The Impossibility of Religious Freedom?

Posted on December 5, 2008
Filed Under Religion | 12 Comments

Secular Right linked to The Impossibility of Religious Freedom. It’s the introduction from the book. Is the author’s thesis right?

There is a sense in which this is true. There have to be limits. But the author makes the stronger (and perhaps more difficult to defend) claim that no right can be tied to “religious beliefs or practices.” That is to defend a religious “right” one has to defend a larger pluralistic right.I’ve not read the book. I’m behind on my reading and probably this one just won’t end up in the stack. I wonder how the author would respond to laws that limit jewelry or hats thereby excluding say Orthodox Jews or Sikhs. Does he think this is fine or think we ought find a right for clothing that applies to all people?

It’s an interesting question. I can see it going either a libertarian direction in which the state simply should not be able to regulate nearly as much as they do. I can also see it going a progressive way in which the state should be able to regulate and that religious people should simply accept that the state can control their religious performances.

The problem is, as I see it, that often the state or even businesses regulate in ways that seem silly and unnecessary. Normally this isn’t an issue but they can target minorities when they do this. Now those not of the minority simply see the regulations as annoying but it doesn’t really affect them. So it is never really dealt with. But when it excludes a particular minority defined by religion then it seems to me to be worthy of investigation.

While I’d love to live in a world with less regulation (and have what regulations are present be intelligently thought out and enforced) the fact is we don’t have that. Law making is a messy business and the law of unintended consequences is always in force.

Now I do think there can be no absolute right of religious freedom otherwise folks can simply do nearly anything and merely say it is religious. There have to be limits. But I also think that minorities get targeted and just as we need to look out for racial groups we have to watch out for religious groups. It’s just far too easy to repress a group (perhaps unintentionally) because of their practices.

Maybe my problem is over “rights-talk” which always struck me as fairly muddled once you get down to the nitty gritty. So I’m speaking more on pragmatic grounds.

Related posts:

  1. Why are Religious Happier?
  2. Religious People and Children
  3. Russell on Damon Linker’s Religious Test
  4. Religious Disagreement and Equal Weight
  5. Pluralism and Religious Epistemology
  6. American Religious Identification Survey

Comments

12 Responses to “The Impossibility of Religious Freedom?”

To add, I think the danger in appealing to the courts for religious liberty is that a judge will typically be biased against religions other than their own. Especially minority religions. Just look at the history of the LDS church outside of Utah. (And sometimes other faiths don’t get as solid a shake in Utah as they ought)

The whole question of separation of Church and State is pretty messy. It’s a blurry line at best and it’s never clear where the boundary should be.

I tend to agree with the point that (I think) the author is making. In writing on the subject previously, I tried to phrase religious freedom in non-religious terms to avoid the definitional problem.

This is also part of the reason for the sea change in free exercise jurisprudence in the U.S. after Smith. Justice Scalia argued in that case that

It is no more appropriate for judges to determine the “centrality” of religious beliefs before applying a “compelling interest” test in the free exercise field than it would be for them to determine the “importance” of ideas before applying the “compelling interest” test in the free speech field. What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is “central” to his personal faith? Judging the centrality of different religious practices is akin to the unacceptable “business of evaluating the relative merits of differing religious claims.” As we reaffirmed only last Term, “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretation of those creeds.” Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.

Laws that treat religious and other organizations equally are not much of a problem. In the U.S., religious organizations are granted specific exemptions to such laws in only a handful of areas. Certain employment laws come to mind. Churches naturally prefer to hire members to be preachers, teachers, etc. and rightfully so.

However, suppose the government decided that contributions to religious organizations that taught creationism would no longer be tax deductable, but the deductability of contributions to others would remain. That would fail the “strict scrutiny” standard applied to the free exercise clause of the First Amendment.

If the free exercise clause was removed, religious organizations would be protected to a degree under other parts of the First Amendment, however the government would be free to impose special restrictions on some or all types of religious organizations that all other types of organizations were exempt from.

