This was written for Scientia Salon, and partially repeats some of my previous posts.
In the all-time lists of Good Ideas the principle of religious freedom ranks high, preventing much strife and war and thus being responsible for saving more lives than penicillin and vaccination combined. [1]
“The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg”, wrote Thomas Jefferson, who rated his Virginia Statute on Religious Freedom as his finest accomplishment. [2]
Yet, despite the fact that the principle of religious freedom is now universally accepted in the civilised world, [3] there is much less agreement on how to interpret it. Indeed, my thesis here is that the principle is widely misunderstood.
This is not a minor matter of no practical import. Thanks to the rather weird way in which America organises health care, for example, whether a woman has access to contraception can depend on a court’s interpretation of religious freedom. Despite the fact that I’m not American I’ll discuss religious freedom in the American context, partly out of admiration for the secular principles established by Jefferson, Madison and others, but also because having a written constitution (in contrast to the un-written British one) makes it easier to do. [4]
Much of the commentary over the Hobby Lobby ruling concentrated on the doctrine of “personhood” assigned to corporations. [5] However, as I see it, the more important issue is the Religious Freedom Restoration Act of 1993 that underpinned Hobby Lobby. [6]
Only three Congressmen opposed that Act. Who would want to vote against religious freedom? You’d get more votes against apple pie and fluffy kittens. Yet the Act’s very name was a triumph of spin, since a better title would have been the Religious Privilege Establishment Act.
The Act requires that, in anything the government does, it must tiptoe around religious sensibilities, such that it can only “burden a person’s exercise of religion” if it has a “compelling government interest” and also does so “in the least restrictive way”. What might burden a person’s exercise of their religion is for them to decide.
This law could make government pretty unworkable if it has to keep finding “least restrictive ways” of doing anything that any religious person dislikes. You’d only need two or three religious groups with conflicting requests and you’d quickly get into a mire of court cases.
But, more to the point, the law is blatantly unconstitutional since it divides citizens into first class and second class. The consciences and requests of the first-class citizens, the religious ones, must be taken into account. The consciences of the non-religious citizens don’t matter; the government can burden them all it likes.
That violates the basic doctrine “that all men are created equal” upon which America was founded. As Tom Paine wrote in Common Sense, the pamphlet that inspired a revolution: “All men are by nature equally free and independent. All men must be equal to each other in natural law”. [7]
By promoting religion in this way the RFRA “establishes” religion above non-religion. It violates the Lemon Test (the Supreme Court’s test for constitutionality) since it clearly advances religious practice over non-religious practice, while its purpose is to benefit religious people over the secular ideal of equality. [8]
This isn’t only my opinion, indeed the Supreme Court itself has ruled that the RFRA is unconstitutional, with Justice Kennedy writing: [9]
“Legislation which alters the meaning of the Free Exercise Clause [of the First Amendment] cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation.”
However, that ruling applied only to the states, not to federal government. And thus Hobby Lobby proceeded on the basis of an unconstitutional Act (which can happen when neither side chooses to challenge a statute, and no third party has the “standing” to do so).
So why was the RFRA passed? It was a reaction to Employment Division v Smith, a 1990 ruling where the Supreme Court, in a judgement written by Antonin Scalia (of all people!), had got religious freedom exactly right: [10]
“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.”
In other words, religious people have to obey the law just like everyone else and do not get special trump cards. Provided the law is applied to everyone for a proper secular purpose, it is not a violation of religious freedom. Such a law would only infringe religious freedom if it restricted just the religious people, or if it restricted everyone but with the motive of restricting religion.
Scalia’s ruling continued:
“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.”
The US Congress did not like Scalia’s ruling because Congress is overwhelmingly religious [11] and religious people tend to feel they are entitled to special consideration and special rights to ignore rules that they do not like. All they need do is claim that the rules are against their religion.
Thus, if there is a ban on students bringing knives to school — a ban applied for secular reasons and applying to everyone — then many will think that of course they need to exempt Sikhs from the ban, since carrying a knife is a requirement of the Sikh religion. The concept of religious freedom is so misunderstood that even some staunch atheists and secularists can think that! [12]
I’ve no objection to pupils carrying tiny, symbolic knives, but, on a point of principle, if one pupil is allowed to do so then so should be another; the right should not depend on being a Sikh. That is the only interpretation consistent with the even more basic principle of equality under the law. A rule allowing an act only by the religious would be religious privilege.
Religious people should not get extra consideration; the non-religious should matter just as much. Why treat the feelings and desires of the non-religious as less important just because their beliefs don’t involve supernatural deities?
So what, then, does religious freedom mean if it does not mean that the religious get extra rights and consideration? Simple, it means that they do not have fewer rights. They do not lose the right to do something owing to its religious nature.
