freedom of belief and religion essay

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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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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).

Essay: The Constitution, the First Amendment, and Religious Liberty

The Constitution, the First Amendment, and Religious Liberty

Directions: Read the essay and answer the critical thinking questions.

Throughout world history, religious conflicts have been widespread and bloody. In contrast, Americans of various faiths have been able, with some exceptions, to live side by side in relative harmony. What has made the difference? Religious liberty is one important answer. To support religious liberty, the Founders worked to ensure that government was properly limited in its purpose, as well as in its power.

Virginia’s Religious Revolution

At the time the Constitution was ratified, many of the original 13 states still supported established churches. Many Americans believed that government should support religion because religion promoted virtuous lives and nurtured the social order needed for self-government.

The Anglican Church was the established denomination in Virginia, though citizens could belong to any Christian church. Baptists were a fast-growing minority in Virginia. They did not believe that the government should have so much control over religion, and did not follow Virginia’s law that required a license to preach. As a result, Baptists were arrested, fined, and sometimes physically assaulted. Baptist preachers were whipped and dunked into mud to the point of near drowning. Baptists petitioned the Virginia government to disestablish the Anglican Church, and give all churches equal rights and benefits.

In 1776, the Virginia legislature adopted a Declaration of Rights, which included a provision dealing with religion. George Mason, the Declaration’s chief draftsman, first wrote: “All Men shou’d enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience.” But a young James Madison thought Mason’s draft did not go far enough. Madison believed that the language of “toleration” meant that a government could grant—or deny—citizens the privilege of exercising religion. Madison recommended new wording affirming that free religious belief and exercise were a natural right and duty of all. The final Declaration declared “That Religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience.…”

Religious dissenters, who were not members of the established church, thought the logic of the provision would place all churches on an equal footing before the law and lead to disestablishment. However, Virginians would continue to debate the implications of this provision for the next decade.

Religious Assessments

By the mid-1780s, taxes to support the Anglican Church had been suspended. In 1784, Patrick Henry proposed a general tax called the Bill Establishing a Provision for Teachers [Ministers] of the Christian Religion. Similar to some New England state laws, citizens would choose which Christian church received their support, or the money could go to a general fund to be distributed by the state legislature.

One notable supporter of the bill was George Washington. He wrote to James Madison: “No man’s sentiments are more opposed to any kind of restraint upon religious principles than mine are; yet I must confess, that I am not amongst the number of those who are so much alarmed at the thoughts of making people pay towards the support of that which they profess, if of the denominations of Christians; or declare themselves Jews, Mahomitans or otherwise, & thereby obtain proper relief.”

Opponents of the bill included James Madison. Madison wrote the Memorial and Remonstrance (1785) opposing the proposed tax. He asserted that religion could not be forced on people, and that state support actually corrupted religion. Government properly limited, rather, would promote a civil society in which people of different faiths could maintain their beliefs according to their own consciences. Madison’s side won the debate and Henry’s religious assessments bill did not pass.

The next year, the Virginia legislature passed The Virginia Statute for Establishing Religious Freedom, written by Thomas Jefferson. This 1786 law (still on the books in Virginia) banned government interference in religion and individual beliefs. Some, but not all, other states gradually followed the example of Virginia.

The Constitution and the First Amendment

At the Constitutional Convention in 1787, the delegates did not discuss basing the government on a religion. The only mention of religion in the body of the U.S. Constitution is to ban religious tests for national office in Article 6, Section 3. Federal employees and elected officials did not have to belong to a specific church or even be religious. This provision passed without debate.

The Constitution likely would not have been ratified without the promise of a Bill of Rights. Many states sent Congress proposed amendments that would add protections from the national government. Included in the proposals was protection for freedom of religion. Congress spent weeks debating different wordings. Finally, amendments were sent to the states for ratification. The religion clauses of the First Amendment read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The first part, known as the Establishment Clause, prohibited the national government from having anything to do with a national religion. Second, the Free Exercise Clause denied the national government the power to pass laws that stopped individuals from practicing their religions.

States did not have to disestablish their churches because the Constitution and Bill of Rights only applied to the national government. Some of the states maintained established churches and many maintained religious tests for office for many years.

CRITICAL THINKING QUESTIONS

• What was the Bill Establishing a Provision for Teachers of the Christian Religion? What arguments were put forth for and against it?
• George Washington supported religious liberty, but did not oppose the proposed Bill Establishing a Provision for Teachers of the Christian Religion. How did he reconcile these positions?
• Why could states establish religions and require religious tests even after the ratification of the Constitution and Bill of Rights?
• Today, there are over 55 countries with established religions. However, a similar number of countries have moved toward religious freedom over the last 150 years. Why do you think the trend over the last 150 years has been to disestablish religions?

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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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Freedom of Religion

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Kühler, A. (2023). Freedom of Religion. In: Sellers, M., Kirste, S. (eds) Encyclopedia of the Philosophy of Law and Social Philosophy. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6730-0_692-3

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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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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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Pluralism Project Archive

Native american religious and cultural freedom: an introductory essay (2005).

I. No Word for Religion: The Distinctive Contours of Native American Religions

A. Fundamental Diversity We often refer to Native American religion or spirituality in the singular, but there is a fundamental diversity concerning Native American religious traditions. In the United States, there are more than five hundred recognized different tribes , speaking more than two hundred different indigenous languages, party to nearly four hundred different treaties , and courted by missionaries of each branch of Christianity. With traditional ways of life lived on a variety of landscapes, riverscapes, and seascapes, stereotypical images of buffalo-chasing nomads of the Plains cannot suffice to represent the people of Acoma, still raising corn and still occupying their mesa-top pueblo in what only relatively recently has come to be called New Mexico, for more than a thousand years; or the Tlingit people of what is now Southeast Alaska whose world was transformed by Raven, and whose lives revolve around the sea and the salmon. Perhaps it is ironic that it is their shared history of dispossession, colonization, and Christian missions that is most obviously common among different Native peoples. If “Indian” was a misnomer owing to European explorers’ geographical wishful thinking, so too in a sense is “Native American,”a term that elides the differences among peoples of “North America” into an identity apparently shared by none at the time the continents they shared were named for a European explorer. But the labels deployed by explorers and colonizers became an organizing tool for the resistance of the colonized. As distinctive Native people came to see their stock rise and fall together under “Indian Policy,” they resourcefully added that Native or Indian identity, including many of its symbolic and religious emblems, to their own tribal identities. A number of prophets arose with compelling visions through which the sacred called peoples practicing different religions and speaking different languages into new identities at once religious and civil. Prophetic new religious movements, adoption and adaptation of Christian affiliation, and revitalized commitments to tribal specific ceremonial complexes and belief systems alike marked religious responses to colonialism and Christian missions. And religion was at the heart of negotiating these changes. “More than colonialism pushed,” Joel Martin has memorably written, “the sacred pulled Native people into new religious worlds.”(Martin) Despite centuries of hostile and assimilative policies often designed to dismantle the structures of indigenous communities, language, and belief systems, the late twentieth century marked a period of remarkable revitalization and renewal of Native traditions. Built on centuries of resistance as well as strategic accommodations, Native communities from the 1960s on have vigorously pressed their claims to religious self-determination.

B. "Way of Life, not Religion" In all their diversity, people from different Native nations hasten to point out that their respective languages include no word for “religion”, and maintain an emphatic distinction between ways of life in which economy, politics, medicine, art, agriculture, etc., are ideally integrated into a spiritually-informed whole. As Native communities try to continue their traditions in the context of a modern American society that conceives of these as discrete segments of human thought and activity, it has not been easy for Native communities to accomplish this kind of integration. Nor has it been easy to to persuade others of, for example, the spiritual importance of what could be construed as an economic activity, such as fishing or whaling.

C. Oral Tradition and Indigenous Languages Traversing the diversity of Native North American peoples, too, is the primacy of oral tradition. Although a range of writing systems obtained existed prior to contact with Europeans, and although a variety of writing systems emerged from the crucible of that contact, notably the Cherokee syllabary created by Sequoyah and, later, the phonetic transcription of indigenous languages by linguists, Native communities have maintained living traditions with remarkable care through orality. At first glance, from the point of view of a profoundly literate tradition, this might seem little to brag about, but the structure of orality enables a kind of fluidity of continuity and change that has clearly enabled Native traditions to sustain, and even enlarge, themselves in spite of European American efforts to eradicate their languages, cultures, and traditions. In this colonizing context, because oral traditions can function to ensure that knowledge is shared with those deemed worthy of it, orality has proved to be a particular resource to Native elders and their communities, especially with regard to maintaining proper protocols around sacred knowledge. So a commitment to orality can be said to have underwritten artful survival amid the pressures of colonization. It has also rendered Native traditions particularly vulnerable to exploitation. Although Native communities continue to privilege the kinds of knowledge kept in lineages of oral tradition, courts have only haltingly recognized the evidentiary value of oral traditions. Because the communal knowledge of oral traditions is not well served by the protections of intellectual property in western law, corporations and their shareholders have profited from indigenous knowledge, especially ethnobotanical and pharmacological knowledge with few encumbrances or legal contracts. Orality has also rendered Native traditions vulnerable to erosion. Today, in a trend that linguists point out is global, Native American languages in particular are to an alarming degree endangered languages. In danger of being lost are entire ways of perceiving the world, from which we can learn to live more sustainable, balanced, lives in an ecocidal age.

D. "Religious" Regard for the Land In this latter respect of being not only economically land-based but culturally land-oriented, Native religious traditions also demonstrate a consistency across their fundamental diversity. In God is Red ,Vine Deloria, Jr. famously argued that Native religious traditions are oriented fundamentally in space, and thus difficult to understand in religious terms belonging properly tothe time-oriented traditions of Christianity and Judaism. Such a worldview is ensconced in the idioms, if not structures, of many spoken Native languages, but living well on particular landscapes has not come naturally to Native peoples, as romanticized images of noble savages born to move silently through the woods would suggest. For Native peoples, living in balance with particular landscapes has been the fruit of hard work as well as a product of worldview, a matter of ethical living in worlds where non human life has moral standing and disciplined attention to ritual protocol. Still, even though certain places on landscapes have been sacred in the customary sense of being wholly distinct from the profane and its activity, many places sacred to Native peoples have been sources of material as well as spiritual sustenance. As with sacred places, so too with many sacred practices of living on landscapes. In the reckoning of Native peoples, pursuits like harvesting wild rice, spearing fish or hunting certain animals can be at once religious and economic in ways that have been difficult for Western courts to acknowledge. Places and practices have often had both sacred and instrumental value. Thus, certain cultural freedoms are to be seen in the same manner as religious freedoms. And thus, it has not been easy for Native peoples who have no word for “religion” to find comparable protections for religious freedom, and it is to that troubled history we now turn.

II. History of Native American Religious and Cultural Freedom

A. Overview That sacred Native lifeways have only partly corresponded to the modern Western language of “religion,” the free exercise of which is ostensibly protected by the First Amendment of the U.S. Constitution , has not stopped Native communities from seeking protection of their freedom to exercise and benefit from those lifeways. In the days of treaty making, formally closed by Congress in 1871, and in subsequent years of negotiated agreements, Native communities often stipulated protections of certain places and practices, as did Lakota leaders in the Fort Laramie Treaty when they specifically exempted the Paha Sapa, subsequently called the Black Hills from land cessions, or by Ojibwe leaders in the 1837  treaty, when they expressly retained “usufruct” rights to hunt, fish, and gather on lands otherwise ceded to the U.S. in the treaty. But these and other treaty agreements have been honored neither by American citizens nor the United States government. Native communities have struggled to secure their rights and interests within the legal and political system of the United States despite working in an English language and in a legal language that does not easily give voice to Native regard for sacred places, practices, and lifeways. Although certain Native people have appealed to international courts and communities for recourse, much of the material considered in this website concerns Native communities’ efforts in the twentieth and twenty-first century to protect such interests and freedoms within the legal and political universe of the United States.

B. Timeline 1871 End of Treaty Making Congress legislates that no more treaties are to be made with tribes and claims “plenary power” over Indians as wards of U.S. government. 1887-1934 Formal U.S. Indian policy of assimilation dissolves communal property, promotes English only boarding school education, and includes informal and formalized regulation and prohibition of Native American ceremonies. At the same time, concern with “vanishing Indians” and their cultures drives a large scale effort to collect Native material culture for museum preservation and display. 1906 American Antiquities Act Ostensibly protects “national” treasures on public lands from pilfering, but construes Native American artifacts and human remains on federal land as “archeological resources,” federal property useful for science. 1921 Bureau of Indian Affairs Continuing an administrative trajectory begun in the 1880's, the Indian Bureau authorized its field agents to use force and imprisonment to halt religious practices deemed inimical to assimilation. 1923 Bureau of Indian Affairs The federal government tries to promote assimilation by instructing superintendents and Indian agents to supress Native dances, prohibiting some and limiting others to specified times. 1924 Pueblos make appeal for religious freedom protection The Council of All the New Mexico Pueblos appeals to the public for First Amendment protection from Indian policies suppressing ceremonial dances. 1924 Indian Citizenship Act Although uneven policies had recognized certain Indian individuals as citizens, all Native Americans are declared citizens by Congressional legislation. 1928 Meriam Report Declares federal assimilation policy a failure 1934 Indian Reorganization Act Officially reaffirms legality and importance of Native communities’ religious, cultural, and linguistic traditions. 1946 Indian Claims Commission Federal Commission created to put to rest the host of Native treaty land claims against the United States with monetary settlements. 1970 Return of Blue Lake to Taos Pueblo After a long struggle to win support by President Nixon and Congress, New Mexico’s Taos Pueblo secures the return of a sacred lake, and sets a precedent that threatened many federal lands with similar claims, though regulations are tightened. Taos Pueblo still struggles to safeguard airspace over the lake. 1972 Portions of Mount Adams returned to Yakama Nation Portions of Washington State’s Mount Adams, sacred to the Yakama people, was returned to that tribe by congressional legislation and executive decision. 1978 American Indian Religious Freedom Act Specifies Native American Church, and other native American religious practices as fitting within religious freedom. Government agencies to take into account adverse impacts on native religious freedom resulting from decisions made, but with no enforcement mechanism, tribes were left with little recourse. 1988 Lyng v. Northwest Indian Cemetery Protective Association Three Calif. Tribes try to block logging road in federal lands near sacred Mt. Shasta Supreme Court sides w/Lyng, against tribes. Court also finds that AIRFA contains no legal teeth for enforcement. 1990 Employment Division, Department of Human Resources v. Smith Oregon fires two native chemical dependency counselors for Peyote use. They are denied unemployment compensation. They sue. Supreme Court 6-3 sides w/Oregon in a major shift in approach to religious freedom. Scalia, for majority: Laws made that are neutral to religion, even if they result in a burden on religious exercise, are not unconstitutional. Dissent identifies this more precisely as a violation of specific congressional intent to clarify and protect Native American religious freedoms 1990 Native American Graves and Repatriation Act (NAGPRA) Mandates return of human remains, associated burial items, ceremonial objects, and "cultural patrimony” from museum collections receiving federal money to identifiable source tribes. Requires archeologists to secure approval from tribes before digging. 1990 “Traditional Cultural Properties” Designation created under Historic Preservation Act enables Native communities to seek protection of significant places and landscapes under the National Historic Preservation Act. 1993 Religious Freedom Restoration Act Concerning Free Exercise Claims, the burden should be upon the government to prove “compelling state interest” in laws 1994 Amendments to A.I.R.F.A Identifies Peyote use as sacramental and protected by U.S., despite state issues (all regs must be made in consultation with reps of traditional Indian religions. 1996 President Clinton's Executive Order (13006/7) on Native American Sacred Sites Clarifies Native American Sacred Sites to be taken seriously by government officials. 1997 City of Bourne v. Flores Supreme Court declares Religious Freedom Restoration Act unconstitutional 2000 Religious Land Use and Institutionalized Persons Act (RLUIPA) Protects religious institutions' rights to make full use of their lands and properties "to fulfill their missions." Also designed to protect the rights of inmates to practice religious traditions. RLUIPA has notably been used in a number of hair-length and free-practice cases for Native inmates, a number of which are ongoing (see: Greybuffalo v. Frank).

