuristic device, Leiter contemplates a “scenario in which the state, instead of disestablishing religion in the public schools, endorses a particular religion (say, Catholicism) and thus declines to let funding for public education be utilized for supporting Hinduism or atheism.” 186 This means, among other things, that “public school facilities” (such as classrooms in the afternoon) “would be available to the Catholic Student Society, but not to the Hindus or the atheists or perhaps even to the Republicans!” 187 So long as dissenters are permitted to express contrary views using their own resources, including wearing religious symbols or garb to school, and to attend alternative sectarian schools, 188 he says this establishmentarian scenario is consistent with “principled toleration.” 189
That is probably true. The government could use its prestige, power, and resources to support one vision of religious truth while still leaving dissenters free to dissent. The establishment of religion may be consistent with mere toleration, but it is not consistent with the “full and free exercise of religion” 190 that our founders adopted at the federal level in lieu of toleration. About half a dozen states pursued some form of tolerant establishment in the early years of the Republic, when the Religion Clauses did not apply to state governments, but all of them dismantled their establishments by 1833. No one, to my knowledge, mourns their passing.
Toleration might be the most we can hope for in nations of the Middle East, where the population is overwhelmingly of one religious faith and there is a long tradition of union between mosque and state, but for pluralistic liberal democracies, mere “toleration” would be a step backward. From the point of view of religious freedom or of liberal constitutionalism more generally, it is hard to see why anyone would prefer Leiter’s hypothetical Catholic establishment to a regime of religious neutrality. As Madison and others pointed out long ago, the establishment of religion is bad for religion, including the established faith, bad for dissenters, bad for government, and bad for freedom.
Leiter recognizes that it is “possible that a religious or irreligious establishment reduces citizens with differing views to a second-class status.” 191 But for some reason this “is a separate question,” which requires a “culturally nuanced inquiry.” 192 He says no more against it.
Of course, Leiter has no interest in establishing the Catholic religion. What he defends is the establishment of secularism, where we would use the public schools to inculcate ideologies of a nonreligious nature and prevent voluntary student groups from using the facilities on an equal basis for prayer or Bible study. 193 His defense of establishment is a disguised attack on the modern constitutional doctrine that the state must be neutral toward religion and may not deny equal access to otherwise open public facilities to groups on account of their religious point of view. 194
Now, the idea of a secular state may sound harmless. We often use the term, loosely, to describe a nonsectarian or nonconfessional state—a state that is not committed to a particular religion or religious worldview. 195 But Leiter is using the idea in a more insidious way, to denote a state that is committed to secularism as a substantive position—that is, to what he calls “irreligion, in the form of atheism or otherwise.” 196 The establishment of secularism would stand in the same relation to religious beliefs as his hypothetical Catholic establishment stands to Hinduism, atheism, and Republicanism. The whole point of this sixteen-page detour 197 into antidisestablishmentarian theory is to legitimate the use of governmental institutions, especially schools, to promote secularism or irreligion and to discriminate against religious speech.
A state that is neutral toward religion is different. Such a state may promote ideas consistent with democratic republicanism, but will not promote religion over irreligion or the other way around. It “may place its imprimatur on values and worldviews that are inconsistent with the claims of conscience of some of its citizens,” 198 just as—in the words of the Supreme Court—it may pass laws that “happen[] to coincide or harmonize with the tenets of some or all religions.” 199 But it cannot teach religion (though it can teach about religion in a non-catechetical way), and it cannot teach “irreligion” either. And when such a state opens its facilities to private persons for speech of their own choosing, it must neither favor nor disfavor groups on the basis of their religious or other beliefs. We should remember Justice Arthur Goldberg’s admonition in the School Prayer Cases that “a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious . . . [is] not only not compelled by the Constitution, but . . . prohibited by it.” 200
Leiter’s defense of the establishment of religion brings us back, full circle, to where we began discussion of this book. It seemed odd and anachronistic that Leiter would write of religious “toleration” instead of religious freedom. Toleration was a term associated with the religious establishment. As President Washington wrote to the Hebrew Congregation of Newport, in disestablishmentarian America “[i]t is now no more that toleration is spoken of.” 201 It turns out that Leiter wants to return to the earlier regime, but with secularism rather than Anglicanism in charge. I hazard the guess that he will not persuade many readers not already predisposed to that point of view.
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See Alan Wolfe, One Nation After All: What Americans Really Think About God, Country, Family, Racism, Welfare, Immigration, Homosexuality, Work, the Right, the Left, and Each Other 61-72, 69 (1998) (noting a high degree of consensus for the proposition that “[i]n a diverse religious climate, the proper way to treat conflicts between one religion and another is to give space to them all”).
See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962).
See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012).
See Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).
For an account of the importance of the Religion Clauses to religious progressives, see Stephen H. Shiffrin, The Religious Left and Church-State Relations (2009).
See Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925) (holding that there is a constitutional right to educate children in private, including religious, schools).
See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006); Lukumi , 508 U.S. 520.
494 U.S. 872 (1990).
42 U.S.C. §§ 2000bb-2000bb-4 (2006).
See Douglas Laycock, Free Exercise and the Religious Freedom Restoration Act , 62 Fordham L. Rev. 883, 896 (1994).
See Brief for the Coalition for the Free Exercise of Religion as Amicus Curiae Supporting Respondent at app. A, City of Boerne v. Flores, 521 U.S. 507 (1997) (No. 95-2704) (listing amici curiae supporting the constitutionality of the Religious Freedom Restoration Act); Laycock, supra note 10, at 895-96.
See Douglas Laycock, Sex, Atheism, and the Free Exercise of Religion , 88 U. Det. Mercy L. Rev. 407, 411-18 (2011).
Brian Leiter, Why Tolerate Religion? (2012).
Contra Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) (noting, in a unanimous opinion by Chief Justice Roberts, that the Religion Clauses “give[] special solicitude to the rights of religious organizations”).
Leiter , supra note 13, at 63.
Id. at 122-26.
Id. at 121.
Id. at 102 (claiming that a regime that allows exemptions only for religious claims of conscience is “unfair” because an exemptions regime only for religious claims “arbitrarily selects some subset of claims of conscience for special consideration”).
Id. at 114-15.
Id. at 122-24.
Id. at 83-84 (noting religious resistance to Nazism and apartheid). Leiter shows no awareness of sociological evidence regarding the connection between religious participation and civic engagement, charitable giving, volunteer work, obedience to law, or other matters of civic concern. See Anthony S. Bryk, Valerie E. Lee & Peter B. Holland, Catholic Schools and the Common Good 312-43 (1993) (indicating, on the basis of empirical study, that Catholic education furthers students’ communal engagement, social responsibility, and personal development); Paul J. Weithman , Religion and the Obligations of Citizenship 36-66 (2002) (surveying empirical data on the role of religion in American democracy and concluding that religion helps to promote active citizenship).
Leiter , supra note 13, at 83-84 (noting Bernard Madoff as an example of harmful behavior driven by secular greed).
Other scholars making a similar argument against the special status of religion include Frederick Mark Gedicks, An Unfirm Foundation: The Regrettable Indefensibility of Religious Exemptions , 20 U. Ark. Little Rock L. Rev. 555 (1998); Steven G. Gey, Why Is Religion Special?: Reconsidering the Accommodation of Religion Under the Religion Clauses of the First Amendment , 52 U. Pitt. L. Rev. 75 (1990); and Micah Schwartzman, What If Religion Is Not Special? , 79 U. Chi. L. Rev. 1351 (2012).
See Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion , 44 Wm. & Mary L. Rev. 2105, 2114 (2003).
I summarize these events in Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion , 103 Harv. L. Rev. 1409, 1443, 1462-63 (1990).
31 The Writings of George Washington from the Original Manuscript Sources, 1745-1799, at 93 n.65 (John C. Fitzpatrick ed., 1939).
Leiter , supra note 13, at 13.
Id. at 8 (quoting Bernard Williams, Toleration: An Impossible Virtue? , in Toleration: An Elusive Virtue 18, 19 (David Heyd ed., 1996)).
Id. at 13 (“Some contemporary ‘liberal’ philosophers think the right posture for the modern state is one of neutrality, not toleration, with the disapproval the latter implies. But I reject the view that any state can really be neutral in this way.”).
In a later chapter, Leiter denies that his book is an argument “that religious belief per se deserves disrespect (e.g., intolerance),” rather hotly calling this a “pernicious conclusion . . . that is no part of the argument of the book.” Id. at 91. “Disapproval” and “disrespect,” however, are not far apart.
Id. at 14-15.
According to Locke:
[T]he care of souls cannot belong to the civil magistrate, because his power consists only in outward force; but true and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God. And such is the nature of the understanding, that it cannot be compelled to the belief of anything by outward force.
John Locke, A Letter Concerning Toleration (1685), reprinted in L ocke on Toleration 64 (Richard Vernon ed., 2010).
Leiter , supra note 13, at 10.
Id. at 8. (quoting Williams, supra note 39, at 19).
Andrew Koppelman’s recent book persuasively makes this theme the centerpiece of his understanding of religious freedom under the First Amendment. See Andrew Koppelman, Defending American Religious Neutrality (2013).
W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
James Madison, Memorial and Remonstrance Against Religious Assessments (1785), reprinted in Religion and the Constitution 51, 52 (Michael W. McConnell et al. eds., 3d ed. 2011).
See McConnell, supra note 35, at 2193-205.
See Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality 164-74 (2008).
Id. at 73-79.
Id. at 77-78.
Id. at 68 .
McConnell, supra note 36, at 1443 (quoting Gaillard Hunt, James Madison and Religious Liberty , 1 A nn . R ep . Am . H ist . Ass’n 163, 166 (1901)).
Id. at 78-80.
Id. at 8. The phrase is borrowed from Bernard Williams. See supra note 39.
Leiter , supra note 13, at 34.
Id. at 29-30.
Id. at 34 (emphasis omitted).
Id. ; see also id. at 37 (positing that “one might think that all commands of morality are categorical in just this way”); id. at 148 n.17 (claiming that “an experience of categoricity is central to anything that would count as a claim of conscience”).
The principal definitions in both the Merriam-Webster and the Oxford English Dictionaries define “conscience” in terms of “right and wrong.” Conscience , Merriam-Webster , http://www.merriam-webster.com/dictionary/conscience (last visited Nov. 26, 2013); Conscience , Oxford English Dictionary , http://www.oed.com/view/Entry/39460 (last visited Nov. 26, 2013).
Leiter , supra note 13, at 38.
Id. at 53, 55, 59, 60, 62, 65, 67, 80-81, 83-85.
Id. at 47 (emphasis omitted).
Id. at 52-53.
Id. at 46-47.
See Nathan S. Chapman, Disentangling Conscience and Religion , 2013 U. Ill. L. Rev. 1457, 1461 (noting that “religious liberty” and “liberty of conscience” overlap but are not identical).
United States v. Seeger, 380 U.S. 163, 176 (1965); see also Welsh v. United States, 398 U.S. 333, 340 (1970) (holding that “purely ethical or moral” beliefs may entitle an individual to a conscientious objector exemption).
See 42 U.S.C. § 300a-7 (2006) (forbidding health care providers receiving certain federal funds to require individuals to perform or assist in abortions in violation of their “religious beliefs or moral convictions”).
Leiter , supra note 13, at 1-3, 64-66, 93.
Id. at 39-40.
Id. at 94 (Leiter’s exclamation point).
This history is set forth in McConnell, supra note 36, at 1488-91.
Leiter , supra note 13, at x (emphasis omitted). Leiter sometimes seems to equate “falsity” with being “unwarranted,” see id. at 77 (“Religious belief is (epistemically) culpable false belief—that is, it is unwarranted and one ought to know it is unwarranted.” (emphasis omitted)), but some unwarranted beliefs are true.
For Leiter’s view of the kind of evidence that would support the reasonableness of religious belief, see id. at 40-42. For discussion of why this view of evidence is questionable, see Alvin Plantinga, Warranted Christian Belief (2000); and Nicholas Wolterstorff, Can Belief in God Be Rational if It Has No Foundations? , in F aith and Rationality: Reason and Belief in God 135 (Alvin Plantinga & Nicholas Wolterstorff eds., 1983), which offer criteria for the application of the concept “rational” that do not indulge in reductive evidentialism.
Leiter , supra note 13, at 58; see also id. at 39.
See, e.g. , Marcus J. Borg & N.T. Wright, The Meaning of Jesus: Two Visions 3-30 (1999) (discussing the impact of archeology, history, and cultural study in understanding the life and message of Jesus); Gary Dorrien, The Making of American Liberal Theology: Idealism, Realism, and Modernity 2 (2003) (describing the development of modern liberal theology in Protestant and Catholic thought as a movement characterized by the belief that “God was immanent in the evolutionary processes of nature and modern cultural development”); Hans W. Frei, The Eclipse of Biblical Narrative: A Study in Eighteenth and Nineteenth Century Hermeneutics (1974) (charting the broad ranging shift from precritical narrative readings of the Bible to historical-critical readings); The Oxford Handbook of Biblical Studies 567-674 (J.W. Rogerson & Judith M. Lieu eds., 2006) (offering a collection of essays in Biblical hermeneutics drawing on archeology, textual criticism, literary criticism, and feminist theory); J ohn Polkinghorne, Science and the Trinity: The Christian Encounter with Reality (2004) (exploring the relevance of claims of science and modern physics to Christian theology).