Thus, if secular jewelry is allowed, then it would violate religious freedom to ban a crucifix. Or, if a student is allowed to carry a copy of Huck Finn, then they must also be allowed to carry a Bible.
As Jefferson wrote in the Virginia Statute:
“That our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry […] opinions in matters of Religion […] shall in no wise diminish, enlarge or affect their civil capacities.”
Note both of the words “enlarge” and “diminish”. Religious Freedom is essentially equality.
To understand the concept, realise that it originated as a reaction to impositions by other religious people. In Middle Ages Europe it was common for one form of religion to be mandatory and other forms banned. Thus, one could gather with friends in public to have a picnic or play football, but not to hold a prayer meeting led by the wrong flavour of priest.
Religious freedom prohibits the restriction of religion for religious motives. For example, in England the Test Acts had disqualified Catholics and non-conformists from public office. In reaction to that Article Six of the US Constitution banned any such religious test. [13]
This was the understanding of religious freedom upheld by the Supreme Court in Scalia’s Smith ruling, which stated:
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.
That became known as the doctrine of “hybrid rights”, which I consider to be correct but poorly phrased. To see how this works, consider “the right of parents […] to direct the education of their children”. That was the central issue of the Yoder case, and the logic of the ruling is important.
In defending the right of the Amish to home-school their children, the Court was not granting rights to religious parents that the non-religious did not have. Rather, the court held that all parents had the right to home-school their children, so long as the education was adequate to prepare the children as future citizens. Thus, the state could not object to Amish home-schooling just because the Amish home-schooling was religious. [14]
What the doctrine of “hybrid rights” really means is that you have a right to do something with a religious motive and with religious content, if and only if a secular person would have the right to do much the same but from a secular motive.
The older term for the concept of religious freedom was “religious toleration”, and I consider that to convey the proper meaning more clearly. It says that you don’t lose your rights to speak or act owing to the religious content of your speech or acts. Thus the British Act of Toleration (1689) allowed non-conforming Protestants the same freedoms that adherents to the Church of England already had (it didn’t, yet, extend that to Papists and outright infidels, but it was a start). [15]
Yet, somewhere along the way, this idea has become misunderstood and has morphed, in the minds of many, into the doctrine that an act deriving from a religious motive is specially privileged. This derives from the same mindset that regards religion as an automatic Good Thing, and thus deserving, to give an other example, of charitable status and exemption from taxation. [16]
We should reject the idea that a desire to do something owing to ones religion counts for more than a desire to do something for any other reason. Aren’t we all equal? If it is considered that a rule would be too burdensome to impose on a religious person, then we should conclude that it is too burdensome to impose on anyone.
A US Federal Court has recently ruled that Secular Humanism is a “religion” for Establishment Clause purposes. Strangely, the American Humanist Association had actually asked for this! Why? Because special privileges are granted to the religious! In many jails inmates who self-identify as “religious” get more time out of cells (for religious ceremonies), greater rights to meet with other inmates (for prayer or study groups), privileges on religious holidays, and often a better choice of food (if religious dietary “requirements” are claimed). [17]
If we think that inmates should be allowed out of cells to study the Bible or the Koran then equally they should be allowed out to study the plays of Shakespeare or the writings of Mark Twain. And, if it is considered reasonable to allow inmates some discretion over the food they are given, then this discretion should be afforded to all.
Another problem with granting extra privileges to the religious is that it requires the state to rule on who is or is not religious and what is or is not a religious requirement. That is a violation of the whole principle of American secularism, which is based on the government staying out of such areas. As “father of the Constitution” James Madison wrote in 1822, “And I have no doubt that every new example [of separation between ecclesiastical and civil matters], will succeed, as every past one has done, in shewing that religion & Govt. will both exist in greater purity, the less they are mixed together”. [18]
That can only be done from a stance of equality. If the choice of food or time out of cells is the same for all prisoners, then the prison need not concern itself with the presence or absence of religious motive.
This worry was expressed by Justice Ginsberg in her dissent from the Hobby Lobby ruling. “The Court, I fear, has ventured into a minefield”, she said, and continued (quoting past rulings):
“There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude”.”
The chances of getting the Religious Privilege Establishment Act overturned anytime soon, given a Congress dominated by Christians, are of course low. The cynic in me can’t help noticing that Scalia’s spot-on Smith ruling concerned a Native American religion, whereas Hobby Lobby concerned matters of contraception on which Catholic theology has views. [19] Perhaps the best hope would be if members of unpopular minority religions start asking the courts for RFRA rulings.
Arguing like this for religious equality can meet an aghast reaction from those who have been conditioned into thinking that of course a request to wear a religious emblem counts for more than a request to wear the emblem of ones favourite football team, and that of course a request for time out for religious devotion counts for more than the same request for browsing the web.