III. Contemporary Attempts to Seek Protection Against the backdrop, Native concerns of religious and cultural freedoms can be distinguished in at least the following ways.

• Issues of access to, control over, and integrity of sacred lands
• Free exercise of religion in public correctional and educational institutions
• Free Exercise of “religious” and cultural practices prohibited by other realms of law: Controlled Substance Law, Endangered Species Law, Fish and Wildlife Law
• Repatriation of Human Remains held in museums and scientific institutions
• Repatriation of Sacred Objects/Cultural Patrimony in museums and scientific institutions
• Protection of Sacred and Other Cultural Knowledge from exploitation and unilateral appropriation (see Lakota Elder’s declaration).

In their attempts to press claims for religious and cultural self-determination and for the integrity of sacred lands and species, Native communities have identified a number of arenas for seeking protection in the courts, in legislatures, in administrative and regulatory decision-making, and through private market transactions and negotiated agreements. And, although appeals to international law and human rights protocols have had few results, Native communities bring their cases to the court of world opinion as well. It should be noted that Native communities frequently pursue their religious and cultural interests on a number of fronts simultaneously. Because Native traditions do not fit neatly into the category of “religion” as it has come to be demarcated in legal and political languages, their attempts have been various to promote those interests in those languages of power, and sometimes involve difficult strategic decisions that often involve as many costs as benefits. For example, seeking protection of a sacred site through historic preservation regulations does not mean to establish Native American rights over access to and control of sacred places, but it can be appealing in light of the courts’ recently narrowing interpretation of constitutional claims to the free exercise of religion. Even in the relative heyday of constitutional protection of the religious freedom of minority traditions, many Native elders and others were understandably hesitant to relinquish sacred knowledge to the public record in an effort to protect religious and cultural freedoms, much less reduce Native lifeways to the modern Western terms of religion. Vine Deloria, Jr. has argued that given the courts’ decisions in the 1980s and 1990s, especially in the Lyng and Smith cases, efforts by Native people to protect religious and cultural interests under the First Amendment did as much harm as good to those interests by fixing them in written documents and subjecting them to public, often hostile, scrutiny.

A. First Amendment Since the 1790s, the First Amendment to the Constitution has held that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The former of the amendment’s two clauses, referred to as the “establishment clause” guards against government sponsorship of particular religious positions. The latter, known as the “free exercise” clause, protects the rights of religious minorites from government interference. But just what these clauses have been understood to mean, and how much they are to be weighed against other rights and protections, such as that of private property, has been the subject of considerable debate in constitutional law over the years. Ironically, apart from matters of church property disposition, it was not until the 1940s that the Supreme Court began to offer its clarification of these constitutional protections. As concerns free exercise jurisprudence, under Chief Justices Warren and Burger in the 1960s and 1970s, the Supreme Court had expanded free exercise protection and its accommodations considerably, though in retrospect too few Native communities were sufficiently organized or capitalized, or perhaps even motivated, given their chastened experience of the narrow possibilities of protection under U.S. law, to press their claims before the courts. Those communities who did pursue such interests experienced first hand the difficulty of trying to squeeze communal Native traditions, construals of sacred land, and practices at once economic and sacred into the conceptual box of religion and an individual’s right to its free exercise. By the time more Native communities pursued their claims under the free exercise clause in the 1980s and 1990s, however, the political and judicial climate around such matters had changed considerably. One can argue it has been no coincidence that the two, arguably three, landmark Supreme Court cases restricting the scope of free exercise protection under the Rehnquist Court were cases involving Native American traditions. This may be because the Court agrees to hear only a fraction of the cases referred to it. In Bowen v. Roy 476 U.S. 693 (1986) , the High Court held against a Native person refusing on religious grounds to a social security number necessary for food stamp eligibility. With even greater consequence for subsequent protections of sacred lands under the constitution, in Lyng v. Northwest Cemetery Protective Association 485 U.S. 439 (1988) , the High Court reversed lower court rulings which had blocked the construction of a timber road through high country sacred to California’s Yurok, Karok and Tolowa communities. In a scathing dissent, Harry Blackmun argued that the majority had fundamentally misunderstood the idioms of Native religions and the centrality of sacred lands. Writing for the majority, though, Sandra Day O’Connor’s opinion recognized the sincerity of Native religious claims to sacred lands while devaluing those claims vis a vis other competing goods, especially in this case, the state’s rights to administer “what is, after all, its land.” The decision also codified an interpretation of Congress’s legislative protections in the 1978 American Indian Religious Freedom Act as only advisory in nature. As of course happens in the U.S. judical system, such decisions of the High Court set new precedents that not only shape the decisions of lower courts, but that have a chilling effect on the number of costly suits brought into the system by Native communities. What the Lyng decision began to do with respect to sacred land protection, was finished off with respect to restricting free exercise more broadly in the Rehnquist Court’s 1990 decision in Employment Division, State of Oregon v. Smith 484 U.S. 872 (1990) . Despite nearly a century of specific protections of Peyotism, in an unemployment compensation case involving two Oregon substance abuse counselors who had been fired because they had been found to be Peyote ingesting members of the Native American Church , a religious organization founded to secure first amendment protection in the first place, the court found that the state’s right to enforce its controlled substance laws outweighed the free exercise rights of Peyotists. Writing for the majority, Justice Scalia’s opinion reframed the entire structure of free exercise jurisprudence, holding as constitutional laws that do not intentionally and expressly deny free exercise rights even if they have the effect of the same. A host of minority religious communities, civil liberties organizations, and liberal Christian groups were alarmed at the precedent set in Smith. A subsequent legislative attempt to override the Supreme Court, the Religious Freedom Restoration Act , passed by Congress and signed into law in 1993 by President Clinton was found unconstitutional in City of Bourne v. Flores (1997) , as the High Court claimed its constitutional primacy as interpreter of the constitution.

i. Sacred Lands In light of the ruling in Lyng v. Northwest Cemetery Protective Association (1988) discussed immediately above, there have been few subsequent attempts to seek comparable protection of sacred lands, whether that be access to, control of, or integrity of sacred places. That said, three cases leading up to the 1988 Supreme Court decision were heard at the level of federal circuit courts of appeal, and are worthy of note for the judicial history of appeals to First Amendment protection for sacred lands. In Sequoyah v. Tennessee Valley Authority , 19800 620 F.2d 1159 (6th Cir. 1980) , the court remained unconvinced by claims that a proposed dam's flooding of non-reservation lands sacred to the Cherokee violate the free excersice clause. That same year, in Badoni v. Higginson , 638 F. 2d 172 (10th Cir. 1980) , a different Circuit Court held against Navajo claims about unconstitutional federal management of water levels at a am desecrating Rainbow Arch in Utah. Three years later, in Fools Crow v. Gullet , 760 F. 2d 856 (8th Cir. 1983), cert. Denied, 464 U.S.977 (1983) , the Eighth Circuit found unconvincing Lakota claims to constitutional protections to a vision quest site against measures involving a South Dakota state park on the site.

ii. Free Exercise Because few policies and laws that have the effect of infringing on Native American religious and cultural freedoms are expressly intended to undermine those freedoms, the High Court’s Smith decision discouraged the number of suits brought forward by Native communities under constitutional free exercise protection since 1990, but a number of noteworthy cases predated the 1990 Smith decision, and a number of subsequent free exercise claims have plied the terrain of free exercise in correctional institutions. Employment Division, State of Oregon v. Smith (1990)

• Prison:Sweatlodge Case Study
• Eagle Feathers: U.S. v. Dion
• Hunting for Ceremonial Purposes: Frank v. Alaska

iii. No Establishment As the history of First Amendment jurisprudence generaly shows (Flowers), free exercise protections bump up against establishment clause jurisprudence that protects the public from government endorsement of particular traditions. Still, it is perhaps ironic that modest protections of religious freedoms of tiny minorities of Native communities have undergone constitutional challenges as violating the establishment clause. At issue is the arguable line between what has been understood in jurisprudence as governmental accommodations enabling the free exercise of minority religions and government endorsement of those traditions. The issue has emerged in a number of challenges to federal administrative policies by the National Park Service and National Forest Service such as the voluntary ban on climbing during the ceremonially significant month of June on what the Lakota and others consider Bear Lodge at Devil’s Tower National Monument . It should be noted that the Mountain States Legal Foundation is funded in part by mining, timbering, and recreational industries with significant money interests in the disposition of federal lands in the west. In light of courts' findings on these Native claims to constitutional protection under the First Amendment, Native communities have taken steps in a number of other strategic directions to secure their religious and cultural freedoms.

B. Treaty Rights In addition to constitutional protections of religious free exercise, 370 distinct treaty agreements signed prior to 1871, and a number of subsequent “agreements” are in play as possible umbrellas of protection of Native American religious and cultural freedoms. In light of the narrowing of free exercise protections in Lyng and Smith , and in light of the Court’s general broadening of treaty right protections in the mid to late twentieth century, treaty rights have been identified as preferable, if not wholly reliable, protections of religious and cultural freedoms. Makah Whaling Mille Lacs Case

C. Intellectual Property Law Native communities have occasionally sought protection of and control over indigenous medicinal, botanical, ceremonial and other kinds of cultural knowledge under legal structures designed to protect intellectual property and trademark. Although some scholars as committed to guarding the public commons of ideas against privatizing corporate interests as they are to working against the exploitation of indigenous knowledge have warned about the consequences of litigation under Western intellectual property standards (Brown), the challenges of such exploitation are many and varied, from concerns about corporate patenting claims to medicinal and agricultural knowledge obtained from Native elders and teachers to protecting sacred species like wild rice from anticipated devastation by genetically modified related plants (see White Earth Land Recovery Project for an example of this protection of wild rice to logos ( Washington Redskins controversy ) and images involving the sacred Zia pueblo sun symbol and Southwest Airlines to challenges to corporate profit-making from derogatory representations of Indians ( Crazy Horse Liquor case ).

D. Other Statutory Law A variety of legislative efforts have had either the express purpose or general effect of providing protections of Native American religious and cultural freedoms. Some, like the Taos Pueblo Blue Lake legislation, initiated protection of sacred lands and practices of particular communities through very specific legislative recourse. Others, like the 1990 Native American Graves Protection and Repatriation Act , enacted broad protections of Native American religious and cultural freedom [link to Troost case]. Culminating many years of activism, if not without controversy even in Native communities, Congress passed the American Indian Religious Freedom Act , signed into law in 1978 and amended in 1993, in order to recognize the often difficult fit between Native traditions and constitutional protections of the freedom of “religion” and ostensibly to safeguard such interests from state interference. Though much heralded for its symbolic value, the act was determined by the courts (most notably in the Lyng decision upon review of the congressional record to be only advisory in nature, lacking a specific “cause for action” that would give it legal teeth. To answer the Supreme Court's narrowing of the scope of free exercise protections in Lyng and in the 1990 Smith decision, Congress passed in 2000 the  Religious Land Use and Institutionalized Persons Act (RLUIPA)  restoring to governments the substantial burden of showing a "compelling interest" in land use decisions or administrative policies that exacted a burden on the free exercise of religion and requiring them to show that they had exhausted other possibilities that would be less burdensome on the free exercise of religion. Two other notable legislative initiatives that have created statutory protections for a range of Native community religious and cultural interests are the 1966 National Historic Preservation Act and the Native American Language Act legislation beginning to recognize the significance and urgency of the protection and promotion of indigenous languages, if not supporting such initiatives with significant appropriations. AIRFA 1978 NAGPRA 1990 [see item h. below] Native American Language Act Religious Land Use and Institutionalized Persons Act (RLUIPA)  2000 National Historic Preservation Act  [see item g below]

E. Administrative and Regulatory Policy and Law As implied in a number of instances above, many governmental decisions affecting Native American religious and cultural freedom occur at the level of regulation and the administrative policy of local, state, and federal governments, and as a consequence are less visible to those not locally or immediately affected.

F. Federal Recognition The United States officially recognizes over 500 distinct Native communities, but there remain numerous Native communities who know clearly who they are but who remain formally unrecognized by the United States, even when they receive recognition by states or localities. In the 1930s, when Congress created the structure of tribal governments under the Indian Reorganization Act, many Native communities, including treaty signatories, chose not to enroll themselves in the recognition process, often because their experience with the United States was characterized more by unwanted intervention than by clear benefits. But the capacity and charge of officially recognized tribal governments grew with the Great Society programs in the 1960s and in particular with an official U.S. policy of Indian self-determination enacted through such laws as the 1975 Indian Self Determination and Education Act , which enabled tribal governments to act as contractors for government educational and social service programs. Decades later, the Indian Gaming Regulatory Act formally recognized the authority of recognized tribal governments to engage in casino gaming in cooperation with the states. Currently, Native communities that remain unrecognized are not authorized to benefit from such programs and policies, and as a consequence numerous Native communities have stepped forward to apply for federal recognition in a lengthy, laborious, and highly-charged political process overseen by the  Bureau of Indian Affairs, Office of Federal Acknowledgment . Some communities, like Michigan’s Little Traverse Band of Odawa have pursued recognition directly through congressional legislation. As it relates to concerns of Native American religious and cultural freedom, more is at stake than the possibility to negotiate with states for the opening of casinos. Federal recognition gives Native communities a kind of legal standing to pursue other interests with more legal and political resources at their disposal. Communities lacking this standing, for example, are not formally included in the considerations of the Native American Graves Protection and Repatriation Act (item H. below).

G. Historic Preservation Because protections under the National Historic Preservation Act have begun to serve as a remedy for protection of lands of religious and cultural significance to Native communities, in light of first amendment jurisprudence since Lyng , it bears further mention here. Native communities seeking protections through Historic Preservation determinations are not expressly protecting Native religious freedom, nor recognizing exclusive access to, or control of sacred places, since the legislation rests on the importance to the American public at large of sites of historic and cultural value, but in light of free exercise jurisprudence since Lyng , historic preservation has offered relatively generous, if not exclusive, protection. The National Historic Preservation Act as such offered protection on the National Register of Historic Places, for the scholarly, especially archeological, value of certain Native sites, but in 1990, a new designation of “traditional cultural properties” enabled Native communities and others to seek historic preservation protections for properties associated “wit cultural practices or beliefs of a living community that (a) are rooted in that community’s history, and (b) are important in maintaining the continuing cultural identity of the community.” The designation could include most communities, but were implicitly geared to enable communities outside the American mainstream, perhaps especially Native American communities, to seek protection of culturally important and sacred sites without expressly making overt appeals to religious freedom. (King 6) This enabled those seeking recognition on the National Register to skirt a previous regulatory “religious exclusion” that discouraged inclusion of “properties owned by religious institutions or used for religious purposes” by expressly recognizing that Native communities don’t distinguish rigidly between “religion and the rest of culture” (King 260). As a consequence, this venue of cultural resource management has served Native interests in sacred lands better than others, but it remains subject to review and change. Further it does not guarantee protection; it only creates a designation within the arduous process of making application to the National Register of Historic Places. Pilot Knob Nine Mile Canyon

H. Repatriation/Protection of Human Remains, Burial Items, and Sacred Objects Culminating centuries of struggle to protect the integrity of the dead and material items of religious and cultural significance, Native communities witnessed the creation of an important process for protection under the 1990 Native American Graves and Repatriation Act . The act required museums and other institutions in the United States receiving federal monies to share with relevant Native tribes inventories of their collections of Native human remains, funerary objects, sacred objects, and objects of “cultural patrimony” (that is objects that were acquired from individuals, but which had belonged not to individuals, but entire communities), and to return them on request to lineal descendants or federally recognized tribes (or Native Hawaiian organizations) in those cases where museums can determine cultural affiliation, or as often happens, in the absence of sufficiently detailed museum data, to a tribe that can prove its cultural affiliation. The law also specifies that affiliated tribes own these items if they are discovered in the future on federal or tribal lands. Finally, the law also prohibits almost every sort of trafficking in Native American human remains, burial objects, sacred objects, and items of cultural patrimony. Thus established, the process has given rise to a number of ambiguities. For example, the law’s definition of terms gives rise to some difficulties. For example, “sacred objects” pertain to objects “needed for traditional Native American religions by their present day adherents.” Even if they are needed for the renewal of old ceremonies, there must be present day adherents. (Trope and Echo Hawk, 143). What constitutes “Cultural affiliation” has also given rise to ambiguity and conflict, especially given conflicting worldviews. As has been seen in the case of Kennewick Man the “relationship of shared group identity” determined scientifically by an archeologist may or may not correspond to a Native community’s understanding of its relation to the dead on its land. Even what constitutes a “real” can be at issue, as was seen in the case of Zuni Pueblo’s concern for the return of “replicas” of sacred Ahayu:da figures made by boy scouts. To the Zuni, these contained sacred information that was itself proprietary (Ferguson, Anyon, and Lad, 253). Disputes have arisen, even between different Native communities claiming cultural affiliation, and they are adjudicated through a NAGPRA Review Committee , convened of three representatives from Native communities, three from museum and scientific organizations, and one person appointed from a list jointly submitted by the other six.