See Thomas M. Osborne, Jr., Practical Reasoning , in T he Oxford Handbook of Aquinas 276 (Brian Davies & Eleonore Stump eds., 2012); see also Daniel Westberg, Right Practical Reason: Aristotle, Action, and Prudence in Aquinas (1994).
Leiter , supra note 13, at 27.
See, e.g. , Thomas S. Kuhn, The Structure of Scientific Revolutions 157-58 ( 3d ed. 1996 ) ( noting that a decision to adopt a new scientific paradigm often demands “defiance of the evidence provided by problem-solving. [The scientist] must, that is, have faith that the new paradigm will succeed with the many large problems that confront it, knowing only that the older paradigm has failed with a few. A decision of that kind can only be made on faith”); see also Richard Rorty, Philosophy and the Mirror of Nature 341 (1st ed. 1979) (arguing that we should think of science as a “value-based enterprise”).
Leiter , supra note 13, at 149 n.18 (emphasis omitted).
Id. (quoting Alex Byrne, God , Bos. Rev. , Jan.-Feb. 2009, at 31).
See John Rawls, A Theory of Justice 207 (1971) [hereinafter Rawls, A Theory of Justice ]. Leiter declines to draw support from Rawls’s later work, John Rawls , Political Liberalism (2005), calling it an “unfortunate” development in Rawls’s thought, Leiter , supra note 13, at x, and asserting that it plays no role in his analysis, id . at 141-42 n.17.
Leiter , supra note 13, at 16 (quoting Rawls, A Theory of Justice, supra note 102 , at 207).
John Cotton, The Bloudy Tenet Washed and Made White in the Blood of the Lamb 13 (Quinta Press 2009) (1647).
Leiter , supra note 13, at 18.
Id . at 55.
Madison , supra note 50, at 51.
Leiter , supra note 13, at 47.
Id. at 38 .
Id. at 54-55.
Id. at 16 (quoting Rawls, A Theory of Justice, supra note 102 , at 206 ).
Id. at 55-56.
Id. at 57 (quoting John Stuart Mill, On Liberty 35 (Elizabeth Rapaport ed., Hackett 1978) (1863)).
John Stuart Mill, On Liberty 49 (Alan S. Kahan ed., Bedford 2008) (1863).
I am grateful to Mark Storslee for this point.
Leiter , supra note 13, at 80.
Id . at 12 (citing Frederick Schauer, Free Speech: A Philosophical Enquiry 86 (1982)).
Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962).
Leiter , supra note 13, at 12.
The Federalist No. 10, at 80 (James Madison) (Clinton Rossiter ed., 1961).
Madison, supra note 50, at 51-52.
Leiter , supra note 13, at 92.
Id. at 102.
Id. at 123.
Id. at 104.
Leiter , supra note 13, at 4.
Smith , 494 U.S. at 890 (criticizing a system “in which judges weigh the social importance of all laws against the centrality of all religious beliefs”). The Court also purported to rely on text and precedent, but these arguments were unpersuasive. See Michael W. McConnell, Free Exercise Revisionism and the Smith Decision , 57 U. Chi. L. Rev. 1109, 1114-16, 1120-27 (1990).
Smith , 494 U.S. at 890.
Leiter , supra note 13, at 100.
Id. at 107.
67 F.3d 883 (9th Cir. 1995) (arising under the Religious Freedom Restoration Act, prior to City of Boerne v. Flores , 521 U.S. 507 (1997)); see Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. §§ 2000bb to 2000bb-4 (1994)).
Cheema , 67 F.3d at 884, 886.
Id. at 892, 894.
See, e.g. , State v. Easterlin, 149 P.3d 366, 369 n.3 (Wash. 2006) (suggesting that a Sikh may argue to the trier of fact that he was not “armed” while wearing the kirpan ); State v. Singh, 690 N.E.2d 917, 920-21 (Ohio Ct. App. 1996) (holding that the trial court erred when it denied defendant’s motion for judgment of acquittal because there was no evidence the kirpan “was designed or adapted for use as a weapon” as required for a violation of the state concealed weapon statute); Hof van Beroep [HvP] [Court of Appeal] Antwerpen, Jan. 14, 2009, L204 P 2007 & L205 P 2007 (Belg.), http://www.sikhs.be/files/IMG_0003.pdf .
[2006] 1 S.C.R. 256 (Can.).
Leiter , supra note 13, at 3.
Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965).
Leiter , supra note 13, at 99.
Id. at 133.
Id. at 130. Leiter uses the term “burden-shifting” not with regard to burdens of proof in litigation, but as referring to cases where protection for one person’s conscience would impose a burden on someone else.
Id. at 99-100.
Id. at 100.
Letter from James Madison to Edward Livingston (July 10, 1822), in 9 The Writings of James Madison 98, 100 (G. Hunt ed., 1901).
I discuss these provisions in greater detail in McConnnell, supra note 36, at 1455-58, 1461-66.
See, e.g. , United States v. Lee, 455 U.S. 252 (1982) (holding that the Free Exercise Clause did not mandate an exemption from social security taxes for an Amish employer because such accommodation would undermine the mandatory contribution system at the heart of the program); Sherbert v. Verner, 374 U.S. 398, 406 (1963) (noting that infringement of a claimant’s free exercise rights can be justified by only “the gravest abuses, endangering paramount [state] interests” (quoting Thomas v. Collins, 323 U.S. 516, 530 (1945))).
Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. §§ 2000bb to 2000bb-4 (1994)).
Pub. L. No. 106-274, 114 Stat. 803 (2000) (codified at 42 U.S.C. §§ 2000cc-1 to -5(2006)).
See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 437 (2006) (pointing out that the government had not advanced any argument as to why allowing a free exercise accommodation under the Religious Freedom and Restoration Act would cause the kind of “administrative harm” recognized as a compelling interest in earlier cases); Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) (mandating that when considering a prisoner’s free exercise claim under the Religious Land Use and Institutionalized Persons Act, courts take into account the burdens the accommodation imposes on non-beneficiaries).
Leiter , supra note 13, at 22 (quoting Rawls, A Theory of Justice, supra note 102 , at 215 ) .
Id. (quoting Mill , supra note 120, at 23).
406 U.S. 205 (1972).
See, e.g. , Beerheide v. Suthers, 286 F.3d 1179 (10th Cir. 2002) (finding a prison’s refusal to provide free kosher meals to claimants a violation of the First Amendment notwithstanding budgetary concerns).
Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) (holding that city ordinances prohibiting animal sacrifice violated free exercise principles).
Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) (rejecting the free exercise challenge to the government’s infringement on tribal sacred land).
See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (holding that employers with a religious objection to abortifacients cannot be required to include them in health insurance coverage).
Elane Photography, LLC v. Willock, 284 P.3d 428 (N.M. Ct. App. 2012).
Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013).
Leiter , supra note 13, at 162 n.11.
Stormans, Inc. v. Selecky, 844 F. Supp. 2d 1172 (W.D. Wash. 2012), appeal docketed , No. 12-35221 (9th Cir. Mar. 23, 2012); Morr-Fitz, Inc. v. Quinn, 976 N.E.2d 1160 (Ill. App. Ct. 2012).
See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) (holding that a “called” teacher was a “minister” under the ministerial exception, which barred teacher’s employment discrimination claim against her religious employer).
42 U.S.C. § 2000e-2(a) (2006).
Id. at 126.
Id. (Leiter’s exclamation point).
Interestingly, Leiter adds that the alternative sectarian schools in his hypothetical establishmentarian regime are funded by the state “in the manner of Britain.” Id. at 127. Does this suggest that our current system in which the government runs secular schools and (mostly) refuses to pay the costs of religious alternatives is intolerant?
Hunt, supra note 57, at 166.
Leiter , supra note 13, at 129-30.
Id. at 130.
Id. at 120-22.
See Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Bd. of Educ. of the Westside Cmty. Sch. v. Mergens, 496 U.S. 226 (1990); Widmar v. Vincent, 454 U.S. 263 (1981); see also Healy v. James, 408 U.S. 169 (1972) (applying a similar equal access principle to a radical political organization).
I discuss implications of the two meanings of “secular” in Michael W. McConnell, Reclaiming the Secular and the Religious: The Primacy of Religious Autonomy , 76 Soc. Res. 1333 (2009). See also Charles Taylor, The Polysemy of the Secular , 76 Soc. Res. 1143 (2009) (describing the developing and contested meanings of “secular” and noting that modern conceptions often emphasize some form of neutrality).
Leiter , supra note 13, at 129. To be sure, Leiter stops short of calling for an actual establishment of irreligion, but only because he has not (yet) “made the argument” that irreligion “is in fact a proper object of appraisal respect.” Id. That should not be a difficult argument for him to make, since the reason he regards religious beliefs as unworthy of appraisal respect revolves around the “falsity” of religion. See id. at 75-85. There is no indication Leiter believes irreligion is false.
Id. at 114-30.
Id. at 117.
Harris v. McRae, 448 U.S. 297, 319 (1980) (quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961)) (rejecting an Establishment Clause challenge to the denial of funding for abortions).
Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring).
McConnell, supra note 36, at 1444 (quoting 31 The Writings of George Washington, supra note 37 , at 93 n.65).
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Article Contents
1. introduction, 2. perry’s approach to the right to religious and moral freedom, 3. the expansion of the paradigm of the right to religious freedom, 4. religion and morality as different ideas, 5. moral independence versus moral autonomy, 6. the “right to religion” and the “right to freedom of conscience”, 7. conclusion.
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A right to religious and moral freedom?
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Rafael Domingo, A right to religious and moral freedom?, International Journal of Constitutional Law , Volume 12, Issue 1, January 2014, Pages 226–247, https://doi.org/10.1093/icon/mou001
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This essay develops a normative argument against Michael Perry’s approach to religious freedom. According to Perry, the right to religious freedom should be expanded into a claim upon liberal democracies to religious and moral freedom. In other words, one should be free to practice one’s morality, whether or not it is grounded in the transcendent. This paper argues instead that religious freedom cannot be protected by the same legal paradigm as moral freedom because religion and morality affect legal systems in different ways. Religious freedom and moral freedom are different ontological realities and therefore require different treatments under law. Religion is detachable from political communities; morality is not: political communities are by definition moral communities. Perry’s expansion promotes moral permissiveness and slows and hinders the right development of religious and moral values in political societies. His approach ultimately identifies moral freedom with free morality and coercively imposes a particular model of morality: namely, a liberal one. In place of Perry’s expansion, this paper proposes a new expansion of religious liberty along different lines: a more specific legal distinction between the “right to religion,” on the one hand, and moral freedom of conscience, on the other.
Michael J. Perry, a distinguished American scholar of law, religion, and morality, has advocated broadening the paradigm of the right to religious freedom into what he calls the right to “religious and moral freedom.” 1 That is, he defends extending the right to religious freedom to embrace moral freedom and making this expanded right mandatory for liberal democracies. According to Perry, this extension of the right is the best way to protect rigorously the freedom to live one’s life in harmony with one’s deepest and ultimate convictions and commitments, whether or not one’s morality is religiously based. 2 This doctrinal elaboration of a new right to religious and moral freedom is part of his ambitious project of developing a “global political morality” 3 of liberal democracies based on human rights. 4 Although Perry focuses on the United States, 5 his approach aspires to universal validity, 6 and he grounds his arguments partly in international human rights instruments and comparative constitutional case law. 7
In this article, I take for granted the widely accepted point, 8 which Perry also defends, 9 that the traditional religious freedom paradigm should be expanded to cover believers and non-believers alike. 10 I do not, however, accept Perry’s argument for expanding the right of religious freedom into a right to religious and moral freedom, for religion and morality, though related, affect the law in very different ways. Religion is detachable from politics, but politics is not detachable from morality. Political communities are by definition moral communities, but by definition they are not religious communities. 11 The same legal right should not be understood to protect both a constitutive element of political communities such as morality, and an important but separable element like religion. One can have the right to live according to one’s religion in a non-religious community such as the political community, but one cannot have the same right to live one’s own morality in a community that is in part morally defined, as is the political community. I thus challenge the idea that there is a right to religious and moral freedom as such, and suggest instead the necessity of a more precise legal distinction between the “right to religion” and the “right to freedom of conscience.”
This article challenges the starting points—the “first principles” or “primary truths” 12 —as well as the tacit assumptions 13 of Perry’s argument, on these grounds:
Protecting non-believers as well as believers is best served not by unifying but rather by distinguishing religious from moral freedom as sharply as possible.
Politics is independent of religion but not of morality. So religious freedom and moral freedom cannot receive the same treatment as a single human right.
Religious freedom does not entail a general moral freedom (understood as moral independence) but only freedom of conscience (an expression of moral autonomy).
Asserting a single right to religious and moral freedom erroneously equates moral equality with religious equality, to the detriment of public morality.
The fact that all human beings are morally equal in dignity does not mean either that legal systems should treat all moralities equally or that they may not regulate morality except in pursuit of human rights or “legitimate” interests in Perry’s particular sense.
Religious beliefs can licitly play a more extensive role in political communities than Perry allows.
Religious and moral values can be instruments of unity in the political community since they can constitute a part of the communitarian identity. In order to be generally recognized by the political community, religious values should be distilled into moral or political values.