So one might both see churches being required to hire atheists as seminary teachers, and reduced to disfavored status in zoning, taxation, and other laws by any rational basis whatsoever if free exercise protections were removed. Not a good idea.

Mark D:

Actually, strict scrutiny is not applied to free exercise claims–the test is whether the law is generally applicable. And I’m not sure about your hypothetical of tax-exemption. The Court has held previously that tax exemption is not constitutionally mandated. There may be an establishment argument, but I’m not really certain.

Also, the ability for a church to discriminate on the basis of religion is actually statutory, not constitutional. Title VII of the Civil Rights Act exempts religious employers. One may make an argument without that protection that being a member is a bona fide occupational qualification for a seminary teacher and so the discrimination is not unlawful, but I’m not sure if that is actually true (certainly if the applicant were someone like Jan Shipps, it would be a hard argument to make). Freedom from Title VII is also not a constitutional guarantee.

BTW – thanks for posting those links Nate. I largely agree with you – so long as ritual is dealt with expansively. (i.e. clothing such as garments for Mormons or turbans for Sikhs) I didn’t know you had a blog and added it to my NetNewsWire aggregator.

With all due respect, Jan Shipps is not qualified to indoctrinate people in the Mormon religion.

I am aware that Title VII exemption and the religious tax exemption are indeed statutory. That doesn’t mean, however, that if the statutory exemptions were not there, that they would not become constitutional issues instead. I imagine, rather, that the exemptions were included in part to avoid free exercise challenges.

I agree Mark–it would depend on how one describes the purpose of a seminary teacher–are they an educator or a youth pastor? I agree with you that it is likely the second, but there is an argument to be made for the first.

And as I mentioned earlier, Smith would foreclose a free exercise challenge since Title VII is a generally applicable law that isn’t designed to discriminate against religion. So, no, there would likely be no free exercise guarantee. I think a better argument would be that being forced to hire a youth minister that is outside the faith would violate the Church’s expressive association rights. But the fact that it’s a job and not a voluntary position muddies things a bit.

Clark, thanks for the add. And I definitely include wearing religious attire as a religious rite. In some circumstances, it may also be included as the right to preach, since wearing religious symbols can be classified as expressive conduct.

Nate W., Although it is weaker than the earlier approach, the “generally applicable / non-discriminatory” standard is certainly far better than no constitutional protection against governmental religious discrimination at all – which is the world that said author thinks that we would be better under.

In my experience, the LDS Church indeed considers both seminary and institute teachers to be rather more akin to youth pastors than instructors of history, doctrine, or theology, and that this trend has strengthened in recent years. It is all about having “spiritual experiences” and exposing students to spiritual uplift on a regular basis. Substantive learning is strictly secondary, if not tertiary.

Mark:

I may have misunderstood the author’s intent (and reading more than the introduction may help significantly), but I understood his argument that religion as religion should not be protected, but rather that religious belief should be treated equally with non-religious ethical or metaphysical belief. I agree with this but would add that both types of belief should be entitled to heightened protection as an individual right under the Constitution. That is, I would expand the meaning of religion under the free exercise clause to include all practices of a metaphysical nature, and include in religious statutory protections such as religious objections to military conscription to include non-religious metaphysical and ethical beliefs.

Nate: FWIW, I think generally speaking requests to be exempt from prison rules, school dress standards, drug laws, etc. to be pretty silly and agree that legal standards where courts have to address “centrality of belief” are pretty dubious. I also agree that “non-religious” ethical or metaphysical beliefs should generally be granted similar protection as religious ones.

However, that more or less amounts to a broadening of the definition of what “religion” is, rather than eliminating the idea of religious protection entirely. Perhaps that is what the author has in mind, but what we have doesn’t help very much, unfortunately.

As a side note, up here in Alberta, mormon seminary teachers who teach release time classes have to belong to the teacher’s union. Thus they fit more into the teacher role than youth pastor one. I am a bit fuzzy on things, but I think this came out when schools had to look at the legality of student supervision during the instructional day.

Nate as I said it’s not clear if the author is going in a more libertarian way, a more statist way, or simply saying that religious protections have to be justified on a more broader basis.

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