I. International Law and Human Rights Agreements At least since 1923, when Haudenosaunee Iroqois leader Deskaneh made an appeal to the League of Nations in Geneva, Native communities and organizations have registered claims and concerns about religious and cultural freedoms with the international community and institutions representing it in a variety of ways. Making reference to their status as sovereign nations whose treaties with the U.S. have not been honored, frustrated with previous efforts to seek remedies under U.S. law, concerned with the capacity for constitutional protection of what are typically “group” and not individual rights, and sometimes spurned by questions about the rightful jurisdiction of the U.S., Native organizations have sought consideration of their claims before the United Nations and engaged in its consultations on indigenous rights. After years of such appeals and efforts, a nearly unanimous  United Nations General Assembly passed the United Nations Declarations on the Rights of Indigenous Peoples The 1996  Declaration of the Rights of Indigenous Peoples includes reference [article 12] to the “right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of ceremonial objects,; and the right to the repatriation of human remains.” Importantly, the Declaration does not exclude those communities whose traditions have been interrupted by colonization. Indigenous peoples are recognized as having “the right to maintain, protect and develop the past, present and future manifestations of their cultures as well as the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs.” Also specified are their rights to their languages. An offshoot of the American Indian Movement, the International Indian Treaty Council is one such organization that has shifted its attention to the international arena for protections of indigenous rights, including those of religious and cultural freedom.]]

J. Negotiated Agreements and Private Transactions Many if not most Native claims and concerns related to religious and cultural freedoms have been and will continue to be raised and negotiated outside the formal legal and regulatory structures outlined above, and thus will seldom register in public view. In light of the career of Native religious and cultural freedoms in legislative and legal arenas, Vine Deloria, Jr., has suggested the possibilities of such agreements to reach Native goals without subjecting Native communities to the difficulties of governmental interference or public scrutiny of discreet traditions (Deloria 1992a). Still, the possibilities for Native communities to reach acceptable negotiated agreements often owe to the legal and political structures to which they have recourse if negotiations fail. The possibilities of such negotiated agreements also can be shaped by the pressures of public opinion on corporate or governmental interests. Kituwah Mound Valley of the Shields/Weatherman’s Draw

IV. Selected Past Native American Religious and Cultural Freedom Court Cases

A. Land Sequoyah v. Tennessee Valley Authority 620 F. 2d 1159 (6th Cir. 1980) . Dam’s Destruction of Sacred River/Land Badoni v. Higginson 638 F 2d 172 (10th Cir. 1980) . Desecration of Rainbow Arch, Navajo Sacred Spot in Utah Fools Crow v. Gullet 706 F. 2d. 856 (8th Cir. 1983), cert. Denied, 464 U.S. 977 (1983) . State Park on top of Vision Quest site in S. Dakota Wilson v. Block 708F. 2d 735 (D.C. Cir. 1983) ; Hopi Indian Tribe v. Block; Navajo Medicine Men Assn’ v. Block Expansion of Ski Area in San Francisco Peaks, sacred to Navaho and Hopi Lyng v. Northwest Cemetery Protective Association 485 U.S. 439 (1988) Logging Road in lands sacred to Yurok, Karok, and Tolowa

B. Free Exercise Bowen v. Roy 476 U.S. 693 (1986) Native refusal of Social Security Number U.S. v. Dion 476 U.S. 734 Sacramental Eagle Hunt contra Endangered Species Act Frank v. State 604 P. 2d 1068 (Alaska 1979) Taking moose out of season for potlatch *Native American Church v. Navajo Tribal Council 272 F 2d 131 (10th Cir. 1959) Peyotists vs. Tribal Gov’t Prohibiting Peyotism People v. Woody 61 Cal.2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964) Groundbreaking recognition of Free Exercise exemption from State Ban. Employment Division, State of Oregon v. Smith 484 U.S. 872 (1990) Denial of Peyotist’s unemployment compensation held constitutional

C. Prison cases involving hair *Standing Deer v. Carlson 831 F. 2d 1525 (9th Cir. 1987). *Teterud v. Gilman 385 F. Supp. 153 (S. D. Iowa 1974) & New Rider v. Board of Education 480 F. 2d 693 (10th Cir. 1973) , cert. denied 414 U.S. 1097, reh. Denied 415 U.S. 939 *Indian Inmates of Nebraska Penitentiary v. Grammar 649 F. Supp. 1374 (D. Neb. 1986)

D. Human Remains/Repatriation *Wana the Bear v. Community Construction, Inc. 180 Cal Rptr. 423 (Ct. App. 1982). Historic Indian cemetery not a “cemetery.” *State v. Glass 273 N.E. 2d 893 (Ohio Ct. App. 1971). Ancient human remains not “human” for purposes of Ohio grave robbing statute

E. Treaty Rights Pertaining to Traditional/Sacred Practices *U.S. v. Washington 384 F. Supp. 312 (W.D. Wash. 1974) aff’d 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). Boldt Decision on Salmon Fishing *Lac Court Oreilles Band of Lake Superior Chippewa Indians v. Voight, 700 F. 2d 341 (7th Cir.) Cert. denied, 464 U.S. 805 (1983) 653 F. Supp. 1420; Fishing/Ricing/Gathering on Ceded Lands Minnesota v. Mille Lacs Band of Chippewa Indians 124 F 3d 904 affirmed. (1999) Fishing/Ricing/Gathering on Ceded Lands

V. References & Resources

Brown, Michael, Who Owns Native Culture (Cambridge, Mass: Harvard University Press, 2003). Burton, Lloyd Worship and Wilderness: Culture, Religion, and Law in the Management of Public Lands and Resources (Madison: University of Wisconsin Press, 2002).

Deloria, Vine, Jr., “Secularism, Civil Religion, and the Religious Freedom of American Indians,” American Indian Culture and Research Journal 16:9-20 (1992).

[a] Deloria, Vine, Jr., “Trouble in High Places: Erosion of American Indian Rights to Religious Freedom in the United States,”in The State of Native America: Genocide, Colonization, and Resistance , ed. M. Annette Jaimes (Boston: South End Press, 1992).

[b] Echo Hawk, Walter,  In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided ( Fulcrum Publications , 2010) . Fine-Dare, Kathleen, Grave Injustice: The American Indian Repatriation Movement and NAGPRA (Lincoln: University of Nebraska Press, 2002).

Ferguson, T.J., Roger Anyon, and Edmund J. Ladd, “Repatriation at the Pueblo of Zuni: Diverse Solutions to Complex Problems,” in Repatriation Reader , ed. Devon Mihesuah (Lincoln: University of Nebraska Press, 2000) pp. 239-265.

Gordon-McCutchan, R.C., The Taos Indians and the Battle for Blue Lake (Santa Fe, New Mexico: Red Crane Books, 1991).

Gulliford, Andrew, Sacred Objets and Sacred Places: Preserving Tribal Traditions (Boulder: University Press of Colorado, 2000).

Johnson, Greg, Sacred Claims: Repatriation and Living Tradition (Charlottesville: University of Virginia Press, 2007).

King, Thomas F., Places that Count: Traditional Cultural Properties in Cultural Resource Management (Walnut Creek, Calif: Altamira Press, 2003).

Long, Carolyn, Religious Freedom and Indian Rights: The Case of Oregon v. Smith (Lawrence: University of Kansas Press, 2001).

Maroukis, Thomas A., Peyote Road: Religious Freedom and the Native American Church (Norman: University of Oklahoma Press, 2010)

Martin, Joel, The Land Looks After Us: A History of Native American Religion (New York: Oxford University Press, 2001).

McLeod, Christopher (Producer/Director), In Light of Reverence , Sacred Lands Film Project, (Earth Image Films, La Honda Calif. 2000).

McNally, Michael D., "Native American Religious Freedom Beyond the First Amendment," in After Pluralism ed. Courtney Bender and Pamela Klassen (New York: Columbia University Press, 2010).

Mihesuah, Devon A., ed., Repatriation Reader: Who Owns American Indian Remains (Lincoln: University of Nebraska Press, 2000).

Nabokov, Peter, A Forest of Time: American Indian Ways of History (New York: Cambridge University Press, 2002).

Sullivan, Robert, A Whale Hunt (New York: Scribner, 2000).

Trope, Jack F., and Walter Echo-Hawk, “The Native American Graves Protection and Repatriation Act: Background and Legislative History,” in Repatriation Reader , ed. Devon Mihesuah (Lincoln: University of Nebraska Press, 2000), pp. 123-168.

Wenger, Tisa, We Have a Religion : The 1920s Pueblo Indian Dance Controversy and American Religious Freedom (Chapel Hill: University of North Carolina Press, 2009).

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14 Freedom of Speech and Religion

Andrew Altman is Professor of Philosophy at Georgia State University. He received his Ph.D. from Columbia University in 1977 and was a Fellow in Law and Philosophy at Harvard Law School in 1984–5. Professor Altman is author of Critical Legal Studies: A Liberal Critique (1990) and Arguing about Law: An Introduction to Legal Philosophy (2001). His articles on sexual harassment, hate speech, and hate- crimes legislation have appeared in Philosophy and Public Affairs, Ethics, and Law and Philosophy.

• Published: 02 September 2009
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Freedom of speech and religion are among the central values of modern constitutional democracies. Efforts to understand what these freedoms mean and why they are important, and to translate them into enduring institutional arrangements, constitute a major part of the history of such democracies. As the twenty-first century begins, the political and theoretical debates over these values are not the same as they were in the past. Although centuries of philosophical controversy and institutional experimentation have settled some issues, others have been raised, with some surprising twists. Constitutional democracies rest on the principle that all citizens are to be treated as free and equal persons under the law. The principle is the settled starting point for all reasonable debate about freedom of speech and religion, and it entails that the law must secure for each citizen an equal and extensive scheme of basic liberties, including the liberties of speech and religion.

1. Introduction

Since the birth of liberal democratic ideals in the seventeenth century, there has been a dramatic expansion in the range of expressive activities generally regarded as instances of the exercise of free speech. Until the twentieth century, it would have been unthinkable even to strong proponents of free speech that advocating the forcible overthrow of the government was properly considered an exercise of such freedom. Today, the prevailing view is that subversive advocacy is an exercise of free speech and should be legally protected.

Similarly, freedom of religion has expanded substantially over time. Until the twentieth century, Jews were routinely denied equal political and civil rights, even in the USA. They could not hold office in North Carolina or vote in New Hampshire until after the Civil War. Today such religious discrimination is unthinkable.

2. The Status of Basic Liberties

To describe the freedoms of speech and religion as basic liberties is to accord them a special status among the various forms of human activity. Basic liberties are understood to be those whose infringement by government or official action requires an especially strong justification (Scanlon 1972 ; Cohen 1996 ).

Many philosophers construe this requirement to mean that such infringements cannot be justified simply on grounds of social utility. Restrictions on basic liberties are not simply another cost to be weighed in the overall utility calculus. This idea fits comfortably with theories that posit, at the level of fundamental principle, rights-based constraints on the pursuit of social utility. Nagel explains that violating liberty of expression and conscience ‘is not a function of the balance of costs and benefits… while in some cases a right may be justifiably overridden by a sufficiently high threshold of costs, below that threshold its status as a right is insensitive to differences in the cost-benefit balance of respecting it in each particular case’ (1995: 84–5).

However, utilitarians need not abandon the idea of basic liberties. They will reject any theory in which the idea of rights plays a role at the level of fundamental principle but can accept the notion that there are certain types of liberty that government must have unusually strong reasons for restricting. Utilitarians might argue, for example, that some liberties are unusually productive of social utility. Or it might be claimed that government cannot be fully trusted in its utility judgements when it comes to certain liberties, so that there should be especially strong reasons before government is permitted to restrict such liberties. Mill's arguments ( 1859 /1978) can be construed as providing utilitarian reasons for demarcating basic liberties such as freedom of speech and conscience from those he regards as non-basic, such as freedom of trade.

3. Free Speech: Theoretical Issues

3.1 levels of protection.

The term ‘speech’ has come to stand for all forms of symbolic expression. For example, burning a national flag in protest over a government policy or wearing a Nazi uni- form to display support for that ideology are regarded as speech. Several current debates focus on whether certain forms of symbolic expression, such as pornography and hate speech, should receive less than full protection or even no protection at all.

Schauer (1982) usefully distinguished questions of whether a form of expression is covered by the free speech principle from questions of the degree of protection a form of speech is to receive. It is widely agreed, for example, that commercial speech is covered, but many scholars argue that it should not receive the same level of protection as the advocacy of political doctrines or as artistic expression.

Schauer's distinction can be elaborated in numerous ways. For example, Sunstein has argued for a two-tier approach in which the upper tier consists of expression that is ‘both intended and received as a contribution to public deliberation about some issue’ (1993:134). Such expression is to receive the strongest protection and is subject to regulation ‘only on the gravest showing of harm’ (1993:123–4). Lower-tier speech involves forms of expression that are not part of the process of public deliberation, such as advertising or pornography that involves children or violence against women, and its regulation would be subject to a less rigorous standard.

Sunstein's theory is a version of an approach developed in the mid-twentieth century by Meiklejohn, who argued that ‘the principle of the freedom of speech springs from the necessities of the program of self-government’ (1948: 26). Meiklejohn claimed that legal doctrine in the USA at the time was inadequately protective of speech. But critics of Sunstein's approach doubt that it is sufficiently protective of non-political forms of speech, such as works of art that are not politically intended and interpreted (Weinstein 1999 : 178).

Nonetheless, Sunstein is probably right that some way of distinguishing among forms of expression and levels of protection is needed if we are to give a cogent account of why it is legitimate for government to regulate speech reasonably regarded as calling for restriction, such as child pornography and false advertising. To extend the most stringent protection to every form of expression that counted as speech would be to tip the balance too far in favour of free speech and against the efforts of government to carry out its legitimate functions.

3.2 Speech and Conduct

The distinction between speech and conduct has also been prominent in efforts to specify a reasonable balance between the expressive liberty of the individual and the authority of government. In the past, for example, it was sometimes argued that workers who walked on picket lines or civil-rights protestors who marched in the streets were engaged in conduct and not speech. In 1971, several justices on the US Supreme Court opined that wearing in public a jacket bearing the words ‘Fuck the Draft’ amounted mainly to conduct rather than speech (Cohen v. California , 1971).

Those justices’ views are not tenable, but it has proved notoriously difficult to specify the distinction between speech and conduct. Some scholars have given up on the distinction entirely. Fish claims that ‘there is no class of utterances separable from the world of conduct’ (1994:114). Others have argued that the distinction does not track any ordinary understanding of what ‘speech’ is and that it must be construed in terms of the normative theory that best explains why communicative expression should receive special protection in the first place (Greenawalt: 1995 a). Still others have argued that a theory of communicative expression can draw the distinction without invoking normative claims about why such expression should be regarded as a basic liberty: what should count as speech is a task for linguistic theory rather than political philosophy (Tiersma 1993 ).

If it makes sense to regard freedom of speech as a basic liberty, then there must be some justifiable speech/non-speech distinction. Without a non-arbitrary distinction, it would be impossible adequately to defend why the liberty one calls ‘free speech’ should count as basic. The logical consequence would be, as Fish ( 1994 ) puts it, that ‘there's no such thing asfreespeech'—that is, no domain of expressive activity that can be impartially demarcated and that merits heightened protection.