Three clarifications before continuing: First, this paper uses the term “legal system” and not “law” in order to differentiate a human creation (the legal system) from an idea (law) that embraces religious as well as legal elements. Thus, it is possible to talk about “divine law” or the “Law of God” but not about a “divine legal system.” 14 Second, since Perry’s new paradigm has been developed over several years of prolific output, 15 it has sometimes been difficult to determine precisely his final opinion on a given issue. In cases of doubt or conflict, I have assumed that the later publication reflects Perry’s current or more settled view. 16 Third, this essay does not focus on Perry’s interpretation of the International Bill of Rights in support of his argument 17 or on the concrete application of Perry’s paradigm to the controversial cases of abortion and same-sex unions. 18 Though important in their own right, these points do not touch the essence of Perry’s argument, on the supposed requirement for liberal democracies to expand religious freedom into a unitary right of religious and moral freedom.
To orient readers, I summarize in broad strokes Perry’s approach to religious and moral freedom. Human rights are based on the equal, inviolable, and inherent dignity of all human beings. 19 According to Perry, this proposition is “axiomatic” 20 in a liberal democracy dedicated to the protection of human rights. To “act towards one another in a spirit of brotherhood” is the “fundamental imperative” 21 articulated in the Universal Declaration of Human Rights. 22 This is also the “normative ground of human rights” 23 in the sense that all human rights are specifications of what the imperative forbids or demands in particular cases. 24 A right is a human right if the “fundamental rationale” for protecting the right is that conduct that violates the right also violates the imperative of a spirit of brotherhood. 25
All human rights are moral rights, but, as a matter of fact, not all human rights are legal rights since some human rights are not enforceable in many countries. 26 A democracy is committed to a human right if its legal system recognizes and protects this human right as a fundamental legal right. Liberal democracy’s commitment to the equal, inherent, and inviolable dignity of the person, Perry continues, also entails its commitment to the right to moral equality, which is the right of each human being to be treated by governments and lawmakers as morally equal to every other human being, 27 i.e. according to his or her equal dignity 28 and “in a spirit of brotherhood.” 29 All fundamental legal rights must preserve moral equality inasmuch as they must preserve human dignity. Religious freedom is a human right to which a liberal democracy is committed; it is a fundamental legal right. 30 In Perry’s view, religious freedom is the freedom to live one’s life in harmony with one’s ultimate convictions and commitments, whether they are grounded in transcendent or non-transcendent considerations. 31
Liberal democracies are also committed to the right to moral freedom, Perry continues. 32 Moral freedom is the freedom to live one’s life in harmony with one’s moral convictions and commitments, whether or not they are transcendent. 33 Since, according to Perry, “there is no way to address fundamental moral questions without also addressing, if only implicitly, religious questions,” 34 the right to religious freedom must be expanded into a right of religious and moral freedom. Moral freedom and religious freedom are more than analogous or complementary rights. 35 They constitute a single fundamental right, which protects “the freedom to live one’s life in accord with one’s religious and/or moral convictions and commitments.” 36 So, it is “misleading” to describe the human right of religious and moral freedom simply as the right to religious freedom. 37 And doing so makes it impossible to protect moral equality between believers and non-believers in a liberal democracy. In other words, if religion in the broadest legal sense refers to ultimate questions, concerns, and convictions, and if fundamental moral issues have to do with the same, then moral freedom and religious freedom must be protected under the same right: the right to religious and moral freedom. Recently, Perry identifies this right with the right to freedom of conscience. 38 This expansion constitutes “one of the most important ways for a society to manage moral and religious diversity.” 39
According to Perry, in a liberal democracy, the moral contents and aspirations of the law should be minimal, 40 for the sake of the moral freedom and moral equality of each of its members. It is not the business of democratic government to protect either moral truth or society’s moral health or moral unity. 41 Political governments should not be trusted as arbiters of religious or other ultimate questions. 42 They should arbitrate moral disagreements only as between individuals or other private entities. 43 In particular, Perry thinks, governments may limit the practice of the right to religious or moral freedom only when three conditions are satisfied: the legitimacy condition, the least burdensome alternative condition, and the proportionality condition. 44
The legitimacy condition is critical to Perry’s proposal. Only a legitimate objective or interest can justify a government’s imposition of some restriction or policy that curtails religious or moral freedom. 45 Illegitimate interests include trying to protect the truth about religious or other ultimate questions, or the political community’s unity or strength on such issues. 46 The other two conditions operate within the framework established by the legitimacy condition. 47 Public morals can undeniably satisfy the legitimacy condition, 48 but only when the restriction or other policy in question is not based on sectarian religious or moral belief: “Protecting sectarian morals is not a legitimate government objective under the right to religious and moral freedom.” 49
The right to religious and moral freedom ought to be considered a “fundamental political norm” 50 of the global morality of human rights, Perry says. He tries to find support for his argument in favor of a right to religious and moral freedom in article 18 of the International Covenant on Civil and Political Rights, 51 which he considers “canonical.” 52 Although the article refers to a “right to freedom of thought, conscience and religion,” Perry argues, among other things, that the article’s mention of belief and conscience, as well as the paragraph’s reference to “moral education,” provides sufficient support for his expanded interpretation. 53
Perry applies his paradigm to some of the most controversial issues, especially in the United States: abortion and same sex marriage. 54 He concludes that “an extreme ban on abortion . . . violates both the right to moral equality and the right to religious and moral freedom,” 55 while the exclusion of same-sex couples from civil marriage violates the right to moral and religious freedom, but not the right to moral equality. 56
To understand the logic of Perry’s extension to moral freedom, we can begin by considering other expansions in the concept of religious freedom. The original paradigm of religious freedom, established first by Protestantism and then by Enlightenment liberalism, was designed to protect “mutual toleration of Christians in their different profession of religion.” 57 It was a transcendent approach, since it regarded the exist ence of God, in the Abrahamic sense of the term, as rationally provable and socially accepted. 58 According to this original approach, religious freedom was the political freedom required to accomplish the duty of rendering to God what human beings as creatures owed him according to justice or, in the words of James Madison, the father of religious freedom in the United States, “the duty which we owe our Creator and the manner of discharging it.” 59 So the end of religious communities was understood to be “the public worship of God, and by means thereof the acquisition of eternal life.” 60 The idea of God was central to the understanding of religious freedom as its own right deserving of special treatment, and different from the rights to freedom of speech, press, association, and more. As America’s early religious freedom advocate Roger Williams put it, “God requires not uniformity of religion to be enacted and enforced in any civil state.” 61 Freedom of conscience was the legal tool to protect the free exercise of religion. The ultimate end of freedom of conscience was not to protect conscience against potential political immorality, 62 but to protect the free election of one’s own religious path.
This original paradigm of religious freedom has been expanded over the past two centuries in two basic directions: first, to protect non-transcendent religions and beliefs; and second, to protect so-called “freedom from religion.” The advance of globalization highlighted the diversity of world religions and beliefs (Abrahamic religions, Eastern religions, religious eclecticism, private beliefs, aboriginal and indigenous spiritualities, and so on), and the corresponding need to expand the religious paradigm to extend coverage to all kinds of religious and nonreligious beliefs and creeds. This expansion was firmly adopted in the Universal Declaration of Human Rights (art. 18) and in the Covenant on Civil and Political Rights (art. 18), and it was recognized by the most important international documents, notably the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. 63 There was no question that in a world in which believing in God was no longer axiomatic, historical monotheism could not be the key to the right to religious freedom. The extension of the protection of the paradigm of religious freedom to non-transcendent religions and beliefs was, therefore, an eminently understandable position on the part of liberal democracies. After this extension, the ultimate foundation of the right to religious freedom was no longer the existence of God and the free exercise to worship, but the religious capacity of the human being as a dimension of his or her inherent dignity.
This positive and realistic shift, aimed chiefly at avoiding discrimination in religious matters in the era of equality, did not justify the exclusion or marginalization of the idea of God as understood by Deism, by the Abrahamic religions (Judaism, Christianity, and Islam), and by other forms of transcendent monotheism (for instance, Zoroastrianism, Sikhism, or the Baha’i faith). Nor did it justify the reduction of religion to mere personal conviction and subjective belief. The idea of a transcendent God remained at the heart of the idea of religion. This first expansion of the right simply meant that transcendence, and specifically believing in God, was no longer a necessary condition of protection under the right of religious freedom, but just a sufficient one. This was the change and the challenge of the new paradigm of religious freedom.
As a result of an intense process of Western secularization over the last several decades, the incorporation of nonbelievers (atheists, agnostics, and so on) under the protection of the right of religious freedom implied a second, long-range expansion of the paradigm of religious freedom, this time to protect people against religion. The peculiar “freedom from religion” discussion introduced by the American First Amendment’s Establishment Clause anticipated the broader twentieth century discussion of “freedom from religion.” 64 The aim of the extension was to establish “bonds of solidarity,” 65 a sort of “overlapping consensus” 66 of all kinds of worldviews and convictions. According to this second expansion, freedom of religion must be the inclusive patrimony of believers and nonbelievers. It should therefore fully protect from religion those who choose to have nothing to do with God or religion.
These two extensions of the paradigm of religious freedom have also taken place in other basic rights such as the right to marriage and the right to work. Although these other rights are of a different ontological quality, they are supported by the same legal framework: the paradigm of a right to protect a good for society that is freely chosen by the individual. So they can serve as a useful analogy. The right to marriage should protect both people who decide to marry and people who decide not to marry. The starting point of the right to marriage is the personal autonomy to decide whether to marry. The right not to marry is not strictly a derivation of the right to marry, but simply a derivation of moral autonomy. However, under the umbrella of the right to marriage a legal system can protect both married and single people; i.e., the right to marriage can also protect the “freedom from marriage.” Without reference to a social union or legal contract there is no marriage, and a right to marriage cannot have special treatment. But as a matter of fact a single person without any kind of legal contract is protected by the right to marriage. Moreover, according to the law, just by extending the paradigm, a given partnership can be assimilated to legal marriage. So on the one hand, if marriage is relevant to the legal system, it is because of the legal relevance of marital union, not of singlehood or partnership. Yet without moral autonomy with respect to whether to marry, there is no right to marriage.
Something similar happens with the right to work. The right to work can protect both workers and people who decide not to work (“freedom from work”). The right not to work is not strictly a derivation of the right to work, but just a matter of personal moral autonomy. However, under the umbrella of the right to work, a legal system can protect both workers and non-workers. Without a reference to some labor issues (salary, labor contract, vacations), a right to work cannot have special treatment. However, as a matter of fact, a non-worker without any kind of legal contract could be protected by the right to work as an extension of the paradigm. A legal system can assimilate to workers people who are actually working for free, without any labor contract.
Freedom from marriage and freedom from work, although matters of personal moral autonomy, can be understood because there is a right to marriage and a right to work—because, that is, human beings are potential workers and potential spouses. To regard marriage and work as goods deserving of the legal protections afforded by human rights is not discriminatory against single people and the unemployed because everybody has the right to marry and to work. However, these are different statuses: one cannot be married and unmarried, or a worker and a non-worker, at the same time. Thus, the positive exercise of the right (marriage or work) requires more attention on the part of legal systems than the negative exercise of the right (to be single or not a worker), but in no case does this treatment suppose a discrimination against any person who decides not to work or to remain single. It is just a matter of legal implications (in the case of marriage: the possibility of having children within the marriage, cohabitation, and so on; in the case of a worker: social security, vacation, salary, and so on).
The same framework, I submit, should be applied to the right to religious freedom (freedom of and from religion). Originally, the right to religious freedom entailed only the freedom of religion, with the concept of religion limited to Abrahamic religions. In a first expansion, the right to religious freedom came to embrace the freedom of both transcendent and non-transcendent religions and beliefs. In a second expansion, it came to include freedom from religion as well. Freedom from religion is not strictly a derivation of the right to religious freedom, however, but just a matter of personal moral autonomy. Even so, under the umbrella of the right to religious freedom, a legal system can protect both believers and non-believers. Without a reference to religion there is no religious freedom. Nevertheless, as a matter of fact non-believers are also protected under the right of religious freedom. The decision not to have anything to do with religion is a moral decision about religious issues, not a religious decision, just as the decision not to have anything to do with marriage is a moral decision but not a marital decision. It is a matter of personal moral autonomy. It is ultimately a matter of freedom of conscience. That is why without freedom of conscience there is no religious freedom.
In this context, Perry’s expansion of religious freedom into religious and moral freedom is understandable: If the right to religious freedom has been expanded in order to protect all kinds of beliefs and ultimate convictions, the right should protect not just the practice of religion, but the practice of one’s morality, whether or not based on religious convictions or standards. In my opinion, however, this extension is problematic. The right to religious freedom does not entail the right to practice one’s religious or non-religious morality because religion and morality are ontologically different. Politics, like legality, cannot be separated from morality altogether. However, religion can and should be separated from politics. Thus, religion and morality require different legal standards, different rules and different forms of legal protection. Therefore, they cannot be treated as the same right, but as two different freedoms: freedom of conscience and freedom of religion.
