Religious freedom is something we all support, but what does it mean? Many Christians are under the impression that it gives a religious person more rights to do something than a secular person would have. It doesn’t. What it means is that someone does not have fewer rights to do something owing to its religious content.
So if people are allowed to meet together to play chess or for a book club or simply to socialise, then religious freedom dictates that they must be allowed to meet for a Bible study or for religious worship. Similarly, a state cannot allow people to participate, say, in this flavour of Protestant or that flavour of Protestant worship, but not in Catholic worship. Religious freedom has most often been infringed by the religious, wanting to elevate their brand of religion above other brands.
In Elizabethan England a whole series of laws prohibited the Catholic mass, prescribed death for Catholic priests, compelled participation in the Church of England, and prescribed the Book of Common Prayer as the only legal form of worship. Such laws culminated in the Popery Act of 1698 and the Test Acts which disqualified Catholics and non-conformists from public office.
Later, the spread of ideas of religious freedom led to the Roman Catholic Relief Acts of 1791 and 1829, which allowed Catholics to practice their religion and to participate in society. This process culminated in what Thomas Jefferson regarded as his finest work, his Virginia Statute for Religious Freedom. Jefferson thought that the state had no proper business involving itself with religion, saying:
The legitimate powers of government extend to such acts only as are injurious to others. It does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket nor breaks my leg.
In much of the world even today there is no religious freedom. In Indonesia it is illegal to be an atheist; In Saudi Arabia one can gather publicly to worship the Abrahamic God in the Islamic fashion but not in the Christian fashion; in some countries one could build a mosque but not a church; in many countries it is illegal to renounce the religion that your family imposed on you as a child.
In the West, religious freedom is so much taken for granted that many have forgotten what the term entails. While it does prevent your religion being deliberately restricted, it does not grant rights to ignore or violate laws that are there for entirely valid secular reasons. No-one would argue that “religious freedom” grants a right to sacrifice a virgin at full moon or to burn infidels at the stake.
A right to do, for religious reasons, what a secular person could not do is not “religious freedom”, it is religious privilege. And the fundamental principle of equality of all people under the law, regardless of religious beliefs, should prevent the state from granting religious privilege.
For example, the British law exempting Sikhs, but only Sikhs, from wearing a helmet while riding a motorbike is an example of religious privilege. I have no objection to the law allowing one to wear a turban instead of a helmet, but, on a point of principle, if this right is granted to some then it should be available to all, not just to those who believe in particular religious doctrines.
The First Amendment of the American constitution is widely regarded as among the finest statements of religious freedom, and it is instructive how that right is interpreted by the Supreme Court. No less a person than Antonin Scalia (hardly an opponent of religion) has explained that religious freedom acts as a “hybrid” right: You have a general right to do something, and you want to do it with a religious motive or content; if you were then prevented from doing it owing to that religious content then your religious freedom would be violated.
For example, the Supreme Court ruled in Wisconsin v. Yoder that the State of Wisconsin would be violating the religious freedom of the Amish if they stopped them home-schooling their children. The argument here was crucial: it was predicated on a general right of all parents to home-school children (the 1925 “Pierce” ruling), provided only that that education was sufficient and adequate to prepare them as future citizens. The state had not demonstrated any insufficiency of the Amish’s religious-flavoured home schooling, therefore it was wrong to demand attendance at state schools. So it was not that religious parents had a right to withdraw their children when non-religious parents did not, it was that all parents did, and thus that that included religious home-schooling.
The “hybrid” rights doctrine was enunciated by Scalia et al in Employment Division v. Smith (1990). The US Supreme Court ruled that:
Although a State would be “prohibiting the free exercise [of religion]” in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.
The only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional protections.
The ruling gives an example of another constitutional protection as “the right of parents … to direct the education of their children” (citing the above Yoder case), and continues:
The present case does not present such a hybrid situation … Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.
Scalia et al.’s ruling was controversial in highly-religious America and led to Congress passing the Religious Freedom Restoration Act of 1993, which states that the government must not “substantially burden a person’s exercise of religion” unless (1) the burden is necessary for the “furtherance of a compelling government interest”, and (2) that the rule is the least restrictive way of furthering that interest. This is clearly an Act establishing religious privilege, since it elevates religious conscience and acts above those of non-religious citizens, thus denying the equal citizenship of the non-religious. It will be interesting to see whether future Supreme Court rulings support and enhance this religious privilege, or instead insist on religious equality.
Turning to the United Kingdom, where religious privilege is still enshrined in an established church, yet where the population is increasingly non-religious (65% answering “no” to the question “Are you religious?”), there are increasingly complaints that religious freedom is under threat from “militant” secularists and that Christians are now “persecuted”.
Government minister Eric Pickles claims that: “long-standing British liberties of freedom of religion have been undermined in recent years by aggressive secularism”, while Church of England Bishop Michael Nazir-Ali asserts that Christians in Britain are facing the “beginning of persecution” and that Christians “will have to struggle for … freedom to express our beliefs”.
Is this really the case? Is it the case that Christians now have fewer rights to voice their opinions and to practise their beliefs than the non-religious do? Or are they merely being asked to follow the same rules as everyone else? If the rules are there for valid secular reasons, and are not aiming to target the religious or particular religions, then they are not a violation of religious freedom. Let’s examine the cases:
One well-publicized case was a court ruling that Bideford Town Council should not include Christian prayers as part of its formal business. Christians were predictably upset (“disgusting”, “disappointing” and “a great pity” being some of the milder comments), yet including Christian prayers in the formal business of the Council is a clear request for privilege, an entanglement of one religion with the state that marks out Christians as primary and non-Christians as second-class citizens.