3.3 Free Speech Scepticism

Even granting a speech/non-speech distinction, Fish is sceptical of regarding free speech as a basic liberty. He contends that the term ‘free speech’ is ‘just the name we give to verbal behavior that serves the substantive agendas we wish to advance…. Free speech … is not an independent value but a political prize’ (1994:102). Because the rhetoric of liberal democracy accords high status to expression that gets to wear the label of'free speech', the label is an object of political struggle. Accordingly, Fish counsels that, if'so-called free-speech principles have been fashioned by your enemy… contest their relevance to the issue at hand; but if you manage to refashion them in line with your purposes, urge them with a vengeance’ (1994:114).

Fish's deflationary account of free speech erases the distinction between the values ('agendas') we happen to hold and the values we ought to hold. Once that distinction is erased, all discussion and dialogue become a matter of strategic action: what counts is successfully outmanoeuvering the opponent ('your enemy') to achieve a fixed goal, not discovering which answers can be supported by the strongest reasons. But Fish does not consistently adhere to this view. He criticizes the idea that free speech is an absolute right, arguing that it blocks dialogue about issues such as hate-speech regulation, and he suggests ways in which dialogue can proceed once the blockage is removed. Fish recommends that we consider ‘each situation as it emerges’ and regard any question about speech regulation as a ‘local one’ about the risks and gains of a particular proposal (1994:111).

Such suggestions may be plausible, but they presuppose that his situational approach would yield those answers to speech issues that could be supported with the strongest reasons. Moreover, Fish begs the question of whether speech should be regarded as a basic liberty. A case-by-case approach rejects any special status for free speech, but the issue is whether there are good reasons for according speech that status. And a long line of thinkers have argued plausibly that a case-by-case method is inadequately protective of speech (Meiklejohn 1948 ; Frantz 1962 ; Ely 1980 ). Thus, Ely notes in connection with the suppression of Communism during the 1950s that majority opinion and official judgement tend to exaggerate the potential dangers posed by incidents of unpopular speech: ‘The First Amendment simply cannot stand on the shifting foundation of ad hoc evaluations of specific threat’ (Ely 1980 : 107). Ely may be wrong, but Fish fails to engage the issue with him.

Alexander and Horton express another form of scepticism, which questions the coherence of efforts to justify the status of speech as a basic liberty. They point out that such justifications necessarily appeal to general principles that (a) apply to activities that go beyond speech and (b) do not apply to some forms of speech. For example, they claim that Mill's argument that free speech facilitates the discovery of truth is vulnerable because some speech ‘contributes little toward answering … questions [and] some activities other than speech contribute a great deal’ (Alexander and Horton 1983 : 1350). More generally, the justifications for free speech do not fit the idea that speech is special and distinctive from other activities.

Alexander and Horton are right that justifications for expressive liberty will bottom out on normative principles that do not refer specifically to speech but instead involve values that are more general in scope. Yet, expression may be on some short- list of activities that such principles entail should generally be treated as basic. Thus, expression may be special, even if fundamental principles do not explicitly single it out for special treatment.

An older form of scepticism, associated with Marcuse ( 1969 ), claims that class divisions and corporate domination under capitalism make the marketplace of ideas a tool through which the powerful dominate expression and perpetuate their economic and social power. A system of expressive liberty that is ‘neutral’ among competing views is in fact repressive because background inequalities stifle the voices and manipulate the thinking of the oppressed. Marcuse argued that the existing political and economic structure ‘rigs the rules of the game’ and places at a disadvantage ‘those who stand against the established system’ (1969: 92). He favoured a structure that deliberately promoted the interests of the oppressed, even to the point of censoring views antagonistic to those interests. Only after the subversion of class society by a mass egalitarian movement would a truly neutral system of free expression be possible.

Elements of Marcuse's scepticism live on today in the work of critical race theorists and radical feminists, which will be examined below. His scepticism is also reflected in the current claim that corporate power poses a threat to expressive liberty that is as serious, if not more so, than the traditional threat of government. Some argue that the means of mass communication are so concentrated in the hands of a few corporate entities that free speech for the average person is virtually non- existent. (Kairys 1998 ). Herman and Chomsky have argued that ‘money and power are able to filter the news fit to print, marginalize dissent, and allow government and dominant private interests to get their message across to the public’ (1988: 2).

Scholarly attention to the issue of corporate domination of the means of communication is likely to increase in the coming years, as globalization and the Internet alter the ways in which people communicate. Debates will focus on whether the new technologies decentralize the power of communication or further concentrate it in the hands of transnational corporations. And those who see the latter tendency at work will argue for institutional mechanisms to confine it and to build a freer marketplace of ideas.

3.4 Arguments for Free Speech as a Basic Liberty

Among the arguments for according special status to expressive freedom is that speech is less harmful than other forms of behaviour. Speech can ‘hurt’ but not really ‘harm’. But Schauer casts doubt on the ‘lesser harm hypothesis’ (1993: 640). The subjective distress caused by speech can be as intense and long-lasting as that caused by many types of conduct. And the classification of speech-induced distress as mere ‘hurt’ involves dubious and question-begging normative judgements about the disvalue of such distress. Cohen seems right to argue, ‘Denying the cost of speech is simply insulting to those who pay it’ (1996:181).

Another line of argument revolves around the claim that government is properly subjected to great suspicion whenever it seeks to restrict expression. In this view, government has strong, self-serving motives to limit expression, especially the speech of dissenters and those with unpopular views and attitudes. In particular, government will tend to exaggerate whatever harms the expression of critics or dissenters may risk causing. Treating expressive liberty as basic acts as a prophylactic to help ensure that when government restricts expression it is not simply furthering its own interests but acting for good and legitimate reasons.

This argument from distrust contains some element of truth and plays a role in current debates over pornography, hate speech, and campaign finance reform. But standing alone the argument is incomplete. Government always has a tendency to act from self-serving motives. We need some account of what makes expression, in contrast to action in general, entitled to the status of a basic liberty. Such an account would need to explain why freedom of speech is especially valuable. One way to complete the argument is to connect expressive liberty to the discovery of truth.

Prominent among the traditional arguments for the special value of free expression is the idea that the ‘free marketplace of ideas’ facilitates the discovery and understanding of truth, especially new truths that run against the prevailing wisdom of the day (Mill: 1859 /1978).

Some contemporary thinkers argue that existing democracies do not have a truly free marketplace of ideas, because of oppression based on gender, race, and class (Matsuda 1993 ). But others respond that expressive liberty has historically proved crucial for emancipatory movements and that a system of free expression is vital for exposing and eliminating the oppression that remains (Richards 1999 ).

This debate is sometimes cast as one between advocates of wholly different political systems, but few thinkers defend censorship. The disputes are more like debates about whether the economic market for certain goods is malfunctioning and needs specific corrections than like debates about whether to eliminate the market system and replace it with state socialism. All sides can agree with Mill's claim that a system of free expression facilitates the discovery of truth, while disagreeing over whether the current system needs a ‘market correction’ when it comes to racist or pornographic speech. Still, one must wonder about the consistency of a view that claims systemic oppression, on the one hand, and then argues for reformist market corrections, on the other. Some may suggest that the only consistent radical position is one that, like Marcuse's, advocates a form of censorship.

In the current literature, perhaps the most common argument for free speech emphasizes its connection to individual autonomy. The right of free expression derives conceptually from the ‘moral sovereignty’ of the individual (Richards 1999 : 50). That sovereignty requires society to respect the conscientiously expressed views of its citizens. Dworkin ( 1996 ) takes a similar approach in arguing that freedom of speech is valuable because it is a necessary element of any society that treats its citizens as responsible moral agents who have the capacity to make up their own minds about what is good or bad, true or false.

But the autonomy arguments also threaten to undo the distinction between basic and non-basic liberties. To the extent that any activity may be an exercise of autonomy, no particular form of liberty can be accorded special status strictly on the basis of autonomy. Accordingly, the idea of autonomy must be appropriately limited or the autonomy-based arguments must be modified, if the basic/non-basic distinction is to be maintained.

Rawls argues for the special status of freedom of expression, as well as freedom of conscience and other basic liberties, by linking them to what he describes as a ‘liberal’ conception of the person. On his conception, persons have two fundamental moral powers that constitute them as free and equal: the capacity for a sense of justice and the capacity to formulate, pursue, and revise a conception of the good. For Rawls, special protections for the basic liberties ‘are essential social conditions for the adequate development and exercise of the two powers of moral personality over a complete life’ (1993: 293). It is not liberty as such but only certain forms of liberty that have the appropriate connection to the two moral powers. Accordingly, his view can be seen as a modified version of the autonomy-based approach. It is examined in greater detail in the sections below on religion.

Raz emphasizes an important autonomy-interest served by free expression for individuals with unconventional lifestyles, such as homosexuals and bisexuals. ‘The public portrayal and expression of forms of life validate the styles of life portrayed and … censoring expression normally expresses authoritative condemnation’ (Raz 1994 : 10). Thus expressive liberty helps promote the public recognition and acceptance of modes of life that lie outside the mainstream.

Another argument for free expression emphasizes its connection to democracy (Ely 1980 ). It holds that the special status offreespeech derives principally from the fact that it is indispensable for the kind of collective deliberation and decision making that is central to democratic self-government. Fiss presents an aggressive version of this approach in his interpretation of the US Constitution: ‘The autonomy protected by the First Amendment and rightly enjoyed by individuals and the press is not an end in itself, as it might be in some moral code, but is a means to further the democratic values underlying the Bill of Rights’ (Fiss 1996 : 83). Thus, for Fiss, expressive liberty is essential for the full and robust public debate that is called for by the ideal of collective self-government by the people. In other forms of the democracy-based argument, the role of free expression in curtailing government corruption and abuse is prominent.

Sunstein develops a nuanced version of the democracy-based approach, agreeing that individual autonomy is an important intrinsic value served by free expression but arguing that the dominant justification for treating free speech as a basic liberty stems from its role in the collective deliberations of democratic self- government. He writes that ‘the free speech principle should be seen through the lens of democracy’ (Sunstein 1993 : 252).

A pluralist approach would argue that many of the preceding arguments play some role in justifying the special status of free speech. Any one argument, in isolation, may be vulnerable to criticism, but in combination they provide strong reasons for treating speech as a basic liberty. Moreover, some of the values invoked by the arguments can be mutually reinforcing. Thus, Post has pointed out that democracy requires ‘a public discourse… keptfreefor the autonomous participation of individual citizens’ (1995: 7).

Still, the internal conflicts found in a pluralist approach should not be discounted. Post emphasizes the ‘serious internal tension’ between individual autonomy and collective self-government (1995: 7). Monistic theories can avoid such tensions, but, in doing so, they may simply be ignoring the untidy reality of moral life.

4. Free Speech: Applications

4.1 pornography, morality, and harm.

One of the central issues of recent years has been whether the legal regulation of adult pornography is justifiable. Some thinkers advocate regulation on the basis of the moral principles of natural law. Thus, George contends that pornography tends 'to corrupt and deprave’ by harming ‘people's capacity properly to channel sexual desire’ (1999: 189). George's conception of natural law reflects that developed by Finnis ( 1997 ), according to which sexual acts are morally wrong if they fail to con- tribute to the inherent good of heterosexual, monogamous marriage. But many thinkers reject the view of sexuality that informs the natural law position, and the argument that pornography should be regulated because it promotes immorality is not central to the current debate.

Instead, the debate has revolved around the issue whether pornography subverts gender equality. The arguments have been shaped by the feminist insight that much pornography is not simply about sexual pleasure but also about the subordination of women as a vehicle for that pleasure.

Advocates of the legal regulation of pornography typically argue that it causally contributes to sexual assaults against women and makes men indifferent to the sexual aggressions other men may commit. Such harm, they contend, is more than sufficient to justify the regulation of pornographic expression. But there is deep division among scholars on whether, and to what degree, the causal claims connecting pornography to sexual aggression are warranted by the empirical evidence, and there is little prospect of any consensus on the matter. Indeed, there is a notable lack of agreement over what degree and type of evidence would be sufficient to sustain—or rebut—the claims. Opponents of regulation will typically insist on controlled studies using the quantitative techniques of mainstream social science. Accordingly, a leading critic of regulation, Dworkin, contends that ‘no significant scientific study has concluded that pornography is a significant cause of crime’ (1996: 230).

On the other side, advocates of regulation often charge that a much broader array of evidence should be considered than is typically examined by mainstream social science. Delgado and Stefancic claim that ‘researchers fail to take account of certain types of evidence that, if counted, would tend to corroborate feminist claims’. They would include in the evidence correlations between pornography consumption and conduct considered socially ‘normal’, such as ‘aggressive flirting’ and ‘conspicuous leering’ (Delgado and Stefancic 1997 : 34). Others would expand the evidence to include the personal accounts of sexually violent men who consume pornography and women who are their victims.

Insistence on controlled studies sets the bar unreasonably high, but sole reliance on personal accounts seems insufficient. Rapists may claim that they were provoked to act by their consumption of pornography, but they have self-interested reasons for making such claims. Moreover, the psychological causes of a person's sexual impulses are hardly transparent, even—perhaps especially—to the individual himself. And Delgado and Stefancic are simply speculating when they suggest the existence of significant correlations between pornography consumption and such behaviours as ‘aggressive flirting’ and between those behaviours and sexual assaults. Moreover, even if there were agreement that pornography did causally contribute to sexual aggression against women, there would be debate over the extent and normative implications of the marginal increase in sexual assaults caused by pornography.

4.2 Pornography and Equality

Aside from their complicated empirical aspects, disputes over the regulation of pornography involve competing conceptions of gender equality. MacKinnon argues that protecting pornography under the umbrella of free speech amounts to a failure to take gender equality seriously. The serious harm done to women by degrading sexual images is discounted by arguments that pornography merits the same protection as political or artistic expression.

Dworkin ( 1996 : 237–8) argues that MacKinnon has misconstrued the idea of equality.

Because the moral environment in which we all live is in good part created by others … the question of who shall have the power to help shape that environment, and how, is of fundamental importance Only one answer is consistent with the ideals of political equality: that no one may be preventedfrominfluencing the shared moral environment through his own private choices, tastes, opinions, and example, just because these tastes or opinions dis- gust those who have the power to shut him up or lock him up.

Dworkin's argument would be more convincing if we lived in a world in which there were no systemic oppression or exclusion on the basis of such factors as gender or race. But in a non-ideal world, where the combined effect of the ‘private choices, tastes, opinions, and examples’ of many people is to put others at a severe, systemic and unjust disadvantage, it is hardly clear that equality prohibits some measure of official regulation in how those tastes and opinions are expressed. Such regulation is defended not ‘just because’ the tastes or opinions are disgusting. It is defended on the claim that the tastes and opinions contribute to systemic inequality.

Dworkin counters that such an approach would justify the regulation of television commercials, movies, and the popular media generally, which contribute to women's subordinate status. In fact, he may well be right that popular media contribute much more to that status than does pornography. His views reflect Feinberg's claim (1985) that pornography is primarily a symptom, not a cause, of violence and discrimination against women: the cause is a deeply entrenched system of'macho’ cultural values. And policing the popular media in order to eliminate gender inequality would mean a gender-totalitarian state. But it does not follow that it is wrong to regulate any form of expression that contributes to women's sub- ordination. Relatively narrow regulations that do no significant damage to the free communication of ideas and attitudes should not be ruled out of court on a priori grounds. Sunstein ( 1993 ) and Cohen ( 1996 ), for example, reasonably argue that the regulation of violent pornography should be considered permissible because it is ‘low-value’ expression that may cause gender-based injury.

4.3 Pornography as Subordination

Recently, some feminist advocates of the regulation of pornography have developed a new line of argument, contending that the production and consumption of pornography are forms of discriminatory conduct that subordinate and silence women and, as conduct, should not receive free speech protection. MacKinnon (i993) pioneered this line of argument, but Langton ( 1993 ) has developed it using the ideas of speech-act theory.