Religion and morality are closely related. But they are different ideas, different realities, and they affect political communities and legal systems in different ways. Religion is not morality, and religious freedom is not moral freedom. Religion tries to find a response to the question about transcendence and thus involves ultimate beliefs and convictions. Morality tries to give a response to questions about the good (right) or bad (wrong) intentions, decisions and actions of human beings as individuals and members of communities. Although both religion and morality are intrinsically related and mutually supporting, especially in the Abrahamic religions, they do not have definitional connections, since the knowledge of moral truths does not necessarily connect with knowledge of religious truths. 67 So, it is possible to talk about religion without morality and morality without religion: “When religions are compared, this kind of overlap in religion and morality is seen to be more the exception than the rule,” affirms Niklas Luhmann. 68 And Ronald Dworkin’s book Justice for Hedgehogs is just the most recent important attempt to support morality without religion. 69
A devout Sikh boy who decides not to wear his dagger ( kirpan ) in school because it could be dangerous for classmates is making a moral decision on the basis of a religious precept to which he is committed. 70 A Jewish person who decides not to attend military service in order not to bear arms is making a decision based on moral grounds but not on religious grounds, because Judaism does not ban the bearing of arms. A Christian who skips church on Sunday to take care of his or her grand father is contravening a religious commitment out of a moral concern for solidarity. The decision can be justified by the church (Christian charity), but it is chiefly moral, not religious. A Christian can decide to be vegetarian for moral reasons (protection of animals), but also for religious reasons (to offer this sacrifice to God in atonement for the sins of humankind). A Muslim can avoid alcohol for religious reasons but also just for moral or prudential reasons: say, to comply with medical advice. An atheist girl who decides to have a baby in difficult circumstances rather than have an abortion is making a moral decision that has nothing to do with religion. We can multiply examples in which we can differentiate morality and religion, and not just in some abstract or academic sense.
All communities are moral communities by nature since they have to make moral decisions, i.e., decisions about what is good (right) or bad (wrong) for the community. As a community, the political community is moral, as is the religious community. Behind health policies, immigration strategies, capital market regulations, environmental statutes, educational standards, and so on, there are always moral decisions. Even the political decision of a community not to make a moral decision about individual behaviors and practices if they do not affect a political interest is as such a moral decision: a collective moral decision to base the community’s public moral standards on moral independence—that is, on a degree of permissiveness.
Morality is a constitutive element of the political community, and ultimately of the legal system, but not of religion. The political community cannot help but make many moral decisions. But moral decisions are made in other communities, too: in a school, corporation, neighborhood, family, as well as in a church, synagogue, or mosque. In short, it is not only that the political community makes moral decisions; rather, on matters within its competence, it cannot help but make moral decisions. Of course, for the most part, it cannot interfere in the peaceable moral decisions made in other non-state associations, but even there it can set minimal standards; if, say, a religious community or a private association decides that child sacrifice is a good thing, the political community will step in.
Morality is part of the “home” of the political community; religion, however, is just a “neighbor”: it is separate but inhabits the same area. As to moral community, moral issues affect legal systems of political communities more strongly than religious issues. The decision of a political community to be neutral on some moral issues is a moral decision, not just a political one. That is why no political community is morally neutral. Moreover, political decisions about being or not being neutral about religion are not religious decisions, but they are moral decisions. They are decisions about how to achieve the common good of the community. Behind the constitution and structure of each legal system, there are critical moral decisions. Even the decision strongly to separate law and morality as two different entities without connection, as analytical legal positivism demands, is not only a legal philosophical decision, but a moral decision: “the morality that makes law possible,” to cite Lon L. Fuller’s famous expression. 71
Political communities cannot escape from morality just as they cannot escape from legality. Liberal political communities try to separate justice from the good as much as possible. But this concrete political decision is also a moral decision: the moral decision to consider justice amoral or to give priority to the right over the good. I am not arguing that all political decisions are moral, just those that have to do with the achievement of the good. Decisions about the colors of a country’s flag or the convenience of having one or two parliamentary chambers are political but not moral. However, all political communities have to make ineluctably moral decisions in order to survive as political communities.
Political communities, at least in modern liberal democracies, are not religious communities. Political communities can and must avoid religious decisions. Religious decisions should be made just by private individuals, informed by their own consciences, and sometimes by the communities of voluntary membership, like churches, synagogues, or mosques. Religious decisions cannot be made by communities of compulsory membership, such as the political community. The decision of a political community to protect the right of religious freedom—of individuals and the voluntary religious communities that individuals choose to join—is a political (and moral) decision by the state, but not a religious decision, although it has religious consequences. Political communities can protect the practice of every religion because they are not themselves religious communities. They can limit or interfere in religion only in so far as religion harms the common good, say, by promoting violations of life and limb.
Religious communities, too, make moral decisions; they, too, are moral communities, offering moral directives that sometimes converge and sometimes are in tension with those of the state. Both political communities and religious communities have variations on the moral laws not to kill, steal, or bear false witness. They have a shared morality, albeit different means of enforcing it (criminal law v. spiritual discipline). But they sometimes have divergent moral answers to the same question. The liberal state says you may have an abortion or divorce; the Catholic Church says you may not. But it is not just the morality of the religious community, but also that of private conscience that is separate from the political morality and jurisdiction of the state.
Morality is on both sides of the wall dividing politics and religion. The difference between political morality and religious morality is that political morality should be reasonable, i.e. it should be based on a moral rationale. Otherwise, it cannot be applied according to the standards, rules and procedures of legal systems (constitutional law, criminal law, tax law, property law, and so on). Religious morality, however, can be based on a moral rationale, but also on what I shall call a moral “supra-rationale” (not against but beyond reason) or even an irrational moral claim. The religious prohibition of slavery is based on a moral rationale, not a moral supra-rationale. So, political and religious communities can concur in banning slavery on the ground of its immorality. The religious prohibitions of abortion and euthanasia, too, are based on a moral rationale. That does not mean that this moral rationale cannot also be illuminated by a moral supra-rationale (e.g., the idea that human beings are created in the image and likeness of God). What it does mean is that it is possible to understand the religious moral rationale of the prohibition without professing this religion or making an act of faith. Nobody needs to be a Christian to reject abortion or euthanasia. As a matter of fact, there are many atheists who reject abortion and euthanasia. On the other hand, the traditional Jewish female obligations to light candles ( nerot ), to separate a portion of dough ( challah ), and to be immersed in a ritual bath or mikvah after the end of the menstrual period ( niddah ) are religious moral obligations based on a moral supra-rationale. These commitments are not against reason but just beyond reason. Traditional male circumcision is also based on a moral supra-rationale (the expression of the Covenant with God), not in a moral rationale. The obligations of the Ten Commandments, however, are chiefly based on religious moral rationales, though they could be also considered a mix of rational and supra-rational morality, as is more clearly true of the Catholic prohibition of divorce, for instance.
Political morality should be based exclusively on moral rationales. Its justification cannot depend on religious propositions. 72 So a political community should never impose a religious moral supra-rationale. Such an imposition would be against religious freedom, and beyond the power or jurisdiction of the state. The political imposition of fasting during Lent is against religious freedom, as is the political imposition of wearing a kippa or a veil, or the imposition of male circumcision. Fasting during Lent, wearing a kippa or a veil or practicing the circumcision of the male child is not against reason (to obey a rule of God is not against reason), nor is it based on a moral rationale. The political prohibition of a religious moral supra-rationale is also against religious freedom unless there is a legitimate political moral rationale for doing it. The prohibition of wearing full-face Muslim veils ( burqa and niqab ) would be an example of prohibition of a religious moral supra-rationale by a political community based on a political moral rationale: the preservation of public order and security. However, the legal prohibition of headscarves (covering the hair) would be, at least in my opinion, an example of the prohibition of a religious moral supra-rationale without enough legal justification, i.e. without a political moral rationale, and therefore, in violation of religious liberty.
Political communities could accept religious moral rationales as elements of their legal system since religious moral rationales can also be political moral rationales. That explains why a country can licitly ban abortion or same-sex marriage based on a political legal rationale even if that rationale coincides with a religious legal rationale. Such political decisions are not against religious freedom. They just reflect the fact that, say, marriage is both a religious and a political institution. That a religious community bans drinking alcohol does not mean that this religious moral rationale cannot be converted into a political moral rationale (to avoid traffic accidents) because rational religious morality can coincide with political morality in accordance with the religious freedom paradigm. The prohibition of public religious nudity (e.g., that of the naked Quakers); the legal prohibition of polygamy (a practice accepted, for instance, in Islam, as well as in some fundamentalist North American sects); or the prohibition of the old Hindu custom ( Sati ) of a Hindu widow’s self-immolating on her husband’s funeral pyre should be examples of political decisions based on moral rationales against the supra-rational or even irrational moral claims of certain religions.
In sum, legal systems should act according to a moral rationale. But they should protect under the right to religious freedom practices in accordance with religious moral claims that go beyond or even contradict reason, within the limit of public order and morality. A political community is free to give effect to a moral principle even if it coincides with a religious moral principle (e.g., prohibition of polygamy.) The fact that religious and political moral arguments converge does not make them an illicit basis for political action. This convergence is not against religious freedom. It is just a consequence of the fact that both religious and political communities are moral and that human actions can combine both political and religious motives.
The intrinsic limit of morality is reasonableness. In a political democratic community, reasonableness should be understood and applied only according to the consent of citizens. In the global human community, the minimum enforced morality could be the “morality of human rights.” The reason is that it will be very difficult to achieve a more extensive consensus about public morality. However, the lowest common moral denominator in a lower political community will be the morality to which the people of that community reasonably consent. Public morality is just a concrete specification of private morality since moral principles engage two spheres of morality, the private and the public. 73 So the smaller and more uniform the political community is, the stronger its public morality can be. Diversity is found not just in individuals but in communities. With respect to diversity, a world with thousands of different political communities with very different political, religious and moral values is much better than thousands of political communities that conform to Perry’s paradigm.
Moral rationale and political consent within a constitutional framework that protects minorities, should define the public morality of democratic societies. No more, and no less. The consent of the citizens is supported by common political values, deriving many times from secular and religious values, cultural and historical experiences. The morality of human rights could be the minimum rational morality imposed by consent in the global human community, but there is no moral justification for restricting smaller political communities to the same minimum morality. The possibility of diversification does not entail an obligation to minimize public morality in a political community. If a nudist community decided to move to downtown Atlanta that would not mean that nudism should be permitted to accommodate the new community based on diversity. Diversity is a fact, and it can be a value worthy of protection when it leads to the good of the community.
Perhaps the most radical difference between Perry’s approach to religious freedom and the approach this essay defends arises with respect to the concept of moral freedom, 74 which is the key to understanding Perry’s arguments. Religious freedom should be supported not by moral freedom in Perry’s sense (of moral independence), but by moral freedom of conscience understood as moral autonomy, a substantially different concept. Freedom of conscience is the most genuine expression of moral autonomy. Perry’s moral freedom, however, is the political consequence of applying the ideal of moral independence.
Moral independence is of its essence individual, not communitarian. It is a right against political government. It is considered a value in itself. Moral independence means an absolute personal sovereignty in ultimate questions such that a person should never accept any judgment in place of his or her own. Moral independence is based on the idea that everything that does not come from the subject is an external imposition. It is a sort of canonization of subjectivity, which calls for the practice of one’s own morality. According to moral independence, government must not rely on any justification that directly or indirectly presupposes any moral conviction about what is better or worse for a good life. Thus moral independence may be limited only by legitimate interests or objectives of the political community. 75 Moral independence leads to free morality, and according to Perry’s approach, it means no restriction beyond the morality of human rights unless there is a legitimate governmental interest or objective for the restriction. 76 Moral freedom in the sense of moral independence is based on the idea that if all human beings are morally equal, as they indeed are, all moralities should receive the same recognition by the legal system except to protect “public morals” as a “legitimate government objective.” 77
Moral freedom understood as moral autonomy instead emphasizes the indispensable relationship between human freedom and moral order in all dimensions of the human person: individual, social and transcendent. According to moral autonomy, it is possible to harmonize legality, morality, religion, and freedom. For moral autonomy, the essence (and the end) of moral freedom is the pursuit of the good, in accordance with which people can shape their own choices. As Joseph Raz rightly emphasizes: “Autonomy is valuable only if exercised in pursuit of the good.” 78 From this point of view, moral autonomy is analogous to freedom of scientific research. The purpose of freedom of research is the research as such, not autonomy or self-determination, although researchers need autonomy in their fields of research. Freedom of research serves science and not the freedom of the scientist. Freedom of research is valuable only as a means to high-quality research. For the moral independence approach, however, moral freedom will be closer to freedom of thought (if it is not a species of it), in which the essence is the freedom, the independence, regardless of the quality of the resultant thought. Moral autonomy supports moral freedom of conscience but not moral freedom in the sense of free morality.
Freedom and morality constitute a whole. The best way to practice freedom is to follow objective morality without any coercion. No conflict exists between objective morality and human freedom. Objective morality does not undermine human freedom; rather, it protects the very essence of freedom, illuminating it with the light of moral truth. Thus there is no justification for reducing moral truth to the morality of human rights; objective morality should not be politically restricted to human rights. Beyond human rights there is also objective morality; there are moral truths that are not simply about human rights. All communities, including political communities, are committed to the search for moral truth.
The reasonableness of morality does not stop at the level of human rights. Thus, once one accepts the objectivity of the morality of human rights, one should accept that this moral objectivity cannot be limited to rights. Perry’s barrier between the morality of human rights and the morality that might inform other policies or aspects of the legal system is artificial. Perry conflates the moral equality of all human beings derived from dignity 79 with the equality of morality imposed by permissiveness, since “sectarian morals” 80 and “moral unity of society” are not legitimate objectives of the political community. 81 The consequence is the call for a free morality once human rights have been preserved. Perry does not realize that the equality of the subject (all person are morally equal) does not entail the equality of the object (all moralities are equal). For in a legal system not all moralities can be equal; each legal system must ultimately define its own morality even beyond the human rights and other legitimate objectives.