The ruling did not prevent Christians praying, it only prevented the Council involving itself with formal prayer. It is preposterous that Christians should feel aggrieved or “marginalized”, or that they should complain when their claims to special privilege are increasingly not accepted by others. Of course what they are really seeking is for the Council and other state bodies to promote Christianity as normative, with the non-religious tolerated but forced to accept second-class status by standing around in a respectful silence while the first-class citizens worship their god.
Former Archbishop Lord Carey said that the ruling was an “an empty victory” since councillors could simply pray privately before meetings. Exactly Lord Carey, which is why there is no infringement of freedom of religion!
Another cause célèbre was that of Christian hotel owners who wished to turn away gay couples. Yet everyone else offering a public service is expected to abide by equality legislation; why should the religious be exempt? Provided that the laws are there for sound secular reasons and are not targeted at religions, everyone should be expected to obey them. Being religious and claiming “religious freedom” does not entitle you to pick and choose which laws you obey.
And the same applies to a registrar whose job is to marry people. If a registrar wants to choose which marriages and civil-partnership ceremonies she is willing to conduct, based on her own religious opinions rather than on what the law says, then she is unsuitable for that role and would quite rightly face dismissal.
Nadia Eweida was a BA employee who lost a court case claiming the right to wear a crucifix at work, and is now appealing to the European Court. Does an employer have the right to ask its employees to project a company image and adopt a dress code, and so request that they not display other symbols, such as a Greenpeace badge, a Manchester United scarf, or an Occupy protest emblem? It is widely accepted that the answer is “yes”, at least for customer-facing staff. If that is accepted then there should be no more right to wear a visible Christian emblem. After all, the rest of us are expected to abide by such rules, and the religious should not be a privileged class of citizen whose feelings and desires matter more than ours.
It is reasonable and legitimate for a hairdressing salon to want its staff to display “funky” hairstyles in keeping with the salon’s image, and thus it is reasonable and legitimate for a salon to decline to employ someone who, for religious reasons, wants to keep her hair covered by a scarf. That is a not a violation of religious freedom.
Nadia Eweida was free to wear her crucifix below her outer clothing, but this wasn’t sufficient for her, she wanted to proselytize in work time, saying “It is important to wear it to express my faith so that other people will know that Jesus loves them”. Yet religious freedom does not require an employer to accept an employee proselytizing to customers, any more than they must accept an employee promoting any other cause to their customers.
As well put by Paula Kirby: “Your right to practice your religion no more entitles you to try to save souls in your employer’s time than your right to a family life (equally guaranteed by Human Rights legislation) entitles you to take long phone calls from your spouse during working hours”.
Unfortunately the British government have taken exactly the wrong line on this issue, arguing that an employer prohibiting a visible crucifix does not violate religious freedom because Christianity does not require that one display a crucifix. It is deeply problematic that a government should involve itself in the issue of what is and is not required by a given religion (if a government were to decide on religious rules then that would be a violation of religious freedom), but, further, this implies that if displaying a crucifix were a religious requirement then employers would have to allow it. Why? What gives a religious person more right to manifest their beliefs with a visible symbol than, for example, a Manchester United fan wanting to manifest his fandom with a visible symbol? That would be religious privilege, not religious freedom.
I often meet an incredulous and aghast response to that argument, as though it were “obvious” that a desire to wear particular clothing for religious reasons is of far greater consequence than a desire to wear particular clothing for other reasons, such as being a fan of Manchester United. But this is only “obvious” to someone steeped in a culture of religious privilege: the idea that religious sensibilities matter more than the sensibilities of other people, which relegates the non-religious to second-class status. Why is an opinion or desire treated as less important just because it doesn’t involve supernatural deities?
How about if someone declared that their god and their religion demand that they always display a Man Utd scarf? Does that then elevate the wearing of the scarf to a level that an employer must accept? A bad answer is that only old and well-established religions with lots of followers get such privileges, whereas newfangled cults and recently made-up religions don’t. The basic secular principle of religious freedom requires that the state stay out of pronouncing upon what is and what isn’t a religion or a religious requirement — that is surely up to the individual and their beliefs.
Christians are being “persecuted” and “driven underground” and are “vilified by state bodies” in a nation that displays “clear animus to the Christian faith” claims former-Archbishop Lord Carey. No they aren’t, they are simply being asked to abide by the same rules as everyone else, and to accept that they have no more rights than anyone else, and that their religious beliefs do not entitle them to special privilege.
“Christians are not seeking special rights but merely trying to overturn unfair verdicts which create a hierarchy of rights in which Christians are at the bottom of the pile” claims Lord Carey. This would be a valid complaint were it true. But is it? Are atheist hoteliers allowed to turn away Christians, but Christian hoteliers not allowed to turn away gays? Are declarations of atheism included in formal council business yet prayers banned? Are crucifixes banned in workplaces where a Manchester United necklace is permitted? Or is it merely that the same rules are being applied to us all?
Let’s be entirely clear: religious freedom does not mean you have more rights owing to your religious beliefs, it simply means that you don’t have fewer rights. And insisting on that is not an example of “dim-witted prejudice” Mr Rowan Williams, but, rather, a recognition that both sides of that point are essential to the full equality of all citizens.
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