To regard pornographic depictions as acts of subordination may appear to conflate a depiction with the object it depicts. Moreover, some philosophers contend that the idea that pornography silences women is a strained metaphor for a con- testable causal claim about the social effects of pornography on women's willingness to voice their views. But Langton seeks to vindicate the plausibility of MacKinnnon's claims about subordination and silencing. Langton concedes that depictions as such cannot subordinate, but she contends that they can be used to rank certain people as inferior and legitimize discriminatory treatment against them. Such uses amount to the ‘illocutionary force’ of pornography, as Langton sees it, borrowing a concept from Austin ( 1962 ). And she suggests that there is evidence that pornographic depictions are used in our society authoritatively to rank women as subordinates and rationalize the treatment accordingly. Moreover, Langton argues that it is plausible to think that pornography is used to disable women from successfully performing certain speech-acts. For example, a woman's refusal to have sex does not count as a refusal. Her utterance of'No’ is not taken to mean ‘No’: there is no ‘uptake’, and so she is effectively silenced, even if nothing is preventing her from vocalizing certain words. The woman cannot do with those words what she is intending to do—namely, to refuse sex.

Jacobson criticizes Langton by arguing that, if women were disabled from per- forming the illocutionary act of refusing sex, then we could not describe as ‘rape’ the act of a man who ignores a women's ‘No’ and proceeds to have sex with her. Jacobson also argues that whether a woman performs the speech-act of refusal does not depend on the idiosyncratic understanding of any particular man but rather on how a ‘competent auditor’—woman or man—would understand her utterance (1995: 78). Pornography does not silence women in the way Langton suggests, Jacobson argues, because competent auditors understand that women can and do use their words to refuse sex.

Moreover, it is questionable whether consumers regard pornographic depictions as authoritative pronouncements declaring that women ought to be sexual subordinates. Sadurski argues, ‘Recognition of the pornographer's special “authority” … does not seem to be a plausible description of the attitude held by pornography's consumers toward its producers’ (1999:132). Pornography is consumed for purposes of sexual arousal, not for receiving authoritative verdicts on the proper sexual role of women.

4.4 Hate Speech in the USA

During the 1980s, a vigorous debate began over the legitimacy of regulating speech that degrades or demeans persons on the basis of such features as race, gender, and sexual orientation. In the USA, hundreds of colleges enacted speech codes that sought to restrict such speech. Many of the codes were challenged in court as inconsistent with the free speech guarantees of the Constitution and criticized by many scholars (Shiell 1998 ). But the codes were supported by other scholars, including those associated with Critical Race Theory, a movement that highlights the continued existence of racial oppression and the need for more aggressive legal and political strategies in combating it. (Lawrence 1993 ). Campus speech codes were also defended by some liberal scholars, who argued that narrowly drawn codes directed at face-to-face racist vilification were consistent with free speech principles (Grey 1991 ; Sunstein 1993 ; Greenawalt 1995 a).

Some scholars went beyond the endorsement of campus speech codes. Delgado argued for extending tort law to cover the wrong of racial insult. And Shiffrin ( 1999 : 161) contends that certain forms of racist speech should be punishable by law.

There are many parallels between the arguments for regulating hate speech and those for regulating pornography. Both sets of arguments stress the continued existence of subordination. Both point to the importance of symbolic expression in creating and perpetuating subordination. Both contend that our culture generally discounts and dismisses the harms suffered by subordinate classes. And both make their case for regulation on the basis of a principle of equal citizenship.

Yet, courts have struck down as violating free speech rights every campus speech code that has been subject to legal challenge. The decisions came from state and lower federal courts. The US Supreme Court has not ruled directly on the constitutional validity of campus codes, but in RAV v. StPaul (1992) the court did set out legal principles that would appear to condemn virtually all the codes that schools have adopted.

RAV invalidated a city ordinance that prohibited the public display of any symbol or sign ‘that arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender’ (RAV v. StPaul 1992: 379) The ordinance was interpreted as applying only to ‘fighting words', a form of expression unprotected under US law. Such words are traditionally defined as utterances that by themselves inflict injury or tend to incite immediate violence, although courts tend to read such a definition in a very narrow way.

In RAV the defendant was convicted under the ordinance after burning a cross on the lawn of a black family living in a white neighbourhood. The court threw out the conviction, without rejecting traditional fighting words doctrine. It held that the ordinance impermissibly selected certain categories of fighting words. Such selection reflected a particular viewpoint—namely, that certain kinds of fighting words are worse than others. The court ruled that such an approach amounts to impermissible viewpoint bias. Writing for the court, Justice Scalia argued that, when expression is regulated on the basis of viewpoint, it raises ‘the specter that the Government may effectively drive certain ideas or viewpoints from the market- place’ (RAV v. St Paul 1992: 387).

Shiffrin points out that one of the implications of the ruling in RAV is that it licenses a more sweeping regulation of expression than the ordinance that was struck down. The implication is that the city could enact a ‘pure’ fighting words ban that did not specify any particular category of such words. Such a ban would still cover the racist and sexist fighting words that the ordinance sought to prohibit and so ‘would drive the very same ideas and viewpoints (along with others) from the marketplace’ (Shiffrin 1999 : 63).

But Shiffrin misses the central point in Scalia's analysis: the ordinance was an effort by the city to place an official stigma on certain viewpoints and attitudes. Selecting out certain classes of fighting words for prohibition was essential to the stigmatizing purpose of the law. A ‘pure’ fighting words ban would have under- mined that purpose. And, for Scalia, the use of criminal law to stigmatize certain viewpoints violates expressive liberty.

4.5 Hate Speech in Canada

Constitutional law in the USA is unique among contemporary democracies in the degree of protection that it provides hate speech. In Canada there is a statute making it a crime to communicate in public a statement that wilfully promotes the hatred of some racial, religious, or ethnic group, and virtually every other constitutional democracy apart from the USA has similar statutes. Such laws would be invalidated as viewpoint based by courts in the USA.

In R. v Keegstra (1990) the Canadian Supreme Court accepted the claim that the nation's racial hatred statute infringed on freedom of expression, a right protected under the Canadian Charter. But it held that expressive liberty must be balanced against racial equality and that the statute represented a reasonable balancing of those two values.

Sumner defends the court's view, arguing that tolerating expression that aims at fomenting racial hatred ‘would inevitably be to confer upon it a certain degree of legitimacy. This is something that no society can afford to do, if it wishes to safe- guard the status of minorities as equal citizens’ (1994:172–3). But in a regime of free expression it is essential to distinguish between tolerating a message and conferring legitimacy upon it. Official toleration is a stance in which society extends neither its authoritative approval nor its disapproval of a message. The Canadian hate-speech ban might be justified, but not because the failure to ban hate speech legitimizes racism. Rather, the ban would be justified only because it plays an important role in securing equal citizenship for all.

4.6 Enforcing Speech Restrictions

Some critics of hate-speech laws point to the fact that they are rarely enforced and that, when they are, racial minorities are often the ones prosecuted (Magnet 1994 : 238–9). Moreover, the anonymous and borderless nature of Internet communication will make the enforcement of rules against hate speech (and pornography) increasingly difficult. The difficulties are highlighted by a case in which a French judge ordered Yahoo's auction site to prevent web-users in France from gaining access to Nazi artefacts (Kaplan 2000 ). He ruled that French law prohibited dis- playing Nazi souvenirs for sale. But many critics doubted the feasibility of implementing the ruling.

It may be that, in the age of Internet communication, many laws against hate speech and pornography will turn out to be largely symbolic expressions of a nation's commitment to racial and gender equality. Enforcement maybe uneven and difficult. Yet, the simple fact that the law has authoritatively stigmatized certain views may well have a formative influence on social attitudes. As Kahan argues, laws help to ‘furnish cues about how individuals should conduct themselves to gain approval and to avoid the stigma of deviance’ (1999:487). Hate-speech laws may send a strong signal to society affirming equality and stigmatizing bigotry. The possibility of such a signal should give pause to those who see the underenforcement of hate-speech laws as sufficient grounds for rejecting them. But the same possibility also raises concerns over whether the laws are an unjustifiable departure from viewpoint neutrality. Again, free speech principles and egalitarian ones appear in some measure to conflict.

4.7 Campaign Finance Regulation

To protect against the corruption of the political process, a number of constitutional democracies have imposed legal limits on the expenditures of candidates and/or parties. Such countries include Britain, India, Israel, and Japan. In Britain, for example, expenditure limits on candidates have been in force since 1883 and operate in conjunction with a law prohibiting anyone from spending on a candidate's behalf without his specific authorization (Law Library 1991 : 6, 72).

In the USA, though, the Supreme Court ruled in Buckley v. Valeo (1976) that expenditure restrictions violate free speech. When candidates and parties spend money on a campaign, they are expressing their political views. When government restricts the amount of money that can be spent on a campaign, it limits political speech, the kind that merits the fullest protection. And the court said that it was not a legitimate exercise of government power to restrict the speech of some in order to equalize the amount of speech across society. At the same time, the court ruled that contributions to campaigns may be legally restricted in order to prevent corruption and the appearance of corruption.

Most commentators argue that the court's distinction between contributions and expenditures is not viable. If spending money to run a campaign is a way of expressing political views, so is contributing money to a campaign. Money is contributed so that it will be spent. Greenawalt—an advocate of expenditure limits—expresses the consensus: ‘The right to spend money to disseminate ideas is a significant aspect of freedom’ (1995a: 141).

Two of the central arguments in favour of expenditure limits invoke the idea of equality. The first holds that every citizen has an equal right to participate in the political process on a fair basis. Such participation includes voting, publicly expressing one's opinions, and running for public office. The one-person/one-vote rule is generally accepted—certain exceptions aside—and scholars such as Sunstein argue that ‘limits on campaign expenditures are continuous with that rule’ (1994:1392). Unlimited campaign expenditures in combination with the high cost of running a campaign mean that a candidate needs either to be independently wealthy or to rely heavily on wealthy individuals or organizations to mount a viable run for office. Such a situation violates the equal right of political participation.

The second argument contends that democracy should provide for the equal representation of the interests of all citizens. Some interests will lose in the democratic process, for example, because they are not sufficiently compelling or are outvoted by the majority. But in the democratic process all interests should matter and be weighed, in accordance with some reasonable measure of urgency or importance. The problem with unlimited expenditures is that they result in a system that skews the weighing process in favour of the interests of the wealthy. Christiano contends that campaign financing in the USA has created a society ‘in which the wealthy and powerful private economic institutions … dominate the process of discussion’. Such a society'simply cannot live up to the egalitarian ideals of democracy’ (1996: 286–7).

A third argument for expenditure limits connects them to democracy in another way. It holds that unlimited money in politics undermines the cognitive conditions necessary for a democratic public to make well-considered political judgements. Fiss makes this argument when he refers to ‘the distorting effect that unlimited political expenditures have on politics’ and asserts that ‘what democracy exalts is not simply public choice but rather public choice made with full information and under suitable conditions of reflection’ (1996: 25, 23).

Critics of expenditure limits claim that such limits face a series of dilemmas. If the limits apply only to the expenditures of candidates, then money will flow into political parties, which will use it to influence elections. If the limits are extended to par- ties, then money will flow to independent organizations such as environmental, pro-choice, and anti-abortion groups, who will use it to influence elections. Even if limits on candidates and parties were acceptable, critics argue, limits on independent groups would clearly violate free speech. In short, limits that are consistent with free speech would be ineffective at stemming the influence of money on politics, and limits that might have some effectiveness would violate free speech rights.

Sullivan argues that the dilemma is only intensified because ‘campaign finance reform will do nothing to cure… the disproportionate influence on elections… of the owners and management of the institutional press'. More generally, because of large economic inequalities in society, ‘background wealth distortions cannot be prevented without trenching much further upon widely held First Amendment values than most reformers … are willing to go’ (1998:1086).

Sullivan does not deny that money can harm the political process. But she argues that under a system of unlimited contributions and expenditures, combined with mandatory and immediate disclosure of donors and amounts, there would be ‘reasons for modest optimism that the harm the reformers fear from unlimited political money would in fact be limited’ (1997: 689).

However, once it is assumed that the cost of campaigns creates conditions in which candidates are forced to rely unduly on the wealthy, it is difficult to see how disclosure requirements by themselves are going to limit the harm. The problem is not that we do not know exactly who is giving large sums to candidates and parties. The problem is that any viable candidate for public office will need to rely on such individuals or be independently wealthy himself. Disclosure requirements would not provide what is needed: alternative candidates free of the undue influence of large wealth.

Kaminer contends that the dilemmas generated by expenditure limits argue for public subsidies to ‘candidates who do not have personal fortunes or major party support’. The system would create a ‘financial floor, but not a ceiling, for candidates’ (Kaminer 2000 : 38). Critics will respond that it should be up to each individual to decide whether and how much to support a candidate. Public subsidies force all tax- payers to support candidates, even those against whom they may want to vote. This argument has been successful in stopping Britain from adopting a system of subsidies (Law Library 2000 : 73). However, the argument fails to consider that in a democracy political activity such as running for office is a public good: the activity helps to sustain a system whose benefits extend to all and cannot be limited to those who ‘pay’ for them through their political engagement. In such a system, the relatively minor incursion on the liberty of taxpayers is more than offset by the good of maintaining a working democracy.

But the subsidy option, regarded as an alternative to expenditure limits on candidates, supporters, and parties, does face some practical difficulties. The value of any given amount of money in a campaign is relative to the amount spent by one's opponent and her supporters. In the absence of expenditure limits, it is difficult to see how any realistic version of a subsidy programme would, by itself, significantly restrain the influence of money. Presidential elections illustrate the point: despite the fact that the law provides presidential candidates with generous subsidies, expenditures by national parties have had an enormous influence on presidential politics.

In 1843, Marx wrote that there was a fundamental conflict in capitalist societies between the political principle of equal citizenship and the economic principle that individuals have a right to the unlimited accumulation of wealth. And Marx was right that economic inequality could subvert political equality. But the conflict can be mitigated, short of instituting socialism. Expenditure limits and public subsidies are among the devices that can be used in combination to promote political equality.

5. Religious Liberty: Theoretical Issues

5.1 what is religion.

Scholars of religion are sometimes sceptical of efforts to define ‘religion’. But even some sceptics could agree that the term can be reasonably understood as essentially referring to rituals, beliefs, and ways of life oriented towards a realm of existence or experience regarded as radically different from the realm of ordinary life and as carrying ultimate normative authority (King 1987 : 283). This type of radical otherness is sometimes described as the sacred, and contrasted with the secular or profane.

While religions cannot be reduced to propositional attitudes, they often incorporate what Rawls ( 1993 ) calls ‘comprehensive doctrines’—that is, normative and metaphysical ideas about the meaning and value of human life. These doctrines are the grounds on which people orient their conduct, containing conceptions and principles that are taken to have normative authority over the full scope of human life. When the conceptions involve a sacred/secular contrast and vest supreme authority in the sacred, the doctrines are religious. When comprehensive doctrines vest supreme normative authority in a realm that is not conceived as sacred, they are secular.

Greenawalt objects to essentialist definitions of'religion’ on the grounds that they are too restrictive and vulnerable to a bias that favours familiar religions over unfamiliar ones. He contends that we should fix the reference of the term by beginning with the features of paradigmatic religions and then seeing ‘how closely disputed beliefs and practices resemble clear instances’. He insists that ‘no single feature is indispensable for religion’ (Greenawalt 2000 : 219).

Greenawalt ( 2000 : 207) is right to warn that defining ‘religion’ carries the danger that the familiar will be favoured over the unfamiliar, and his analogical approach seeks to accommodate the many different forms that religion can assume. But the requirement of an orientation towards the sacred leaves room for an abundance of varieties of religion. Moreover, Greenawalt's analogical approach carries the very danger he seeks to avoid: if we begin with paradigm cases and then look for other instances that are close enough to those cases, the extension we ultimately attribute to ‘religion’ may well be skewed by the fact that our starting point consists of those religions that are familiar to us. This skewing is especially likely when there are no articulated standards specifying the respects in which disputed cases must be judged similar to the paradigmatic ones.

Such bias may well be reflected in the statement of a German official that Scientology was ‘a multinational combine rather than a religion’ (US State Department 2000). For that official, the extensive business operations of Scientology may have made it too different from his paradigmatic religions. In contrast, ‘orientationto-the-sacred’ clearly counts Scientology as a religion, notwithstanding its business ventures.