The application of Perry’s doctrine of moral freedom, rather than promoting moral autonomy and thus freedom of conscience, restricts it by imposing a non-pluralistic framework. Perry argues that no political community should dictate moral convictions to its citizens. 82 However, this requirement to avoid the imposition of moral convictions is itself the dictate of a moral conviction. It dictates the moral restriction that morality beyond human rights is by definition a res privata which may be limited by government only when limiting it serves a legitimate interest or objective. It dictates the moral conviction that the status of all human beings as equally moral entails the equality of moralities, and even the free practice of one’s morality. It dictates the moral conviction that beyond the morality of human rights, morality is sectarian and can be regulated only to serve legitimate interests or objectives. Perry’s definition of legitimate interests 83 is too narrow. For if it is read in the broadest sense, it seems axiomatic that policies should serve legitimate interests, and those policies that don’t do so are bad (either because they serve illegitimate interests, or because they serve no interest at all but are pointless restrictions). For Perry’s principle to have bite, it must be read in a way that unduly restricts the range of legitimate state purposes.
Perry’s individualistic approach to moral freedom also discriminates against collective pluralism and, thus against collective self-determination in morality. The solution to the question of moral freedom requires not just striving to create a neutral environment in which individuals may define their moral convictions. It is important also to promote a real political pluralism based on the possibility of the existence of different political communities with different moral convictions at their origins. The extent of public morality has to be different in each democratic political community depending on its cultural, moral, political, legal, and religious values, with special consideration given to minorities. The scope of its collective morality is part of a political community’s identity. Thus it cannot be dramatically reduced to the morality of human rights in every case. A system of public morality based on democratic rules is always open to the possibility of exemptions to protect one’s own morality, and this is a more reas onable and effective way to combine both individual and social morality. On the one hand, the possibility of the exemptions guarantees individual moral autonomy. On the other hand, the possibility of deciding the scope of public morality guarantees collective moral autonomy.
The new shift in the paradigm of religious freedom should consist not of expanding it to include moral freedom but of distinguishing religious freedom from freedom of conscience and creating a different paradigm for each. 84 The right of freedom of conscience will expand in order to embrace all expressions of religious and non-religious-based moral autonomy.
In a secularized world, it makes more sense to talk about the individual and collective right to have and practice a religion or belief, i.e., the “right to religion,” than about freedom of religion. Freedom is obviously a necessary condition for the existence of this basic human right, but the point of the right is to protect not freedom, which is instrumental, but the religious dimension of human beings in their individual and social attitudes and expressions. This articulation of the “right to religion” gives us a deeper understanding of its internal structure.
The right to religion establishes a limit to political government by protecting the religious capacity of the human person against political monopolization. But it also protects governments from improper religious interference. The right to religion prevents governments from instrumentalizing religion by recognizing the existence of autonomous religious communities and institutions. This right is based on the idea that only religious institutions are able to deal with religion since they are communities of voluntary and not compulsory membership. And this is so because the act of faith, i.e., of adherence to a religion, requires complete freedom. It is of its very nature a free act. Nobody is to be forced to embrace the faith against his own will. 85 Ultimately, the right to religion protects citizens in their personal or communal search for ultimate truths against the imposition of any act of faith by political government, since the act of faith is an act of human dignity and not of political sovereignty. To protect religion as such is a legitimate interest of the political community but to “become religious” never will be a politically legitimate objective of the political community because it is by nature a non-religious community.
The right to religion includes all the traditional articulations of the American founders: 86 “freedom of exercise or practice,” “religious equality before the law,” “freedom from religious discrimination,” and “freedom from religion or coercion in religious matters.” It does not, however, include freedom of conscience. Freedom of conscience, though closely related, should remain distinct from the right to religion, so that all moral decisions may be protected, whether or not they are based on a religious moral rationale.
The right to religion is illuminated by the principle of positive neutrality. It is called “positive neutrality” and not just neutrality in order to differentiate it from the liberal approach of negative neutrality or indifferentism supported by Ronald Dworkin 87 and Bruce Ackerman 88 among others. The principle of positive neutrality defends the impartiality of the political community in religious issues while recognizing the intrinsic value religion 89 and political communities’ lack of competence to address issues of religious truth using political procedures, standards and tools. Proponents of positive neutrality argue that political community should be independent of any particular religion or belief, while acknowledging the necessity of religious communities and the personal value of religion. 90 Positive neutrality opens the door to the possibility of religious exceptions when positive neutral law based on a moral rationale conflicts with the right to religion. A new German law on the circumcision of male children is a prime example of an attempt to solve such a conflict. 91
The starting point of any regulation of the right to religion is that the political community is not a religious community, and that citizens were born without any religion, just as the unmarried are the starting-point for the right to marriage, and those not working, for the right to work. Each person was born without religion, without work, without marriage. Each human being is a potential religious being, a potential worker, and a potential spouse. Of course, there are differences: Work is discretionary, but essential if one has no independent wealth or support. Marriage is naturally attractive for many, but essential for the development of the political community and the stability of the family. Religion—belief in something —is irresistible, even if the object of one’s belief is discretionary. This irresistibility explains why religious socialization, a basic form of education, usually occurs within the family, in the early years of life.
The idea that the political community is not a religious community should not be in tension with the fact that many political communities constitutionally assume some religious values or traditions as a part of their identity, provided that this assumption never entails the imposition of an act of faith or adherence to a concrete religion. 92 Again, the religious good is not an objective of the political community, as is the moral good. The state’s objective should be simply to protect the religious good as a value.
In the old paradigm of religious freedom, the starting point of the right to religious freedom was that political communities were also religious communities since all citizens were religious people. So, the internal structure of the right to religious freedom, according to the old paradigm, moved from religion to non-religion: since the existence of God was socially axiomatic, everyone had the right to choose how to worship God, or even whether to reject him. The starting point was a presumption of religion. But in the new paradigm, the starting point is the presumption of non-religion. This presumption permits legal systems not to discriminate between religious and non-religious people. Nonetheless, the presumption has nothing to do with religious indifferentism. It is just a starting point. If political communities are not religious communities, the starting point should be that political citizens are not religious citizens, but that they can be religious if they want to be.
The three important processes of secularization of the law in Western countries, namely during the Roman Classical period, Modernity, and the Enlightenment, never implied a rejection of religion as such, but just a reconsideration of its position in public life, and particularly in relation to legal systems. 93 The fourth and current process of secularization can certainly clarify religion’s proper implications for legal systems to help us establish a more balanced system that protects believers and non-believers but never entails a rejection of religion in private and public life. In some ways, we can say that secularization presupposes the very idea of religion: without religion there is no secularization because religion is the object that secularization separates from politics. When secularization tries to destroy religion, secularization destroys itself. Secularization is always a movement from religion. So without religion there is no secularization. Religion is the starting point of secularization. The end of secularization is not to destroy religion as a good, but to preserve religion from politics and politics from religion through a process of mutual purification by reason. 94 The final process of secularization will end when the starting point is no longer religion but a presumption of non-religion. However, this does not mean that religion should disappear. It just means a change of perspective: religion is no longer the starting point of the right to religion, but a good to be protected by it.
In sum, the internal framework of the right to religion in the era of secularization would be the following: it is a positive right ( ius agendi ) to develop individually and collectively the religious capacity of the human being. This capacity is independent of the aims of the political community, which is by nature a non-religious community. Recognizing the right to religion, the political community treats religion as a value in itself. So the starting point should be the presumption of non-religion: the structure of the right should move from non-religion to religion.
The right to freedom of conscience, however, has a different internal structure. It deals with morality, not with religion. Since the political community is moral by definition, it is based on the presumption that all citizens are moral. Moreover, unlike the right to religious freedom, the right to freedom of conscience is supported by the principle of the priority of the person and not the principle of positive neutrality. The right to freedom of conscience preserves the moral self, moral autonomy, or moral conscience from moral requirements of the political community in cases of conflict. If the human being and the political community are both moral, the legal system should resolve conflicts between individual moral obligations and the public morality of the political community.
Freedom of conscience is the freedom required for any moral human being ( homo moralis ). It is the result of linking freedom and conscience, as a human “laboratory” for making moral decisions. Freedom of conscience legally preserves the idea of moral obligation. By recognizing that the human person can be bound by himself, i.e., by virtue of his own dignity, and not just by the command of sovereignty, legal systems are implicitly recognizing the principle of personal accountability, which is key for the development of any legal system. They are also implicitly recognizing the priority of dignity over sovereignty, the primacy of the particular over the universal, and the centrality of the person in the political community. 95
The secular legal system does not take into consideration the quality of the judgment of conscience in its relation to truth and the good, nor the potential contribution of any kind of transcendent law in the decision making process. 96 This is not its business. Freedom of conscience in secular legal systems protects the moral judgment of conscience as such since it has been formulated by a person with dignity. The exception which confirms the rule is conscientious objection. In this case, the legal system asks for a justification since every political act restricting the application of the law requires a public justification in order not to be discriminatory.
Freedom of conscience protects this minimum area of moral freedom which may not under any circumstances be violated. Where the frontier between private life and the sphere of political authority should be drawn it is “a matter of argument, indeed of haggling,” we can say with Isaiah Berlin. 97 But in drawing that frontier, we should leave space for freedom of religion as such, since political communities can develop their own public morality by restraining freedom, but they cannot develop their own public religion.
Religion and morality cannot be treated the same by legal systems, or be protected by the same legal framework. They are different ontological realities which affect legal systems in different ways. Religion calls for communities and institutions of voluntary membership, not the compulsory membership of political communities. Political communities are not religious communities. So they can be neutral on religious issues and protect the right to religious freedom. Political communities, however, are by nature moral communities; they cannot be neutral on moral issues. Therefore, moral freedom and religious freedom require a different treatment in secular legal systems. They cannot be treated as a single right.
Citizens have the right to live according to their religions and beliefs in a non-religious community such as the political community, but they cannot have the right to practice their own morality inside a community that is by definition moral, as the political community is. So there is no right to live and practice one’s morality, as Perry argues, but just a right to freedom of conscience when there is a legal conflict between a moral rule of the legal system and an individual moral obligation. Exemptions are not against equality. They are an expression of the principle of the priority of the person that should illuminate the legal systems of all democratic political communities. However, they should work in a different way when they deal with moral issues than when they deal with religious issues. This is just a consequence of the fact that the political community is moral and non-religious by definition.
There is no reason to establish the minimum of public morality required by a particular political community as the morality of human rights and legitimate interests or objectives. Perry’s argument is mistaken because it is based on the idea that the equal morality of all human beings renders equal all moralities, and that this in turn demands moral freedom in the sense of moral independence. The status of the subject, “equal moral persons,” does not entail an expansion to the object: “equality of moralities.” Pluralism and diversity as well the collective moral self-determination of communities demand instead a model in which secular reasonableness and communitarian consent establish the legal standards of public morality, even beyond the morality of human rights. Public morality as such is a legitimate interest or objective of political communities.
The required expansion of the right to religious freedom in order to protect believers and non-believers should be done contrary to what Perry suggests by separating the “right to religion” from “freedom of conscience.” These are two different, though closely related, realities. The starting point for the right to religion is the “presumption of non-religion,” but the starting point of freedom of conscience is the “presumption of morality,” since the political community is non-religious but moral. Morality is inalienable. Moral freedom should be understood as moral autonomy and not as moral independence (as Perry sees it). Moral independence inevitably leads to social permissiveness. Moral autonomy instead protects dignity in its individual and social dimensions, avoiding a sort of schizophrenia between the individual and the social.
Perry’s new right to religious and moral freedom is a political option to deal with moral and religious diversity in globalized societies, but in no case is it a compelling claim upon liberal democracies, let alone a requirement of any basic human right.
Michael J. Perry, The Right to Religious and Moral Freedom , in Religion and Human Rights. An Introduction 269 (John Witte, Jr and M. Christian Green eds., 2012) [hereinafter Religious and Moral Freedom ]; and Michael J. Perry, The Right to Religious Freedom, with Particular Reference to Same Sex Marriage , 1 J. L., Religion & State 147 (2012) [hereinafter The Right to Religious Freedom ]. In id. at 151, Perry says that he refers to the right to religious and moral freedom as just the right to religion “for the sake of economy of expression.” See also Michael J. Perry, The Right to Religious and Moral Freedom , in Michael J. Perry, Human Rights in the Constitutional Law of the United States 112 [ch. 7] (2013) [hereinafter Human Rights in the Constitutional Law] . For a revisited version of this chapter 7, see Michael J. Perry, Freedom of Conscience as Religious and Moral Freedom , J. L. & Religion (forthcoming 2014) [hereinafter Freedom of Conscience ].
Perry, Religious and Moral Freedom , supra note 1, at 270; Perry , Human Rights in the Constitutional Law , supra note 1, at 116–117.
Perry, Human Rights in the Constitutional Law , supra note 1, at 1.
See Michael J. Perry, The Idea of Human Rights (1998); Michael J. Perry, Toward a Theory of Human Rights (2007); Perry, Human Rights in the Constitutional Law , supra note 1, at 1.
Perry, Human Rights in the Constitutional Law , supra note 1, at 1–3.