If religion is to be understood in terms of paradigm cases plus whatever is sufficiently similar to those cases, then it would be better to enumerate the respects in terms of which similarity is to be judged. Thus, Alston takes the paradigm approach but also lists nine characteristic features of religion, such as belief in supernatural beings, the sacred/profane distinction, prayer and other rituals, and a life-organizing world view (1964: 88). To be a religion requires possessing some unspecified number of such features.

Greenawalt would probably be sympathetic to Alston's approach, as it is consis- tent with an important practical concern of his. Greenawalt thinks that the law should not define religion in terms of an orientation towards the sacred because it would omit groups such as Ethical Culture societies, which are organized around secular comprehensive doctrines. In his view, Ethical Culture merits equal legal protection with doctrines that invoke the sacred. But the US Constitution explicitly protects religious liberty, not freedom of conscience more broadly. So constitutional protection for Ethical Culture seems to require that it be a religion.

But, instead of stretching the idea of religion in order to gain protection for secular comprehensive doctrines, one could argue that the normative principles justifying protection for religion also justify protection for freedom of conscience more broadly. And one could contend that a constitution should be construed in terms of its underlying normative principles. Such an argument could gain protection for secular doctrines, but it would also cast doubt on the idea that there is, as a matter of fundamental political principle, something special about religion. That doubt is explored in the next section.

5.2 Arguments for Religious Liberty as Basic

Let us suppose that religion involves an inner orientation towards the sacred and its outward expression in speech, rituals, and forms of life. And let us grant that the freedoms of conscience, speech, and association are basic. Because such freedoms do not distinguish the religious from the secular, we can then ask, ‘Is religious liberty no more than a particular instance of the general freedoms of conscience, speech, and association?’ Or is religious liberty an independent basic liberty?

The traditional arguments for religious freedom lend credibility to the idea that it is not an independent basic liberty. One prominent argument is that we should be especially distrustful of government when it comes to regulations that infringe on religious activity. Government has a tendency to attribute without good grounds malignant secular effects to the practices of unpopular and minority religions, or to exaggerate relatively trivial effects. Protecting religious liberty as basic guards against such ungrounded and biased judgements.

Such an argument parallels the one for regarding free speech as basic but does not establish any difference in principle between religious and non-religious expression. Government tends to attribute malignant effects to any system or association that it regards as a threat to its power or its view of the social good, regardless of religious or secular character of the threat. Whether religious ‘threats’ are perceived as more dangerous is an empirical question to be answered with respect to a particular social-historical context. And in modern times unpopular secular doctrines have also been subject to unwarranted claims of dangerousness.

Another traditional argument for treating religious liberty as basic asserts that leaving government free to restrict religion tends to foment civil strife. Failure to protect religious liberty raises the stakes in politics, and the struggle among the different sects will intensify as they vie for state power. This argument traces back to Locke: ‘it is not the diversity of opinions, (which cannot be avoided) but the refusal of toleration to those that are of different opinion… that has produced all the bustles and wars’ (1689/1983: 55).

Nonetheless, the argument does not establish any basis for religious liberty that is independent of arguments for secular freedom of expression and association. Secular strife is also a danger when government can suppress secular views and organizations. Moreover, the question whether religion is the most important threat to civil peace is empirical, to be addressed by each society and its particular circumstances (Smith 1991 ; Schwarzchild 1993 ).

Yet another argument stresses the importance of religion in promoting the civic virtues essential to a liberal democratic order (Galston 1991 ). But this argument elides the fact that religions take myriad forms, only some of which promote democratic virtue. Resting arguments for religious liberty on empirical claims that cannot be generalized to all religions is an unpromising strategy for establishing that religion merits greater protection than non-religion, as a matter of fundamental principle.

In the current literature, perhaps the central argument for religious liberty links it to individual autonomy. This should not be surprising, since the main argument for free speech is also autonomy based. Richards emphasizes the common root of expressive and religious liberty in the ‘inalienable right to conscience, i.e., sincere convictions about matters of fact and value’ (1999: 23). But this argument clearly erases the distinction between religious and secular conduct. Sincere convictions that form the basis of action can be about the sacred or about the secular.

Nevertheless, it remains possible that religious motivations have normatively important features that they share with some, but not all, secular motivations. Rawls's work suggests that actions motivated by a person's comprehensive doctrine—religious or secular—merit heightened protection because of the connection the actions have to the full development and exercise of the two moral powers of personhood: the capacity for a sense of justice and the ability to formulate, pursue, and revise a conception of the good (1993). Those powers are exercised, not whenever one acts on any given belief he happens to hold, but only when the belief is an element of the individual's ultimate normative orientation towards life. The term ‘liberty of conscience’ is appropriate in this regard, as a person's conscience is reasonably conceived as her most central normative conceptions.

Sandel criticizes the Rawlsian conception of personhood on the ground that it ‘depreciates the claims of those for whom religion is not an expression of autonomy but a matter of conviction unrelated to choice'. For many religious believers, their faith is not a matter of autonomous choice but rather reflects a categorical duty that they see as ‘indispensable to their identity’ (Sandel 1996 : 67). But Sandel misses the mark. The claims of those who understand their faith as essential to their identity are given no less weight than the claims of those who see their faith as the object of an autonomous choice. The Rawlsian conception is that, however an individual understands her faith, her right to express that faith is a basic liberty. It is up to the individual to say what is, or is not, essential to her identity. That liberal right is no less important when the individual declares, ‘Here I stand. I can do no other.’

Freedom of religion is rightly considered to be a basic liberty, but there is nothing special about religion at the level of fundamental political principle. Rather, religious liberty is basic because religion instantiates more general aspects of human life and activity that merit such protection: speech, association, and conscience.

6. Religious Liberty: Applications

6.1 the accommodation debates.

In 1972 the US Supreme Court held that Amish parents had afree-exerciseright to withdraw their children from public school before the statutory minimum age of 16 (Wisconsin v. Yoder , 1972). Yet today there is much disagreement whether the exemption is illegitimate because it denies Amish females the opportunity to gain the knowledge needed to make an informed choice about remaining part of a patriarchal culture. In 1989, after considerable controversy, the French government exempted Muslim girls from the school dress code to allow them to wear their religion's traditional headscarf, the chador. Yet, disagreement over the wearing of the headscarf in school continues today in much of Western Europe (Seiple 2000 : 10). In 1990, the US Supreme Court ﹛Employment Division v. Smith , 1990) rejected the claim of members of the Native American church that they had a constitutional right to engage in their religion's ritual smoking of peyote. In response, Congress enacted a new law better to protect religious groups, and the Supreme Court in turn invalidated that law (Boerne v. Flores , 1997).

These cases all involve debates over ‘religious accommodation'—that is, claims to an exemption, based on one's religion, from an otherwise valid, general law. Many scholars contend that, in a broad range of circumstances, religious liberty requires government to provide accommodations when some general law or policy comes into conflict with a religiously motivated activity.

Advocates of extensive religious accommodations often look for reasons to show why religion is especially important and should be accorded privileged status. One prominent line of argument contends that religions provide grounds for resisting unjust and tyrannical states by recognizing a normative authority superior to secular authority (Carter 1993 : 134; McConnell 2000 : 1250). However, as with other arguments we have canvassed, this one fails to distinguish religious from secular comprehensive doctrines.

A distinct line of argument for accommodation rests not on the contention that religion is special but rather on the idea that accommodation is necessary to secure equal citizenship for religious persons (McConnell 1992 ). Thus, Galeotti argues that equal respect requires French officials to accommodate the Muslim schoolgirls. She contends that the case involved ‘the quest for public recognition’ by a religious minority and that such recognition is a ‘fundamental demand of equality’ (Galeotti 1993 : 597)- This interest in public recognition is similar to the one Raz emphasized in arguing that free speech is important to those with unconventional lifestyles.

On the anti-accommodationist side, Marshall argues that religion-based exemptions give religious individuals special treatment and so violate equal citizenship. Thus, he objects to the disparity of exempting the Amish from compulsory school attendance laws on account of their beliefs but denying a similar exemption to ‘a group of Thoreauians whose objection would be based on social or political grounds’ (Marshall 1991 : 316). And if religious liberty is taken as derivative of more general basic liberties, Marshall's Thoreauians should be treated in the same manner as the Amish: either both groups or neither should be given exemptions.

Nonetheless, there appears to be a serious dilemma with the idea that religious and secular doctrines should be treated identically when it comes to accommodation. Prohibiting all accommodation would seem to violate equal citizenship. Equality is not the same as uniformity and cannot be guaranteed by uniformity of treatment (Audi 2000 : 40). Sometimes a person's deepest normative convictions make his situation relevantly different, as with the Native American peyote smokers or those whose Sabbath observance prevents them from taking a job that unemployment or welfare laws would otherwise require them to take. But, if religious and secular doctrines are treated on a par, then it seems that the result would ‘make a mockery of the rule of law’ (Nussbaum 1999 : 111). Too many claims of accommodation might need to be granted, as both religious and secular groups press for exemptions. Thus, Nussbaum contends that, as a practical matter, we must choose between providing exemptions only to religiously motivated conduct or having no exemptions at all. And she argues for the former on the basis of the traditional vulnerability of minority religions.

But Nussbaum is not entirely convincing. Religious minorities have been historically vulnerable, even in constitutional democracies, but so have secular minorities, such as Communists. Moreover, constitutionally required religious accommodations have not been extensive, restricted mainly to matters of schooling and unemployment compensation. Extending equal protection to secular doctrines would threaten the rule of law only if much more extensive religious accommodations were recognized.

Moreover, legal rulings have counted certain secular doctrines—such as Ethical Culture and secular forms of pacifism—as equivalent to religion, as Greenawalt endorses (2000:208–9). Although this judicial stretching of'religion’ involves a legal fiction, legal thinkers could still reasonably contend that heightened protection for religious and secular comprehensive doctrines is important for promoting the moral powers of personhood.

Today, many constitutions differ from the US Constitution in explicitly protecting freedom of conscience and not simply religious liberty. Indeed, Article 4 of the German Constitution exempts from armed war service all conscientious objectors, drawing no distinction between secular and religious objections. And it is reasonable to think that a feasible arrangement exists that treats religious and secular doctrines equally, while providing both kinds of doctrine with heightened protection and avoiding harm to the rule of law.

6.2 Religion and Politics

Related to the accommodation debates is the question whether theological claims can play a legitimate role in public political discussion and decision making. Several key thinkers argue that theological claims are, in certain respects, inappropriate for public debate and decision. These thinkers do not contend that individuals should be legally barred from making religious contributions to public debate. But they argue that persons should exercise self-restraint when it comes to such contributions so as to respect the equal standing of their fellow citizens. Thus, Audi argues that citizens should not support any coercive law unless they are motivated by ‘adequate secular reasons’, such as public health and safety (2000: 86–96).

Rawls ( 1993 ) contends that norms of equal citizenship require each person to bracket her belief in the truth of her own comprehensive doctrine when discussing and deciding constitutional questions and issues of basic justice. Equal citizens address such matters on grounds of public reason—that is, grounds that they can reasonably expect all their fellow citizens reasonably to endorse in principle. Rawls treats religious and secular comprehensive doctrines on a par and provides for an important exception to the bracketing requirement: comprehensive doctrines may be introduced when they help to bring about or secure free and equal citizenship for all and the arguments based on those doctrines are supplemented ‘in due course’ by ones that are not particular to any sectarian world view (1999:152–5).

Greenawalt argues that ‘comprehensive views… can appropriately figure in resolution of the broad range of political issues that ordinary citizens face’, with the proviso that when citizens argue in the public forum for a political position they should emphasize reasons that their fellow citizens can share. Legislators may give some weight to positions of their constituents that are based on comprehensive views. But, because legislators should represent all their constituents with equal respect, they ‘should probably afford more weight to a citizen position that is grounded in public reason’ (Greenawalt 1995b: 160–1). Judges should exercise the greatest restraint and generally decide cases based on reasons that are ‘shared in our political culture’ (Greenawalt 1995 b: 146).

Perry ( 1997 ) rejects restrictions on religious arguments in public discussion and argues that the idea of the sacred value of life is an admissible ground of official decision making apart from any secular rationale. However, he otherwise deems it inappropriate for officials to make decisions about human well-being on religious grounds when there is no plausible secular basis for the decision.

Wolterstorff contends that liberal views such as those of Audi, Rawls, and Greenawalt have led to an unfortunate ‘silencing of religion in the public square’ and fail to treat religious citizens as equals (1997:177). Quinn adds that the public airing of religious considerations has the virtue of encouraging a public dialogue in which unexpected agreement emerges and people develop their own views more adequately as a result of ‘contact and confrontation with an alien religion or meta- physics’ (1997: 158). Likewise, Carter contends that public dialogue in which religious argument is welcomed could help persons to learn from others with different epistemological suppositions (1993: 232).

In assessing this complex debate, it is crucial to understand the liberal conception of equal citizenship and to ask whether the anti-liberals provide a viable alternative. When citizens call on government to deploy its coercive powers, the liberal norm of equal citizenship places on them an obligation to provide a justification resting on grounds that their fellow citizens can in principle accept. For example, reasons of public health are ones that all citizens can accept, notwithstanding the diversity of religious and secular comprehensive doctrines. Moreover, citizens generally accept the methods of empirical inquiry that are capable of providing reliable evidence about claims concerning public health. Thus, disagreement over whether a particular law is needed adequately to protect public health is one that proceeds from a broad area of common ground, and thereby conforms to the norms of liberal equality.

In contrast, reasons of personal salvation are not ones that all citizens can accept, in part because the faith of many believers holds that salvation is not among the matters that government can competently or legitimately address. And citizens of faith will disagree sharply over the appropriate methods of determining the right road to salvation. Reasons involving secular ideals of personal moral perfection— for example, the Stoic ideal of an individual indifferent to his fortune or misfortune— will also fail the test of liberal equality. Many citizens will be unable to accept them because they hold conflicting ideals of moral perfection.

Liberal equality does not obligate anyone to refrain from giving voice to their comprehensive views in political discussion. Nor does liberal equality obligate anyone to refrain from supporting a coercive law if they have sufficient sectarian reasons. But, if they do have such reasons, liberal equality obligates them to refrain from supporting the law for those reasons: they should not support the law unless they also have reasons that their fellow citizens can share.

The liberal conception of equal citizenship is an ideal. Reasons and methods of enquiry that can be shared by literally every single citizen will be impossible to find. But, for the liberal, that is a matter of a regrettable gap between the ideal and the real. If anti-liberals do not regard it as such, they need to develop a viable alternative to the liberal conception of equality. And, if they do regard it as such, they need to explain why they do not turn out to be liberals after all.

7. Speech, Religion, And Equality

Discussions of freedom of speech and religion often assume the existence of a democratic order devoid of explosive ethnic tensions and oppressive social hierarchies. That assumption is challenged in part by critical race theorists and radical feminists, who assert that Western democracies are riddled with racial and gender oppression. But, regardless of the truth of that assertion, it is undeniable that there are democracies riddled by oppressive hierarchies and violent ethnic conflicts. And it is important to examine how the principles of expressive and religious liberty should be applied under conditions that fall egregiously short of the ideal of free and equal citizenship.

In his examination of India, Jacobsohn argues that caste inequality and religious violence make it reasonable to restrict religious association and speech there in ways that would be unacceptable in other constitutional democracies. Indian electoral law prohibits candidates from promoting ‘feelings of enmity or hatred between classes of citizens… on grounds of religion, race, caste, community or language’ (Jacobsohn 2000 : 297). The Indian Constitution protects free speech and religion, but the Supreme Court has held that a leader of an extremist Hindu party could be barred from standing for election because of campaign rhetoric directed against Muslims. The court invoked a constitutional provision providing a ‘public order’ exception to free speech protections.

Jacobsohn endorses the court's view but goes further to contend that it has not been vigorous enough in enforcing another provision of Indian electoral law that prohibits any candidate from appealing for votes on the basis of his race, religion, or caste. Indian constitutionalism, argues Jacobsohn, is committed to the elimination of the culture's traditional structural inequalities, and the electoral provision has a logic that can be defended on grounds of its consistency with such constitutionalism. More broadly, his point is that the principles essential to constitutional democracy—such as freedom of speech and religion—should be interpreted and applied in a manner that is sensitive to the social and historical context of each country.

Tamir ( 2000 ) takes a similar tack in discussing Israel, where the law prohibits a party for standing for election if it intentionally incites racism. She defends a ruling of the Israeli High Court barring the virulently anti-Islamic Kach Party, even though the speech in question involved readings from biblical passages. On her view, religious hate speech in the Israeli context amounts to fighting words that ought to be banned on account of the potential to ignite violence.

The realities of caste in India and Jewish/Palestinian conflict in Israel make issues of expressive and religious liberty harder cases than they typically are in democracies where the gap between the real and the ideal is not nearly as wide. Interpreting such liberties in ways that would entrench caste inequality or generate widespread religious violence would be a mistake on practical and moral grounds. Religious and expressive liberty are elements of the ideal of free and equal citizenship, and social progress towards that ideal, where the reality falls egregiously short, should not be undercut by the context-blind insistence that rights are trumps over collective goals.

Nonetheless, the incursion on basic liberties found in Israeli and Indian electoral law are substantial, because the laws deny to certain groups the right of political association based on their religious speech. This incursion is far greater than that of the hate-speech laws found in Canada and most other democracies. Thus, laws that ban extremist religious parties should face a high burden of justification, requiring clear and convincing evidence that the laws are needed to make progress in mitigating caste-like inequality or to forestall widespread violence. Neither Jacobsohn nor Tamir makes the case that such evidence is available.

8. Conclusion

For much of the twentieth century, thinkers developed and invoked the ideals of freedom and equality to combat social disadvantage linked to race, gender, and class. But the meaning and implications of the ideals are not transparent, and debates have emerged as to whether they require society to tolerate forms of expression that demean and degrade on the basis of race, religion, and gender. Moreover, theorists have recently taken up issues concerning the equal treatment of persons whose religious convictions have political implications.

The task of future work lies in three main areas. First, in the area of ideal theory, there is need to clarify the scope and nature of expressive and religious liberty through further examination of the ideal of free and equal citizenship. Second, in the area of non-ideal theory, there is need for sociologically informed work that examines how the political ideals of freedom and equality should guide law and policy under the real conditions of social life. Third, there is need for comparative analyses, exploring the various forms that constitutional democracy takes in different coun- tries and how that variety illuminates questions of ideal and non-ideal theory.

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Cases Cited

Boerne v. Flores , 521 US 507 (1997).

Buckley v. Valeo , 424 US 1 (1976).

Cohen v. California , 403 US 15 (1971).

Employment Division v. Smith , 494 US 872 (1990).

R. v. Keegstra , 3 SCR 647 (1990).

RAV v. StPaul , 505 US 377 (1992).

Wisconsin v. Yoder , 406 US 205 (1972).

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Việt Nam News

Việt nam makes great efforts to ensure and promote right to freedom of belief, religion.

HÀ NỘI — Twenty years ago, Vietnamese in the Russian Federation with faith in God were the first members of the Christian Word of Life Church to return to their homeland where the religious organisation is based.

The Christian Word of Life Church has yet to be granted a religious operating licence or a legal status, but about 40 branches in Vietnamese cities and provinces have been licensed to operate in line with the Law on Belief and Religion.

Pastor Phạm Tuấn Nhượng, Head of the Christian Word of Life Church in Việt Nam, said he and other members have received support in religious activities.

Nhuong and other dignitaries and followers of other religions have, for many years, worked with people all over the country in national construction and received favourable conditions to practice their religions.

The religious belief that goes in tandem with patriotism, national pride and civic consciousness motivates each individual to lead a good religious and secular life.

Việt Nam is now home to 43 religious organisations belonging to 16 religions, with 26.7 million followers, nearly 60,000 dignitaries, 30,000 worship facilities and tens of millions of religious publications.

The Party’s and State's respect and consistency in religious policies and the reality have strengthened the faith of all religious followers, and encouraged them to work together to build their homeland.

During Christmas 2023 and New Year 2024 holidays, Deputy Prime Minister Trần Lưu Quang visited and extended his best wishes to the Archbishop's Palace of Hồ Chí Minh City Archdiocese, dignitaries of the Catholic Bishops' Conference of Việt Nam and the General Confederation of the Evangelical Church of Việt Nam (South).

In Ho Chi Minh City, Archbishop Nguyễn Năng thanked the Party and the State for their sentiments and attention to Catholics, and expressed his joy and pride in the country's great achievements in the past year, especially in foreign affairs, notably the positive development in the relations with the Vatican, contributing to enhancing Việt Nam’s position in the international arena.

At the General Confederation of the Evangelical Church of Việt Nam (South), Pastor Thái Phước Trường also highlighted the Party’s and the State’s attention and support to the Church and Protestants across the country.

Respecting people's right to freedom of belief and religion is the consistent and thorough policy of the Vietnamese Party and State, and is institutionalised by the Constitution and laws.

President Hồ Chí Minh on September 2, 1945 delivered the Declaration of Independence announcing the birth of the Democratic Republic of Việt Nam, now the Socialist Republic of Việt Nam. The President’s and the Party’s views on protecting human rights were made clear in the Declaration of Independence.

“All men are created equal. They are endowed by their Creator with certain inalienable rights, among them are Life, Liberty, and the pursuit of Happiness," the Declaration of Independence read.

The right to freedom of belief and religion is one of the fundamental rights of human beings. Therefore, throughout the national revolution’s history, especially during nearly 40 years of Doi Moi (renewal), the Party and the State have endeavoured to ensure that the right is respected and practised. Through this effort, they aim to gather and consolidate the religious-ethnic solidarity bloc to build and develop the nation.

Many relevant legal documents have been issued, serving as the direct basis for state management in this regard, notably the Law on Belief and Religion, passed by the 14th National Assembly on November 18, 2016, which marked a milestone in the realisation of Việt Nam's consistent policy on the right to freedom of belief and religion.

The legal document directly prescribes belief and religion matters, representing the highest-ever legal value in Việt Nam, and concretising the spirit of the 2013 Constitution regarding human rights, citizens' rights, and the right to freedom of belief and religion for all. It also maintains compatibility with international law in the context of Việt Nam's intensive and extensive international integration.

In addition, Vietnamese religious organisations have held numerous international events highly regarded by the public, such as the United Nations Day of Vesak hosted by the Việt Nam Buddhist Sangha for three times, with the participation of over 1,000 international delegates from 120 countries and territories; the meeting of the Federation of Asian Bishops' Conferences (FABC) in 2023; the celebration of 100 years of Protestantism in Việt Nam in 2011; and the 6th Asia-Europe Meeting (ASEM) Interfaith Dialogue.

Việt Nam's open religious policy also creates favourable conditions for foreigners legally residing in Việt Nam to practise their religions, and legal frameworks for domestic religious organisations to engage in exchanges and cooperation with international counterparts, thereby affirming Việt Nam's position in the regional and global religious landscape and contributing significantly to the foreign affairs of the Party and the State.

After nearly 40 years of renewal, and active and proactive international integration, Việt Nam has made remarkable strides in ensuring the right to freedom of belief and religion, which has been recognised and praised by the international community.

The reality has been seen as a trenchant response to the sabotage arguments of hostile and reactionary forces about the religious situation in Việt Nam. VNS

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• Security Council

Freedom of Religion Must Prevail in Ukraine, Even as War Drags On, Senior UN Human Rights Official Tells Security Council

Un agency documents tension, violence between rival orthodox worshippers.

Everyone in Ukraine must have complete freedom to manifest and practice their religion or belief, a senior UN official told the Security Council today as she detailed restrictions on religious freedom and threats to the safety of religious communities in the country and called on both Ukraine and the Russian Federation to ensure that fundamental human right.

“Concerns regarding the enjoyment of freedom of religion in Ukraine, including in occupied territory, have increased since February 2022,” said Ilze Brands Kehris, Assistant Secretary-General for Human Rights in the Office of the United Nations High Commissioner for Human Rights (OHCHR), noting growing tensions between the Ukrainian Orthodox Church and the Orthodox Church of Ukraine.

“Restoring peace and respect for the United Nations Charter and international law is urgent.  While the war and occupation persist, we call on all parties to ensure that all people in Ukraine have full freedom to manifest and practice their religion or belief, in line with international human rights law.”

Since February 2022, OHCHR has documented 10 cases of physical violence and six cases of threatened violence resulting from disputes between parishioners of different Orthodox communities, she said. Ukrainian law enforcement’s response in these cases has failed to sufficiently investigate incidents and take action to protect members of the Ukrainian Orthodox Church, she added. 

She drew attention to the Ukraine Parliament’s first-reading approval of draft amendments to the law on religious organizations, which, if adopted, would establish a procedure to dissolve “religious organizations affiliated with influence centres, the management of which is located in a country, which carries out armed aggression against Ukraine”.  Lawmakers must clearly define the specific legitimate aim of the proposed restrictions and ensure their necessity and proportionality and revise the text accordingly, she said.

Meanwhile, although international humanitarian law obliges an occupying Power to respect the laws in force in the country, the Russian Federation is applying its own laws in occupied territory, she said. Elaborating, she detailed restrictions on religious minorities and cases of alleged torture of clergy.

Vakhtang Kipshidze, Vice-Chairman of Synodal Department for Church’s Relations with Society and Mass Media, Moscow Patriarchate, who also briefed the Council, said:  “An analysis of the situation leads us to the assessment that the authorities of the country have an objective of completely annihilating the Ukrainian Orthodox Church.”  Believers who do not want to convert to the Orthodox Church [of Ukraine], established by current Ukrainian authorities in 2018, will be stripped of their rights, he said. 

“The first step to the restoration of peace in Ukraine is the end to persecution of the Ukrainian Orthodox Church,” he said, calling on Council members to abandon political differences for the sake of the principle of religious freedom and adopt effective measures to protect worshipers in Ukraine.

During the debate that followed, the Russian Federation’s representative, said that the Ukraine Parliament’s draft legislation would completely ban the activities of the Ukrainian Orthodox Church.  The Kyiv regime is trying to justify the purge of the country’s religious field and free the hands of radicals to violence and lawlessness, he added, pointing to seizures of churches and forced illegal legal liquidation of their communities under the guise of supposedly “voluntary transitions” to other faiths, since 2019.  Despite OHCHR documenting 10 cases of physical violence and six cases of threats after conflicts between parishioners of different Orthodox Christian communities, the Council’s Western members continue to ignore this, he said, pointing to “an attempt to reform the consciousness of tens of millions of Ukrainians”.

The United States’ delegate, however, said that the Russian Federation’s use of the Council to further disinformation was additional evidence that it does not respect freedom of expression and belief around the world. He also expressed alarm that the Russian Federation is trying to justify its invasion by framing the war as a holy war between good and evil.  “We should all see through this façade” and focus on the well-documented and systematic policy of religious oppression in the territories under Russian Federation occupation, he said.

Malta’s representative similarly criticized the Russian Federation for yet again attempting to divert attention from its aggression against Ukraine by requesting today’s meeting.  France’s delegate said that Moscow must comply with Council resolution 2347 (2017), which states that a deliberate attack on a religious site is a war crime.  Ecuador’s representative noted that the Geneva Conventions prohibit acts of hostility against places of worship, which constitute the cultural or spiritual heritage of peoples.

“Efforts to instrumentalize religion or use it for political goals is an adventurous enterprise and may prove dangerous,” said Albania’s representative, who joined others in calling on the Russian Federation to stop the war and withdraw its troops from Ukraine’s internationally recognized borders.  Mozambique’s representative, meanwhile, said both Ukrainian and Russian clergy and religious leaders could be influential advocates for compassion and compromise.

Ukraine’s representative, speaking at the end of the meeting, said that the Russian Orthodox Church itself has taken part in occupation and pursued annexation of her country’s territory.  It has also been responsible for providing ideological support of Moscow’s aggression against Ukraine.  The Russian authorities in the occupied territories of Ukraine have harassed, intimidated, prosecuted or imprisoned hundreds of those belonging to the Orthodox Church of Ukraine, Protestant churches and Muslim religious communities, as well as Greek Catholics, Roman Catholics, Jehovah’s Witnesses and members of other religious groups, she said.  Ukraine’s draft law discussed today has a very clear goal — to counter the attempts of the aggressor State to instrumentalize religious organizations in Ukraine for the purposes of aggression, she added.

THREATS TO INTERNATIONAL PEACE AND SECURITY

ILZE BRANDS KEHRIS, Assistant Secretary-General for Human Rights, Office of the United Nations High Commissioner for Human Rights (OHCHR), speaking via video-teleconference on behalf of the High Commissioner, said that to date, the Office has recorded nearly 10,000 civilians killed and more than 18,000 injured, as well as extensive damage to Ukrainian civilian infrastructure.  Humanitarian needs will be magnified as winter approaches and temperatures drop below freezing.  OHCHR is monitoring the situation of freedom of religion across Ukraine, in both territory controlled by the Government of Ukraine and territory occupied by the Russian Federation.  “Tensions between the Ukrainian Orthodox Church, which has historic links to the Moscow Patriarchate of the Russian Orthodox Church, and the Orthodox Church of Ukraine, which obtained autocephaly under the Constantinople Patriarchate in 2019, including over ownership of land and buildings, increased following the Russian Federation’s full-scale armed attack in February 2022, in some cases manifesting in violent incidents,” she reported.

These tensions have affected freedom of religion in the territory controlled by the Government of Ukraine, she said, noting that since February 2022, OHCHR has documented 10 cases of physical violence and six cases of threatened violence resulting from disputes between parishioners of different Orthodox communities.  “Regrettably, Ukrainian law enforcement’s response in these cases has been inadequate, failing to sufficiently investigate incidents and take action to protect members of the Ukrainian Orthodox Church.”  In addition, since February 2022, of the more than 6,600 criminal cases brought against individuals for collaboration and other conflict-related crimes in Ukraine, 68 have involved Ukrainian Orthodox Church clergy members, according to Ukrainian authorities, she added, noting that OHCHR is monitoring 44 of these cases.  Full respect for due process and fair trial rights in these extremely sensitive cases must be ensured, she emphasized, noting that in at least 26 cases involving Ukrainian Orthodox Church clergy members, OHCHR has identified concerns regarding the fairness of the criminal proceedings.

OHCHR is closely monitoring how legislative developments in Ukraine may impact enjoyment of freedom of religion, she said, adding that the Office has previously expressed concern over the cumulative impact of Government actions targeting the Ukrainian Orthodox Church that could be discriminatory.  In October, Ukraine’s Parliament approved in its first reading a set of draft amendments to the law on religious organizations, which would establish a procedure for the dissolution of “religious organizations affiliated with influence centres, the management of which is located in a country, which carries out armed aggression against Ukraine.”  International law permits restrictions on the freedom to manifest religion only if they are prescribed by law and necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others, she said, urging lawmakers to clearly define the specific legitimate aim of the proposed restrictions and ensure their necessity and proportionality and revise the text accordingly. 

Noting serious concerns of the OHCHR about freedom of religion in Ukrainian territory occupied by the Russian Federation, she recalled that international humanitarian law obliges an occupying Power to respect the laws in force in the country.  However, the Russian Federation is applying its own laws in occupied territory.  She detailed restrictions on religious minorities, such as in Crimea where Russian authorities have prosecuted Jehovah’s Witnesses and Hizb-ut-Tahrir — two organizations that are prohibited in the Russian Federation, but not in Ukraine.  In Simferopol, the occupying authorities evicted the Orthodox Church of Ukraine from the cathedral, depriving parishioners of their last place of worship in the city, she said, also detailing cases of alleged torture of clergy.  “Concerns regarding the enjoyment of freedom of religion in Ukraine, including in occupied territory, have increased since February 2022,” she continued. “Restoring peace and respect for the United Nations Charter and international law is urgent.  While the war and occupation persist, we call on all parties to ensure that all people in Ukraine have full freedom to manifest and practice their religion or belief, in line with international human rights law.”