Cf . Michael J. Perry, The Political Morality of Liberal Democracy , esp. at 1–6 (2010).
Cf . Perry, Religious and Moral Freedom , supra note 1, at 269–272; Perry, Human Rights in the Constitutional Law , supra note 1, at 112–118.
For a defense of this expansion, see the masterpiece Charles Taylor, A Secular Age , esp. at 1–22 (2007).
Perry, Human Rights in the Constitutional Law , supra note 1, at 120
See Rafael Domingo, A New Paradigm for Religious Freedom , 56(2) J. Church & State (forthcoming June 2014).
See infra Sections 4 and 6. Religious values and traditions can be important elements of the culture of a political community, but democratic political communities as such are by nature not religious communities since they can neither use the religious argument nor impose on citizens an act of faith or adherence to a concrete religion. Moreover, the end of the political community is not the religious good, but there is instead the moral good.
Cf . these expressions at the beginning of Alexander Hamilton, The Federalist Papers No. 31 (1788), available at www.constitution.org : “In disquisitions of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend.”
See Lon L. Fuller, The Morality of Law 189 (rev’d ed. 1969).
See Remi Bragué, The Law of God. The Philosophical History of an Idea (2007).
See now Perry, Freedom of Conscience , supra note 1.
Perry , Human Rights in the Constitutional Law , supra note 1.
Perry , supra note 6, at 123–155; Perry, Religious and Moral Freedom , supra note 1, at 269–272; Perry , Human Rights in the Constitutional Law , supra note 1, at 113–122.
Perry , supra note 6, at 123–155; Perry, “The Right to Religious Freedom, with Particular Reference to Same Sex Marriage,” in Journal of Law, Religion & State 1 (2012) 149–179; Perry , Human Rights in the Constitutional Law , supra note 1, at 136–178
See Perry , supra note 6, at 9–26; Perry, Religious and Moral Freedom , supra note 1, at 269–272; and Perry , Human Rights in the Constitutional Law , supra note 1, at 30–31.
See Perry , supra note 6, at 11 and 92.
Cf . Universal Declaration of Human Rights, art. 1.
See Perry , Human Rights in the Constitutional Law , supra note 1, at 27.
See id. at 28.
See id. at 23 and 28.
See id. at 22–23.
See id. at 105.
See Perry , supra note 6, at 62: “the human right to moral equality is the right of every human being to be treated by lawmakers and other governments officials as one who has equal inherent dignity and is inviolable.” See also Perry , Human Rights in the Constitutional Law , supra note 1, at 105–111.
See Perry , Human Rights in the Constitutional Law , supra note 1, at 106.
See Perry , supra note 6, at 65.
Id. at 88–99.
Perry , Human Rights in the Constitutional Law , supra note 1, at 116.
See id. at 116.
See Perry, Freedom of Conscience , supra note 1.
See Perry , Human Rights in the Constitutional Law , supra note 1, at 113.
See Perry, From Religious Freedom to Moral Freedom , in San Diego L.R. 47 (2010) 1001. See also Perry , supra note 6, at 88. Perry is deeply influenced by John Courtney Murray, as he expressly recognized. See John Courtney Murray, Religious Liberty. Catholic Struggles with Pluralism (5th ed., Westminster, John Knox Press, Louisville, Kentucky, 1993).
Perry , supra note 6, at 92–96.
Perry, Religious and Moral Freedom , supra note 1, at 274.
Perry , supra note 6, at 93.
Perry, Religious and Moral Freedom , supra note 1, at 272; Perry, The Right to Religious Freedom , supra note 1, at 156; Perry , Human Rights in the Constitutional Law , supra note 1, at 122.
Perry , Human Rights in the Constitutional Law , supra note 1, at 121–122; Perry, Religious and Moral Freedom , supra note 1, at 272.
Perry , supra note 6, at 75–80; Perry, Religious and Moral Freedom , supra note 1, at 273–274; Perry, The Right to Religious Freedom , supra note 1, at 159–164; Perry , Human Rights in the Constitutional Law , supra note 1, at 122.
Perry, Religious and Moral Freedom , supra note 1, at 272.
Perry , Human Rights in the Constitutional Law , supra note 1, at 125.
See id. at 125. According to Perry, a non-affirmation of moral or religious belief fits into this paradigm; for example, the US national motto “In God We Trust,” or the expression “Under God” in the Pledge of Allegiance. See a development of this argument in Perry , supra note 6, at 100–119 (ch. 6).
Perry , supra note 6, at 99.
Adopted by the United Nations General Assembly on Dec. 16, 1966, entered into force Mar. 23, 1976.
Perry, Religious and Moral Freedom , supra note 1, at 269. See Perry , Human Rights in the Constitutional Law , supra note 1, at 113.
See his argument in Perry, Religious and Moral Freedom , supra note 1, at 269–270. See also Perry , Human Rights in the Constitutional Law , supra note 1, at 113–116.
Perry , Human Rights in the Constitutional Law , supra note 1, at 136–178. See also Perry , supra note 6, at 123–155; and Perry, The Right to Religious Freedom , supra note 1, at esp. 164–179.
Perry , Human Rights in the Constitutional Law , supra note 1, at 179.
Id. at 179. See also Perry, The Right to Religious Freedom , supra note 1, at 174–179.
John Locke, A Letter Concerning Toleration , in The Selected Political Writings of John Locke 126 (Paul E. Sigmund ed., 2005).
For further information, see John Witte, Jr, The Reformation of Rights. Law, Religion, and Human Rights in Early Modern Calvinism (2007); Christianity and Human Rights (John Witte, Jr & Frank S. Alexander eds, 2010).
Cf . James Madison, Memorial and Remonstrance against Religious Assessments (1785) no. 1, available at http://religiousfreedom.lib.virginia.edu/sacred/madison_m&r_1785.html . See also the Constitution of Massachusetts (1780) pt I, art. II, drafted chiefly by John Adams, available at http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss6.html : “It is the right as well as the duty of all men in society, publicly, and at stated seasons, to worship the Supreme Being, the great creator and preserver of the universe.”
Locke, supra note 57, at 134.
Roger Williams, The Bloody Tenent of Persecution for Cause of Conscience [1644] , in On Religious Liberty. Selections from the Works of Roger Williams 85, 87 (James Calvon Davis ed., 2008).
Cf . Brian Tierney, The Idea of Natural Rights (1997); John Witte, Jr, The Reformations of Rights esp. 143–208 (2007).
See Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948); International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999U.N.T.S. 171, entered into force Mar. 23, 1976; and see the full text of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, G.A. res. 36/55, 36U.N. GAOR Supp. (No. 51) at 171, U.N. Doc. A/36/684 (1981). See also Guidelines for Review to Legislation Pertaining to Religion or Belief, Title II, § A, no. 3, adopted by the Venice Commission at 59th Plen. Sess., June 18–19, 2004, available at http://www.osce.org/odihr/13993 .
While this norm was set out in U.S. Const. amend. I (1791), it was not actively enforced in the United States until the case of Everson v. Board of Education 330U.S. 1 (1947). For an overview, see John Witte, Jr & Joel A. Nichols, Religion and the American Constitutional Experiment 125–126 (3d ed. 2011).
See Jocelyn Maclure & Charles Taylor, Secularism and Freedom of Conscience 110 (2011).
See John Rawls, Political Liberalism 385–395 (expanded ed. 2005).
In the same vein, see Robert Audi, Democratic Authority and the Separation of Church and State 12 (2012): “The point is that knowledge of moral truths does not depend on knowledge of God or religious truths (or on justification for religious or theological propositions).”
See in this vein Niklas Luhmann, A Systems Theory of Religion 123 (2013).
Ronald Dworkin, Justice for Hedgehogs (2011).
For a deep commentary on religious toleration based on this example, see Brian Leiter, Why Tolerate Religion? (2013).
Lon L. Fuller, The Morality of Law 33 (rev’d ed. 1969). In a similar way, see Nigel Simmonds, Law as a Moral Idea (2007).
See Robert Audi, Democratic Authority and the Separation of Church and State 12–13 (2011).
In the same vein, see Martin Rhonheimer, The Common Good of Constitutional Democracy 118 (William F. Murphy Jr ed., 2013).
See Perry , supra note 6, at 88–99.
See id. at 93.
See Perry , Human Rights in the Constitutional Law , supra note 1, at 122. See also Perry , supra note 6, at 91.
In this vein, see Joseph Raz, The Morality of Freedom 381 (2009 [1986]).
Perry , supra note 6, at 61.
Perry , supra note 6, at 93; Perry, Religious and Moral Freedom , supra note 1, at 273–274.
Perry, Religious and Moral Freedom , supra note 1, at 272–274.
Against this idea see Maclure & Taylor , supra note 65, at 105: “There do not seem to be any principled reasons to isolate religion and place it in a class apart from the other conceptions of the world and the good.”
For further explanation of this argument, see Rafael Domingo, A New Global Paradigm for Religious Freedom , 54(3) J. Church & State (forthcoming June 2014).
Witte, Jr & Nichols , supra note 64, at 41–70.
Ronald Dworkin, A Matter of Principle 191 (1990 [1985]).
Bruce Ackerman, Social Justice in Liberal State 10 et seq. (1980).
For the beneficial influences of religion, see Jürgen Habermas, Between Naturalism and Religion. Philosophical Essays 124–125, 209–247 (Ciaran Cronin trans., 2009).
In the same vein, on the US religious experience, see Andrew Koppelman, Defending American Religious Neutrality esp. 26–42 (2013).
Cf . the new wording of Bürgerliches Gesetzbuch [BGB] [Civil Code], Aug. 18, 1896,
In the first six months after the birth of the child persons delegated for that purpose by a religious body too may perform circumcisions according to paragraph 1, if they are especially trained for that purpose and, without being physicians, are comparatively qualified for performing circumcisions.
See further Rafael Domingo, The Metalegal God , 61(2) Ecclesiastical L.J. (forthcoming April 2014).
For further information about the process of secularization of Roman law, and the original strong relation between law and religion, see Max Kaser, Das altrömische ius. Studien zur Rechtsvorstellung und Rechtsgeschichte der Römer 22–34, 301–360 (1940); 1 Max Kaser, Das römische Privatrecht 27–29 (2d ed. 1971); Franz Wieacker, Römische Rechtsgeschichte I. Quellenkunde, Rechtsbildung, Jurisrudenz und Rechtsliteratur 310–340 (1988). For the other process of secularization, see Harold J. Berman, Law and Revolution. I. The Formation of the Western Legal Tradition (1983) and Harold J. Berman, Law and Revolution. II. The Impact of the Protestant Reformations on the Western Legal Tradition (2003).
See Benedict XVI, Religious Freedom: The Path to Peace (Jan. 1, 2011), available at http://www.vatican.va/holy_father/benedict_xvi/messages/peace/documents/hf_ben-xvi_mes_20101208_ xliv-world-day-peace_en.html .
About the priority of the person, see John Finnis, The Priority of the Person Revisited , 58 Am. J. Jurisprudence 45 (2013).
More about the idea of transcendent law, see Remi Brague, The Law of God. The Philosophical History of an Idea (2007).
Isaiah Berlin, Four Essays on Liberty 125 (1969).
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Home — Essay Samples — Religion — Religious Freedom — The Importance of Freedom of Religion
The Importance of Freedom of Religion
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Historical context, legal framework, importance for social harmony, individual well-being, challenges and threats.
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Freedom of Religion
By: History.com Editors
Updated: July 28, 2023 | Original: December 7, 2017
Freedom of religion is protected by the First Amendment of the U.S. Constitution, which prohibits laws establishing a national religion or impeding the free exercise of religion for its citizens. While the First Amendment enforces the “separation of church and state” it doesn’t exclude religion from public life. From the colonial era to present, religion has played a major role in politics in the United States. The U.S. Supreme Court over the years has ruled inconsistently on matters of religious freedom, such as the display of religious symbols in government buildings.
Religion In Colonial America
America wasn’t always a stronghold of religious freedom. More than half a century before the Pilgrims set sail in the Mayflower , French Protestants (called Huguenots) established a colony at Fort Caroline near modern-day Jacksonville, Florida .
The Spanish, who were largely Catholic and occupied much of Florida at the time, slaughtered the Huguenots at Fort Caroline. The Spanish commander wrote the king that he had hanged the settlers for “scattering the odious Lutheran doctrine in these Provinces.”
The Puritans and Pilgrims arrived in New England in the early 1600s after suffering religious persecution in England. However, the Puritans of Massachusetts Bay Colony didn’t tolerate any opposing religious views. Catholics, Quakers and other non-Puritans were banned from the colony.
Roger Williams
In 1635 Roger Williams , a Puritan dissident, was banned from Massachusetts. Williams then moved south and founded Rhode Island . Rhode Island became the first colony with no established church and the first to grant religious freedom to everyone, including Quakers and Jews.
As Virginia’s governor in 1779, Thomas Jefferson drafted a bill that would guarantee the religious freedoms of Virginians of all faiths—including those with no faith—but the bill did not pass into law.
Religion was mentioned only once in the U.S. Constitution . The Constitution prohibits the use of religious tests as qualification for public office. This broke with European tradition by allowing people of any faith (or no faith) to serve in public office in the United States.
First Amendment
In 1785, Virginia statesman (and future president) James Madison argued against state support of Christian religious instruction. Madison would go on to draft the First Amendment , a part of the Bill of Rights that would provide constitutional protection for certain individual liberties including freedom of religion, freedom of speech and the press, and the rights to assemble and petition the government.
The First Amendment was adopted on December 15, 1791. It established a separation of church and state that prohibited the federal government from making any law “respecting an establishment of religion.” It also prohibits the government, in most cases, from interfering with a person’s religious beliefs or practices.
The Fourteenth Amendment, adopted in 1868, extended religious freedom by preventing states from enacting laws that would advance or inhibit any one religion.
Religious Intolerance In the United States
Mormons , led by Joseph Smith , clashed with the Protestant majority in Missouri in 1838. Missouri governor Lilburn Boggs ordered that all Mormons be exterminated or expelled from the state.
At Haun’s Mill, Missouri militia members massacred 17 Mormons on October 30, 1838.
In the late nineteenth and early twentieth centuries, the U.S. government subsidized boarding schools to educate and assimilate Native American children. At these schools, Native American children were prohibited from wearing ceremonial clothes or practicing native religions.
While most states followed federal example and abolished religious tests for public office, some states maintained religious tests well into the twentieth century. Maryland , for instance, required “a declaration of belief in God,” for all state officeholders until 1961.
Landmark Supreme Court Cases
Reynolds v. United States (1878): This Supreme Court case tested the limits of religious liberty by upholding a federal law banning polygamy. The Supreme Court ruled that the First Amendment forbids government from regulating belief but not from actions such as marriage.
Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them to close their stores on Saturdays as well.
Sherbert v. Verner (1963): The Supreme Court ruled that states could not require a person to abandon their religious beliefs in order to receive benefits. In this case, Adell Sherbert, a Seventh-day Adventist, worked in a textile mill. When her employer switched from a five-day to six-day workweek, she was fired for refusing to work on Saturdays. When she applied for unemployment compensation, a South Carolina court denied her claim.
Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court case established the “Lemon Test” for determining when a state or federal law violates the Establishment Clause—that’s the part of the First Amendment that prohibits the government from declaring or financially supporting a state religion.
Ten Commandments Cases (2005): In 2005, the Supreme Court came to seemingly contradictory decisions in two cases involving the display of the Ten Commandments on public property. In the first case, Van Orden v. Perry , the Supreme Court ruled that the display of a six-foot Ten Commandments monument at the Texas State Capital was constitutional. In McCreary County v. ACLU , the U.S. Supreme Court ruled that two large, framed copies of the Ten Commandments in Kentucky courthouses violated the First Amendment.
Muslim Travel Bans
In 2017, federal district courts struck down the implementation of a series of travel bans ordered by President Donald J. Trump , citing that the bans—which discriminate against the citizens of several Muslim-majority nations—would violate the First Amendment’s Establishment Clause.
America’s True History of Religious Tolerance; Smithsonian.com . Religious Liberty: Landmark Supreme Court Cases; Bill of Rights Institute . First Amendment; Legal Information Institute .
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Three Essays on Religion
Author: King, Martin Luther, Jr.
Date: September 1, 1948 to May 31, 1951 ?
Location: Chester, Pa. ?
Genre: Essay
Topic: Martin Luther King, Jr. - Education
In the following three essays, King wrestles with the role of religion in modern society. In the first assignment, he calls science and religion “different though converging truths” that both “spring from the same seeds of vital human needs.” King emphasizes an awareness of God’s presence in the second document, noting that religion’s purpose “is not to perpetuate a dogma or a theology; but to produce living witnesses and testimonies to the power of God in human experience.” In the final handwritten essay King acknowledges the life-affirming nature of Christianity, observing that its adherents have consistently “looked forward for a time to come when the law of love becomes the law of life.”
"Science and Religion"
There is widespread belief in the minds of many that there is a conflict between science and religion. But there is no fundamental issue between the two. While the conflict has been waged long and furiously, it has been on issues utterly unrelated either to religion or to science. The conflict has been largely one of trespassing, and as soon as religion and science discover their legitimate spheres the conflict ceases.
Religion, of course, has been very slow and loath to surrender its claim to sovereignty in all departments of human life; and science overjoyed with recent victories, has been quick to lay claim to a similar sovereignty. Hence the conflict.
But there was never a conflict between religion and science as such. There cannot be. Their respective worlds are different. Their methods are dissimilar and their immediate objectives are not the same. The method of science is observation, that of religion contemplation. Science investigates. Religion interprets. One seeks causes, the other ends. Science thinks in terms of history, religion in terms of teleology. One is a survey, the other an outlook.
The conflict was always between superstition disguised as religion and materialism disguised as science, between pseudo-science and pseudo-religion.
Religion and science are two hemispheres of human thought. They are different though converging truths. Both science and religion spring from the same seeds of vital human needs.
Science is the response to the human need of knowledge and power. Religion is the response to the human need for hope and certitude. One is an outreaching for mastery, the other for perfection. Both are man-made, and like man himself, are hedged about with limitations. Neither science nor religion, by itself, is sufficient for man. Science is not civilization. Science is organized knowledge; but civilization which is the art of noble and progressive communal living requires much more than knowledge. It needs beauty which is art, and faith and moral aspiration which are religion. It needs artistic and spiritual values along with the intellectual.
Man cannot live by facts alone. What we know is little enough. What we are likely to know will always be little in comparison with what there is to know. But man has a wish-life which must build inverted pyramids upon the apexes of known facts. This is not logical. It is, however, psychological.
Science and religion are not rivals. It is only when one attempts to be the oracle at the others shrine that confusion arises. Whan the scientist from his laboratory, on the basis of alleged scientific knowledge presumes to issue pronouncements on God, on the origin and destiny of life, and on man's place in the scheme of things he is [ passing? ] out worthless checks. When the religionist delivers ultimatums to the scientist on the basis of certain cosomologies embedded in the sacred text then he is a sorry spectacle indeed.
When religion, however, on the strength of its own postulates, speaks to men of God and the moral order of the universe, when it utters its prophetic burden of justice and love and holiness and peace, then its voice is the voice of the eternal spiritual truth, irrefutable and invincible.,
"The Purpose of Religion"
What is the purpose of religion? 1 Is it to perpetuate an idea about God? Is it totally dependent upon revelation? What part does psychological experience play? Is religion synonymous with theology?
Harry Emerson Fosdick says that the most hopeful thing about any system of theology is that it will not last. 2 This statement will shock some. But is the purpose of religion the perpetuation of theological ideas? Religion is not validated by ideas, but by experience.
This automatically raises the question of salvation. Is the basis for salvation in creeds and dogmas or in experience. Catholics would have us believe the former. For them, the church, its creeds, its popes and bishops have recited the essence of religion and that is all there is to it. On the other hand we say that each soul must make its own reconciliation to God; that no creed can take the place of that personal experience. This was expressed by Paul Tillich when he said, “There is natural religion which belongs to man by nature. But there is also a revealed religion which man receives from a supernatural reality.” 3 Relevant religion therefore, comes through revelation from God, on the one hand; and through repentance and acceptance of salvation on the other hand. 4 Dogma as an agent in salvation has no essential place.
This is the secret of our religion. This is what makes the saints move on in spite of problems and perplexities of life that they must face. This religion of experience by which man is aware of God seeking him and saving him helps him to see the hands of God moving through history.
Religion has to be interpreted for each age; stated in terms that that age can understand. But the essential purpose of religion remains the same. It is not to perpetuate a dogma or theology; but to produce living witnesses and testimonies to the power of God in human experience.
[ signed ] M. L. King Jr. 5
"The Philosophy of Life Undergirding Christianity and the Christian Ministry"
Basically Christianity is a value philosophy. It insists that there are eternal values of intrinsic, self-evidencing validity and worth, embracing the true and the beautiful and consummated in the Good. This value content is embodied in the life of Christ. So that Christian philosophy is first and foremost Christocentric. It begins and ends with the assumption that Christ is the revelation of God. 6
We might ask what are some of the specific values that Christianity seeks to conserve? First Christianity speaks of the value of the world. In its conception of the world, it is not negative; it stands over against the asceticisms, world denials, and world flights, for example, of the religions of India, and is world-affirming, life affirming, life creating. Gautama bids us flee from the world, but Jesus would have us use it, because God has made it for our sustenance, our discipline, and our happiness. 7 So that the Christian view of the world can be summed up by saying that it is a place in which God is fitting men and women for the Kingdom of God.
Christianity also insists on the value of persons. All human personality is supremely worthful. This is something of what Schweitzer has called “reverence for life.” 8 Hunan being must always be used as ends; never as means. I realize that there have been times that Christianity has short at this point. There have been periods in Christians history that persons have been dealt with as if they were means rather than ends. But Christianity at its highest and best has always insisted that persons are intrinsically valuable. And so it is the job of the Christian to love every man because God love love. We must not love men merely because of their social or economic position or because of their cultural contribution, but we are to love them because God they are of value to God.
Christianity is also concerned about the value of life itself. Christianity is concerned about the good life for every child, man, and woman and child. This concern for the good life and the value of life is no where better expressed than in the words of Jesus in the gospel of John: “I came that you might have life and that you might have it more abundantly.” 9 This emphasis has run throughout the Christian tradition. Christianity has always had a concern for the elimination of disease and pestilence. This is seen in the great interest that it has taken in the hospital movement.
Christianity is concerned about increasing value. The whole concept of the kingdom of God on earth expressing a concern for increasing value. We need not go into a dicussion of the nature and meaning of the Kingdom of God, only to say that Christians throughout the ages have held tenaciouly to this concept. They have looked forward for a time to come when the law of love becomes the law of life.
In the light of all that we have said about Christianity as a value philosophy, where does the ministry come into the picture? 10
1. King may have also considered the purpose of religion in a Morehouse paper that is no longer extant, as he began a third Morehouse paper, “Last week we attempted to discuss the purpose of religion” (King, “The Purpose of Education,” September 1946-February 1947, in Papers 1:122).
2. “Harry Emerson Fosdick” in American Spiritual Autobiographies: Fifteen Self-Portraits, ed. Louis Finkelstein (New York: Harper & Brothers, 1948), p. 114: “The theology of any generation cannot be understood, apart from the conditioning social matrix in which it is formulated. All systems of theology are as transient as the cultures they are patterned from.”
3. King further developed this theme in his dissertation: “[Tillich] finds a basis for God's transcendence in the conception of God as abyss. There is a basic inconsistency in Tillich's thought at this point. On the one hand he speaks as a religious naturalist making God wholly immanent in nature. On the other hand he speaks as an extreme supernaturalist making God almost comparable to the Barthian ‘wholly other’” (King, “A Comparison of the Conceptions of God in the Thinking of Paul Tillich and Henry Nelson Wieman,” 15 April 1955, in Papers 2:535).
4. Commas were added after the words “religion” and “salvation.”
5. King folded this assignment lengthwise and signed his name on the verso of the last page.
6. King also penned a brief outline with this title (King, “The Philosophy of Life Undergirding Christianity and the Christian Ministry,” Outline, September 1948-May 1951). In the outline, King included the reference “see Enc. Of Religion p. 162.” This entry in An Encyclopedia of Religion, ed. Vergilius Ferm (New York: Philosophical Library, 1946) contains a definition of Christianity as “Christo-centric” and as consisting “of eternal values of intrinsic, self-evidencing validity and worth, embracing the true and the beautiful and consummated in the Good.” King kept this book in his personal library.
7. Siddhartha Gautama (ca. 563-ca. 483 BCE) was the historical Buddha.
8. For an example of Schweitzer's use of the phrase “reverence for life,” see Albert Schweitzer, “The Ethics of Reverence for Life,” Christendom 1 (1936): 225-239.
9. John 10:10.
10. In his outline for this paper, King elaborated: “The Ministry provides leadership in helping men to recognize and accept the eternal values in the Xty religion. a. The necessity of a call b. The necessity for disinterested love c. The [ necessity ] for moral uprightness” (King, “Philosophy of Life,” Outline, September 1948-May 1951).
Source: CSKC-INP, Coretta Scott King Collection, In Private Hands, Sermon file.
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Religious Freedom, Essay Example
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There is religious liberty to the documented sources on how it impacts every discussion input and their ability to understand every detailed historical analysis in America, which has led to controversial opinions. In the United States, the history of religion has seen it adopt and undergo many amendments to incorporate the establishment of diversified choices and show the importance of freedom development (Curtis 2016). The American religious society is still on a halt when pondering the main establishments in every clause of the existing religious beliefs and relative functions. The main question is relishing the existing establishment with a focus on understanding the importance of belief in religion to different human beings.
The declaration on the existing models states that someone’s belief in a religion should not be questioned on any grounds, and the declarations are only relative to function, and a unanimous decision can be handling the listed requirements on efforts planning and associational differences. A tussle in the court proved that it is important to understand a basic planning choice in understanding a positional requirement over the choices and options. Arguments by Murray shows that variated philosophical arguments can be essentially documented in a religious freedom context(Thomas, Jolyon Baraka 2019). In so making, the contented approach considers religious freedom as a natural law that protects human dignity
In Maryland, religious freedom and empowerment are used as a basic agenda in turning things around and analyzing major concepts, which serves as a philosophical concept in understanding and causing the emergence of western ideologies as a basic concept with development ideas. The state generational law is a relief system that brings firms’ belief into the proposition that the main declarations are prohibited from taking diversified state positions. The public office is a unanimous concept of position. Therefore any congress must make laws to understand the establishment of the diversified religious concepts that shall help redress the diversified differences in religious freedom. In understanding agenda, the United States safeguards interests in religion as the amendment provides freedom of expression belief and expression, and this makes the government request the damages and complaints, which has an indirect relationship right offering an establishment of religion having direct light access, which offers partial damages to complaints over religions and bars, anyone, from favoring religion against each other.