VAKHTANG KIPSHIDZE, Vice-Chairman of Synodal Department for Church’s Relations with Society and Mass Media, Moscow Patriarchate , said it could never have been imagined that the history of faith-based persecution would repeat itself in our time in Ukraine.  “An analysis of the situation leads us to the assessment that the authorities of the country have an objective of completely annihilating the Ukrainian Orthodox Church.”  The present Ukrainian authorities, encroaching on the principle of religious freedom, decided in 2018 to establish an Orthodox Church, renouncing more than 1,000 years of regional religious history and presenting the current Ukrainian Orthodox Church as an enemy of the State.  All believers who do not want to convert to the new church will be stripped of their rights, he said.

Patriarch Kirill of Moscow has repeatedly turned to the Secretary-General with descriptions of violations of the rights of worshippers of the Ukrainian Orthodox Church, but the only response has been silence, he said. It seems the international community is indifferent to the shameless devastation of the Ukrainian Orthodox Church, which unites tens of millions of worshippers.  The voices of believers of the Ukrainian Orthodox Church are not heard in the Council; rather, these believers are intimidated and afraid to openly defend their rights because repression awaits them in Ukraine.  “The first step to the restoration of peace in Ukraine is the end to persecution of the Ukrainian Orthodox Church,” he added.

The Council needs to put aside political differences and protect ordinary worshippers from unprecedented repression, he said. Clergy and lay people, monks and bishops should not become bargaining chips in global politics.  Otherwise, the mockery of peoples’ faith will continue. If warring States destroy cultural and historical ties established over centuries, then they will plunge into the abyss of barbarism.  Faith needs to be upheld to ensure some space for mercy for the defenceless, prisoners and civilians in the horrors of war.  He called on Council members to abandon political differences for the sake of the principle of religious freedom and adopt effective measures to protect worshipers in Ukraine.

VASSILY A. NEBENZIA ( Russian Federation ) said that on 19 October, the Parliament of Ukraine adopted in the first reading the act to amend certain laws to completely ban the activities of the Ukrainian Orthodox Church.  If adopted, this law will make it possible to prohibit in court the activities of any Ukrainian religious organization that is “affiliated with centres of influence” in the Russian Federation.  Comparing the President of Ukraine to Roman emperors who persecuted Christians, he said that the only thing missing is a Colosseum with Christians torn to pieces, although the Kyiv regime is moving towards this.  Ukrainian police, security forces and journalists spread groundless accusations that weapons, ammunition and provisions for the “aggressor” are stored in churches, he said, adding that the Kyiv regime is trying to justify the purge of the country’s religious field and free the hands of radicals to violence and lawlessness.

Since 2019, there have been seizures of churches and forced illegal legal liquidation of their communities under the guise of supposedly “voluntary transitions” to other faiths, he said, also recalling the expulsion of monks from the Kyiv Pechersk Lavra, the oldest monastery in Ukraine and a symbol of canonical Orthodoxy.  Volodymyr Zelenskyy’s “democratic” regime placed the elderly leader of the monastery under arrest, but released him on bail of $1 million. In the last six months, OHCHR has documented 10 cases of physical violence and six cases of threats after conflicts between parishioners of different Orthodox Christian communities, he noted, adding that this is just a drop in a bucket compared to the real facts. Western members of the Security Council continue to ignore this as they cannot criticize Zelenskyy, otherwise the question may arise to whom exactly they are supplying weapons.  “In fact, we are talking about an attempt to reform the consciousness of tens of millions of Ukrainians,” he said.

YAMANAKA OSAMU ( Japan ) said the Russian Federation is attempting to paint itself as a guardian of religious freedom, yet it has inflicted tremendous damage on religious facilities in Ukraine.  He strongly condemned the Russian Federation’s attacks on religious sites in Ukraine, noting that, according to the United Nations Educational, Scientific and Cultural Organization (UNESCO), 327 cultural sites, including 124 religious sites, have been damaged since February 2022 when Moscow began its aggression against Ukraine. “This tragic list will become longer and longer until Russia stops its invasion of Ukraine,” he said, adding that, without peace and stability, freedom of religion will be undermined. “Let me repeat in the strongest possible terms — Russia must withdraw all its troops and military equipment from Ukraine and respect Ukraine’s independence, sovereignty and territorial integrity within its internationally recognized borders,” he said.

ADRIAN DOMINIK HAURI ( Switzerland ) said that any measures restricting the right to manifest one's religion or beliefs must be provided for by law, serve a legitimate public interest and be necessary and proportionate.  Nothing can justify the Russian Federation's military aggression against Ukraine, which, for over 20 months, has been causing immeasurable suffering far beyond the battlefield.  He condemned Moscow's repeated air strikes, which are causing not only painful loss of life, but also heavy material destruction, including of religious sites and objects.  He underscored the protection afforded to places of worship and religious practices under international humanitarian law and expressed deep concern at the serious violations of human rights, particularly in the Russian Federation-occupied territories of Ukraine.  Accordingly, he called on that country to immediately cease its military aggression against Ukraine.

DOMINGOS ESTÊVÃO FERNANDES ( Mozambique ) said threats to religious freedom are inherently problematic and may serve as catalysts for conflict.  He voiced concern about the intrusion on religious freedom, especially within the Orthodox Church due to the Russian Federation-Ukraine conflict and emphasized that religion must not be used as a tool to restrict worship rights.  “We are of the view that both Ukrainian and Russian clergy and religious leaders could be influential advocates for compassion and compromise, contributing to the cessation of hostilities and eventual reconciliation.”  By championing peace and reconciliation, they can help bridge divides, enhance mutual understanding and de-escalate tensions, thereby nurturing a culture of peace. Tolerance, mutual respect and peaceful coexistence amongst Orthodox believers are essential for national unity in a diverse society like Ukraine, he added.

AURÉLIE FLORE KOUMBA PAMBO ( Gabon ) noted in recent weeks reports of decisions that ban part of the Orthodox Church from Ukraine.  She said these developments are clearly linked to clashes between the clergy and political authorities and are intensifying in the context of the stalemate of the war. These churches are facing choices now which transcend their usual religious and faith-based work.  She called for parties to respect guarantees of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Declaration on the Elimination of All Forms of Intolerance and Discrimination based on Religion or Belief.  She urged the parties not to resort to unilateral actions which reduce the space for expression of individual freedoms, and not to fuel fears, rejection and hatred between communities.  Diplomacy must be chosen above all, she added.

FERGUS JOHN ECKERSLEY ( United Kingdom ) condemned all persecution on the grounds of religion or belief, adding:  “Ukraine shares these values.  It is a pluralist and multifaith society, with the right to freedom of religion or belief enshrined in its Constitution.” Moreover, Ukraine’s lawmakers have sought the advice of experts on freedom of religion and belief as they respond to threats to national security.  However, the Russian Federation does not share this commitment, he said, stating that its authorities arbitrarily arrest Crimean Tatars, accuse them of extremism and terrorism for peacefully practising their faith, and discipline Russian Orthodox priests for expressing opposition to Moscow’s invasion of Ukraine. Over 100 religious sites have been damaged or destroyed since the invasion started.  The Russian Federation is presenting itself today as the protector of the Russian Orthodox Christian faith, but is it Christian to kill civilians, he asked, calling for that country to end its war of aggression and withdraw its forces from Ukraine.

MONICA SOLEDAD SÁNCHEZ IZQUIERDO ( Ecuador ) said that her country unambiguously recognizes and defends freedom of thought, conscience and religion and is concerned about the use of religion to exacerbate conflict or violence or even to justify it.  She also expressed regret that, since the beginning of the military aggression against Ukraine, at least 142 religious sites have been destroyed, as verified by UNESCO within the framework of its preliminary assessment of damage caused to cultural sites.  Emphasizing that the Geneva Conventions prohibit acts of hostility against places of worship, which constitute the cultural or spiritual heritage of peoples, she urged all religious leaders in Ukraine, the Russian Federation and around the world to call to counter any hate speech and promote an end to violence, including an end to military occupation.

FRANCESCA MARIA GATT ( Malta ) said that regrettably, today’s meeting represents yet another attempt by the Russian Federation to divert attention from its aggression against Ukraine.  Several UN reports provide evidence that Moscow’s authorities have committed wilful killing, torture, sexual violence, shelling of civilian infrastructure and the deportation of children to the Russian Federation, whose ongoing attacks against Ukraine have left a wide trail of destruction.  A clear example of this is the damage inflicted on the largest Orthodox Church in Odesa by a Russian Federation missile strike on 23 July, adding to the UNESCO list of cultural, historical and artistic sites damaged amid the conflict.  Strongly condemning attacks against religious and cultural heritage, she urged the Russian Federation to comply with its international law obligations and immediately cease its aggression.

NICOLAS DE RIVIÈRE ( France ) said that although the Russian Federation is once again exploiting the Council to wage a campaign of disinformation, it will not succeed in diverting attention from its illegal war of aggression against Ukraine or its countless violations of international human rights law and international humanitarian law.  That country, which has targeted Ukrainian civilians and infrastructure, including its religious sites, in indiscriminate attacks, must comply with Council resolution 2347 (2017), which states that a deliberate attack on a religious site is a war crime, he said.  In the territories it illegally occupies, specifically in Crimea, the Russian Federation has been trampling on the rights of Crimean Tatars, Protestants and members of the Orthodox Church of Ukraine, he said, voicing support for the investigations carried out by the Ukrainian courts and the International Criminal Court.  He once again urged the Russian Federation to end its aggression and withdraw its troops from Ukrainian soil.  “This is the only way to ensure the protection of the civilian population and infrastructure in Ukraine,” he stressed.

ROBERT A. WOOD ( United States ) said that his country takes seriously all allegations of human rights violations, including those concerning beliefs.  However, the Russian Federation’s transparent use of the Council to further disinformation is additional evidence that it does not respect freedom of expression and belief around the world.  Its damage to religious sites in Ukraine and abysmal religious freedom record at home shows how little it actually values religious freedom.  He expressed alarm that the Russian Federation is trying to justify its invasion by framing the war as a holy war between good and evil. “We should all see through this façade” and focus on the well-documented and systematic policy of religious oppression in the territories under Russian Federation occupation, he said.

BISMARK ANYANAH ( Ghana ) said his country remains convinced of the need to end the war now and create conditions for addressing the several root causes and other instigating factors, including religious tensions which predate the current hostilities.  The Human Rights Council remains the appropriate international forum to redress all forms of human rights violations, including the assertions of religious persecution targeting the Orthodox Church in Ukraine, he said, and reiterated the call on the conflicting parties to uphold their commitments under international law to respect the rights of all persons to freedom of thought, conscience and religion.  He also called for constructive dialogue in good faith among all stakeholders to find mutually agreeable solutions to the deep schisms caused by divergences surrounding the Orthodox Church and stressed the urgency of an immediate, unconditional cessation of the hostilities in Ukraine.

NORBERTO MORETTI ( Brazil ) said that his country, as a pluralistic and multi-ethnic society, encourages tolerance and respect for religious diversity. “Under no circumstances should religious practice foment tensions within and between countries,” he emphasized. Noting recent decisions that may affect the legal status of the Ukrainian Orthodox Church, he called on all parties involved to avoid any measures that could restrict individual freedoms or deepen resentment that fuels conflict.  “It would be regrettable if deep, historical ties between the Orthodox communities in Russia and Ukraine fell victim to the dynamics of war.  On the contrary, the shared Orthodox faith, as a constituent part of their national identities should foster dialogue,” he said.  Brazil supports a peaceful solution to the conflict, in accordance with Article 33 of the UN Charter, and is willing to contribute to efforts to restore peace, as soon as the parties are ready to engage in negotiations, he added.

SHAHD JAMAL YOUSUF IBRAHIM MATAR ( United Arab Emirates ) expressed concern about reports of religious intolerance and continuing damage inflicted on cultural sites throughout the war in Ukraine, noting that historic sites and places of worship are protected under international humanitarian law.  Religious and cultural sites form centres of gravity for communities, particularly amid the upheaval of conflict and important pillars for recovery post-conflict. Creating a culture of tolerance is a core element of conflict resolution and post-war healing and must be an important consideration for the parties to conflict and the Council, she said.  Acts of religious intolerance or destruction to sites only serve to escalate and prolong conflicts.  She called for the Council to be “unequivocal in our condemnation of such acts and focus our efforts on a return to peace and security in Ukraine”.

ALBANA DAUTLLARI ( Albania ) said that the unprovoked military aggression of the Russian Federation has not stopped, like the misuse of the Security Council with meetings such as this one called by Moscow to advance a narrative in support of its illegal actions in Ukraine.  Albania upholds the principle of freedom of religion and belief at home and worldwide.  “Efforts to instrumentalize religion or use it for political goals is an adventurous enterprise and may prove dangerous,” she stressed.  “Regrettably, we have become accustomed to witnessing Russian propaganda exploit religion to legitimize its geopolitical ambition,” she said, urging to keep politics and religion apart.  Religious leaders must work for peace and understanding, to promote respect among people and nations, she emphasized, reiterating the call on the Russian Federation to stop the war and withdraw all its troops from the internationally recognized borders of Ukraine. 

GENG SHUANG ( China ), Council President for November, speaking in his national capacity, noted the deepening conflicts between religions, cultures and societies.  Relevant parties should remain highly vigilant, make all efforts to prevent the spillover of negative impacts and refrain from deliberately inciting hatred or artificially creating new conflicts, he said.  Dialogue and negotiation are the fundamental way to a political solution of the Ukraine crisis.  Parties to the conflict must remain rational, exercise restraint and actively respond to the international community’s appeal for an early ceasefire and realize a cessation of hostilities.  He expressed hope that, during this process, religion can be a positive force in advocating for peace and promoting unity.  China will continue to engage with all parties to facilitate efforts toward a political solution to the Ukraine issue, he added.

Mr. NEBENZIA ( Russian Federation ), taking the floor a second time, expressed gratitude to those Council members who called for respect for freedom of faith in Ukraine.  Western delegates, however, read standard statements and offered no interest in any facts.  They should turn to the Internet to see incidents of churches being closed and parishioners of the Ukrainian Orthodox Church being beaten.  Perhaps then will Western nations discover how their statements represent complicity with the crimes of the Kyiv regime, he said.

NATALIIA MUDRENKO ( Ukraine ) said that the Russian Federation only remembers human rights when it needs to make its propaganda presentable.  “It is not surprising that Moscow has once again used the Council’s platform to promote the interests of the Russian Orthodox Church.”  That Church has been responsible for providing ideological support of the aggression and its leader, Kirill Gundyayev, has translated military propaganda narratives in tune with the Kremlin.  “The Russian Orthodox Church itself has taken part in occupation and pursued annexation,” she said, recalling that it annexed all three Crimean dioceses of the Ukrainian Orthodox Church and three other dioceses in the Luhansk region.  “Let me remind that these actions were taken against the very church whose rights the Russian delegation pretends to protect by requesting this meeting,” she emphasized. What Russia is not able to steal, it tries to destroy, as happened on 23 July with the Transfiguration Cathedral in Odesa, she said, adding that over 500 religious sites are damaged, including 100 destroyed. 

The Russian authorities in the occupied territories of Ukraine have harassed, intimidated, prosecuted or imprisoned hundreds of those belonging to the Orthodox Church of Ukraine, Protestant churches and Muslim religious communities, as well as Greek Catholics, Roman Catholics, Jehovah’s Witnesses and members of other religious groups, many of whom have been blanketly labelled as "extremist" or "terrorist", she said.  Turning to the draft law of Ukraine that was discussed today, she said it has a very clear goal — to counter the attempts of the aggressor State to instrumentalize religious organizations in Ukraine for the purposes of aggression.  “If adopted, this law will disallow the activities of those religious organizations in Ukraine that affiliated with the main bodies in the aggressor country,” she said, adding that all religious organizations, whose affiliation with an aggressor State is not established by the court, will be able to continue their activities.

Mr. NEBENZIA ( Russian Federation ), taking the floor a third time, thanked Ukraine's representative for “the direct and indirect confirmation of our premise that the Kyiv regime is combatting specifically canonical orthodoxy in Ukraine”.  The Council also heard a clear example of the advancement of hate speech, he added.

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