Religion is important and should be partial to all regardless of the relative social institutions. According to (Hurd, Elizabeth, and Shakman 2015), the admission selection in a school, for instance, was denied access from a radiotherapy class, which affected a major understanding of similar happenings, which questions everyone’s guiding principle as a regulated thought process and analysis. Similar happenings are observed as Dr. Doughterty tells Brandon that “religion is a field that requires to be exercised in another location.”Who guides this location addresses that religion cannot be practiced in any school despite the contributions that come with religion as a major undertaking into the required process. The major reason for undertaking various record labels is that an undertaking is anti-discriminatory, and every conscious choice is justifiable, which makes it entirely unconstitutional. Since every university should offer training to any qualified student regardless of their rational concept or choices, the federal court system calls for diversified cases on achieving this as a personal direction. This concept is key as every religious principal shall have a display showing the main regulated concepts in analyzing the main tools of practice as a major introductory element of success. This principle offers integrity when handling religion as it is direct from a morality of underlying principles of religion.
The morality concept underlies every meaning with a commitment to the underlying informational speech concept as a term for understanding the main laws of an individual as a justice system. Reiterating GeorgeWashingtons’ farewell analysis(Hurd, Elizabeth and Shakman 2015) where every character is promoted as a promotional planning occurrence, the important requirements are offered as an object of interest, and the justice system is expressed as a tool of operation, which helps to build an analysis output. In his statement, He observed that religion could be a characteristic that operates on the minimum underlying principles as an objective planning agenda, and the expressions can be limited to options and choices. This can be a leading principle in understanding the morality of options when respecting the laws and the justice systems since everything is sustained in a built-in concept model where the sustainability of the main analysis impacts the choice planning model. The views and opinions are obligated to the religious freedom development concept where there should be existing regulations controlling the practice of religion.
According to ideals made in a court system, religious freedom should only be based on ideals, not concepts. The American government shows a morality of choice and operation when putting the decisions from self-regulated ideals on how religion can be conceived to show an end of an operation, and the basic survival skills can be a religious affiliation or adaptation to interest. A choice panel is a religious description of the ascertained interest in the program, which is ideal for any American system(Kaufman, Robert and Stephan Haggard 2019). The moral society observes a diversified conflict of interest, and this religion self affects the principled agenda from a pragmatic context, and the arguments are based on a religious operation.
The liberty of religion should be preserved as a necessary anchorage with a personal rule to the free will of choice and concept operation. This basic liberty agenda has tools for activity, and this is a liberation concept with an established choice of interest, which prohibits regional influence, and this is religion affliction which offers a free exercise of the regulated thought system(Thomas, Jolyon Baraka 2019). Moreover, the congress system should make no laws regarding the religious establishment. This can offer laws respecting religious establishment and planning, which offers confirmation of interest and prohibition of the choice model on a free exercise of the amendment with an average choice. The amendment observed in the constitutional affiliation offers a free exercise of will and planning; this makes everyone assemble
American technology follows the regulated knowledge gap and influences the prohibited choice of interest with a bridge freedom of speech and the right to understand amendment issues and criteria for the First Amendment in analyzing some of the religious affiliations as congress is limited from making any laws concerning having an establishment that affects comprehension of thoughts and ideas. The amendments and petitions are important in regulated awareness.
There are existing court cases, such as the Johnson and Gregory case, where the Republican conventional agenda protested the violation of interest held in Dallas. Moreover, in the Texas statute, the desecration of objectivity is venerated in defense of the American flag, which was observed to be a religious emblem. Their reasoning was on a 5-4 basis, making it a religious symbolic speech(Thomas, Jolyon Baraka ,2019). In observation of the constitutional amendment is an offensive statement that suppresses the anger aroused solely based on apprehension, which is venerated in practices. The diversity observed in belief systems is conclusive feedback of the McCreary cases v.ACLU, which has led to the unconstitutional crisis, and this displays the ignorance of the political offices in some of the religious beliefs which led to the “establishment clause.”It prohibited access to religious beliefs, which happened to a different extent. Another case is a court examining the anti-bigamy statute in the First Amendment, which banned every regulated belief system which allowed the government to function regardless of the existing religious belief.
The American society, the statute shows that the religious practice in America is believed to be a public life crisis, and the federal government upholds this religious practice. The examination of plural marriage is a religious practice upheld in federal law courts(Lewis and Andrew., 2019). The republicans lament the religious trends in America, while the democrats hold a chain of mixed reactions over the issues. The gap issues show that religious activities in America are activity-based, and the dependence can only be manifested in a free-will organization that makes every one of the existing languages available (Kaufman, Robert R., and Stephan Haggard 2019). The religious basis is a religious belief, and organizations that seem to do good strengthen the religious organizations. American society believes that the republican institutions regulate religious institutions, making the parties have a highly regulated jurisdictional functional difference. The existing gaps are uniformly religious with a religious acumen under different religious Acumen, a religious role from a diversified societal outlook.
In conclusion, Religious Freedom in America can not be tolerated, and the amendments exist based on religious practice, which means discrimination cannot help different countries to diversify. However, a country can tolerate religion to a certain extent, which helps the government to speak against people’s discrimination with a regulated government belief. Altogether, the government should not discriminate against the existing religious difference since there exist establishment claws where there is supposed to be the authority with freedom of religion in the American government where the delegations have a standstill w with a civic authority. The constitutional basis is a provision on the amendment choices which prevents a vast majority of outcomes from any of their particular belief system, and this has been a destructive measure against involving the government in any of the existent affairs. The essential existence holds a diversified passion of existence holding a different position, but all the same, religious practice should be a liberty to every different individual.
Works Cited
Curtis, Finbarr. “The production of American religious freedom.” The Production of American Religious Freedom . New York University Press, 2016. Curtis, Finbarr. “https://www.degruyter.com/document/doi/10.18574/9781479823734/html/
Hurd, Elizabeth Shakman. “Beyond religious freedom.” Beyond Religious Freedom . Princeton University Press, 2015. https://www.degruyter.com/document/doi/10.1515/9781400873814/html/
Kaufman, Robert R., and Stephan Haggard. “Democratic decline in the United States: What can we learn from middle-income backsliding?.” Perspectives on Politics 17.2 (2019): 417-432. https://www.cambridge.org/core/journals/perspectives-on-politics/article/democratic-decline-in-the-united-states-what-can-we-learn-from-middleincome-backsliding/1D9804407AAD81287AA0CA620BABDEA6/
Lewis, Andrew R. “The inclusion-moderation thesis: The US republican party and the Christian right.” Oxford Research Encyclopedia of Politics . 2019. https://oxfordre.com/politics/display/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190228637-e-665/
Thomas, Jolyon Baraka. Faking Liberties: Religious Freedom in American-Occupied Japan . Class 200: New Studies in Reli, 2019. https://books.google.com/books?hl=en&lr=&id=WQOHDwAAQBAJ&oi=fnd&pg=PR7&dq=Religious+Freedom+in+America&ots=5VZKkyalIz&sig=b_lBgP6LeB3Jq-h4kSz6qYPWajA/
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The Importance of Religious Freedom
Freedom of religion essay introduction.
Religious freedom is a vital human right that should be ensured in all democratic nations. Without the freedom to worship or not to worship, it would be difficult to preserve other freedoms that society holds dear in America. It is for this reason that the U.S. Constitution supports the precise separation of the state and church. Moreover, the majority regard the United States as a light to the entire world serving a great example of the ethical standards that other nations should also uphold.
Since the establishment of this right, individuals of various religious confessions have often suffered discrimination mostly because of their religious beliefs. The struggle to protect religious liberty has long been closely linked to the civil rights movement. Over the past years, advocates of civil liberties and rights have repeatedly fought the attempts to restrict free religious expression and break the wall between the state and church (“Why You Should Care about Religious Freedom”, 2013).
Freedom of Religion Essay Body Paragraphs
Religious freedom benefits anyone since it creates conditions for development, peace, democratization, and other fundamental human rights. Unfortunately, nowadays, there are various instances throughout the world where violations of this most important human right occur. The protection and promotion of religious freedom is not a matter of the church’s self-interest. A lack of religious freedom generates social and economic discrimination. It decreases humans’ abilities to become agents and come together for peaceful changes. In addition, it may cause extremism and inter-community tension. If religious freedom is rejected, human prosperity and development are worsened. Upholding and promoting religious freedom is an important practice for the church to decline poverty as well as achieve development and democratization.
Contemporary policymakers have long sidelined the promotion of religious liberty as a niche concern. However, its significance cannot be understated. The opportunity to trust and distrust enables individuals to think critically and be assured in a matter of choice as opposed to restricting. A society that respects religious liberty also allows different claims of truth to compete with each other creating an atmosphere of civil respect, transparency, and debates. Regarding the basic role of religion in the culture, it makes sense to believe that a way the society treats religious assurance helps to identify its perception of human freedoms more widely.
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The U.S. model of religious liberty takes a strongly positive view of public and private religious practices. It does not mean that everything completed in the name of religious liberty is not subject to the rule of laws. However, it does indicate that the law should create as many opportunities as possible for the practice of religious faith. It is supposed that institutions and religious believers will take active participation in the life of society helping generate the public’s moral consensus and engaging in policy-making. In reality, the Founding Fathers of the United States regarded the religious engagement in generating the public morality as a vital aspect to ordered liberty and the success of their experience in self-government (Marshall, 2010).
Freedom of Religion Essay Conclusion
In modern times, religion continues to play a significant role in America’s public life. The majority of Americans continue to attach great importance to the religious practice and faith, family, raising children, and marriage in a morally supportive and prosperous environment. These values are shared in most of the highly religious nations throughout the world. Today, people regard religious freedom as their birthright. However, just a few governments around the world recognize it and far too many individuals have never enjoyed it. For many years, the U.S. Constitution has successfully safeguarded the fundamental human right of religious freedom. It is a good example for all human beings throughout the world and, undoubtedly, a great gift for the American nation that they should cherish to achieve the glorious future.
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Argumentative Essay on Religion
Here you have an argumentative essay on Religion with Pdf. Let’s Start!
Religion has been given different interpretations over time. Webster defines it as “the cause, principle, or principle of the beliefs held by zeal and faith”; Tyler (1871) describes it as belief in spiritual things. McNamara put it bluntly in the definition of religion in his statement, “Try to define religion and create conflict.” No matter what the number of meanings they have, all words have the same meaning in their meaning. It affects a personal way of life, sometimes meaning that it is part of one’s life and religion. This effect is due to a positive lifestyle, lifestyle, and energy, rather than being a barrier to religion. One can see this in the three major religions, Christianity, Buddhism, and Islam.
A summary of the history of the three religions shows how restrictive and oppressive it was for one follower. For both Catholics and Christians in the time of Jesus Christ, public declaration of one’s faith can be dangerous. Lyes (1998) states that Christians were considered criminals even though few understood why. Too often, Catholics separate themselves from practicing their faith. Says Haywood (2006), “Catholics had to practice their faith secretly, and priests were often smuggled from house to house, trying to get ahead of those who wanted the priesthood.” This situation referred to a time much later than that of Jesus Christ, when the people of England hunted for priests. The penalty for arrest is as severe as persecution.
The Muslims did not face such harsh punishments as the Christians. However, they were always considered goats, or those who should always be blamed for something unusual. This is due to the increase in population for Muslims, that Muslims are linked to terrorism, and so on. In the meantime, Buddhists have never faced such discrimination in their history. Stahl (2006) points out that Buddhists have never encountered what they call “missionary zeal” compared with other religions. Because of the specific punishments brought by faith, people find it difficult to express their feelings, such as finding peace and comfort in the personal sense of the word. Religion was restricting your freedom of speech and action.
As mentioned, religion helps to develop personal ability rather than hinders it. Soon in modern times, religious followers have been able to elevate themselves. Indeed, times have changed, though admittedly, religious discrimination still exists but not to a great extent. Christians, Buddhists, and Muslims alike are already using religion as a power source. Apart from being empowered, all religions have a human value, agreeing that each individual should be respected. Christians now have a strong belief in God and heaven, and the goal is to reach him. To achieve this goal, a person must be sensitive to their actions. In their belief in reincarnation, Buddhists have been used to treating one another with respect and dignity, fearing that the reincarnation will occur after their death. On the other hand, Muslims believe in Paradise being their partner and heaven. They think they must please their God, Allah, to enter Paradise.
Following their beliefs has helped shape each follower’s actions, regardless of religion. Vernon (2012) stated in his article that based on recent research, faith practices positively affect a person’s health. It empowered them to do good rather than evil. Fulfilling their full potential for believers can help in their spiritual lives. People’s faith in their religion, no matter how different, has become stronger and stronger, especially in modern times, despite the dark history of each religion. Times have changed dramatically, as religion plays a vital role in people’s lives.
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Home / Essay Samples / Religion / Religious Liberty / The Problem Of Religious Freedom
The Problem Of Religious Freedom
- Category: Religion , Life
- Topic: Religious Liberty , Tolerance
Pages: 1 (419 words)
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