This attitude is presumably a relic from the days when the state religion was held to be true and thus religious requirements were considered to be normative. But the doctrine of religious freedom itself implies that adherence to any religion is a personal choice, and thus the requirements of that religion have the status of personal choices, and thus have the same status as the personal choices of anyone else.
In these days of secular equality we can’t have rules predicated on the truth of any religion, and nor should the state presume that religion is an automatic Good Thing that must be indulged. In the UK today, over half the population describe themselves as not religious and over half think that, overall, religion causes more harm than good in society. [20]
We should fully support religious toleration — the freedom to practise ones religion with the same freedoms to speak and act that anyone else has — but we should also insist on equality under the law and stand firm in denying requests for religious privilege.
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[1] This is a rhetorical flourish, don’t ask me for stats to back it up!
[2] The quote is from Notes on the State of Virginia. For the Virginia Statute for Religious Freedom see the wiki page.
[3] Since anyone not accepting it is uncivilised.
[4] I’m presuming that readers will be sufficiently familiar with the First Amendment to the United States Constitution, which states that Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”. The same restriction is held to apply to actions by all levels of government.
[5] Wiki page for Burwell v. Hobby Lobby, 2014.
[6] Wiki page for the Religious Freedom Restoration Act of 1993.
[7] The phrase, of course, is the central doctrine of the 1776 Declaration of Independence. Earlier that year, Paine’s Common Sense had roused the people.
[8] The three-pronged Lemon Test, enunciated in 1971, is the Supreme Court’s test for violations of the Establishment Clause of the US Constitution.
[9] City of Boerne v. Flores 521 U.S. 507 (1997)
[10] Employment Division vs. Smith, 494 U.S. 872 (1990)
[11] After the recent elections there is once again no openly atheist member of Congress.
[12] Here is a rare case of staunch secularist and atheist blogger Hemant Mehta being in the wrong.
[13] Wiki pages for the Test Acts and for Article Six.
[14] Wisconsin v. Yoder, 406 U.S. 205 (1972).
[16] The US subsidises religions to the sum of $71 billion a year owing to tax breaks.
[17] Comment on American Humanist Association v. United States.
[18] James Madison, Letter to Edward Livingston, 10 July 1822. The letter remains relevant today. E.g., “Notwithstanding the general progress made within the two last centuries in favour of this branch of liberty, & the full establishment of it, in some parts of our Country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between Govt. & Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded agst.”
[19] Six of the nine Supreme Court justices, and all five of those who voted for Hobby Lobby, are Catholics. The remaining three are Jewish.
[20] Poll by Survation for HuffPost UK, Oct 2014.
coelsblog 
Thank you, Coel, for a well reasoned analysis.
As usual, Coel, your analysis is excellent. You speculate that the reason Employment Division vs. Smith was surprisingly decided by this court against religious privilege is because a small minority religion was seeking privilege. Another speculation for why this court surprisingly got the right result is they were ruling against permission to use mind-altering drugs.
I think I’ve commented on this before, so you can probably predict my response to this. But I’m going to try to express it differently by making an analogy to abortion and a woman’s right to choose. Note that this is being used as an example, and all comments on that case aren’t supporting or arguing against any particular view, so the presumption at least will be that women do indeed have a right to choose that requires them to have access to abortion.
Let’s start here, with a more minor point:
So, let’s start with the analogy. There is a movement within certain groups to demand in reaction to abortion rights what is called “Choice for Men”, where men also get an option before birth to sign away all rights and responsibilities to a child if the woman decides not to get an abortion and the child is born. The argument for this is generally not based on the idea that women get to terminate unwanted pregnancies because they don’t want to be pregnant, mostly because the immediate response to that would be that men and women are dissimilarly situated here, and so since men can’t get pregnant they never need to terminate a pregnancy that they are having but don’t want to be having, and so this wouldn’t create any sort of privilege for women that needs to be addressed. The right to choose, the argument goes, is applied to the pregnancy here, and so people who don’t get pregnant just aren’t eligible for that.
So the usual argument in c4m is to say that the right to choose doesn’t just include the right to terminate an unwanted pregnancy, but also to terminate the unwanted financial obligation that the child would bring. A woman, then, who was okay with being pregnant but who knew that the biological father would take custody if she didn’t have an abortion and so wanted to avoid her financial responsibilities in that case still has the right to terminate the pregnancy and avoid that, and that IS a right that would also apply to men , and so not providing a mechanism for men to do that if they also so chose would be privileging women over men, and so creating an inequality in rights that must be addressed.
(Of course, the obvious counter is that women do that by ensuring that there is no financial responsibility at all, which cannot be provided in any c4m scheme. But I think that’s enough to make the analogy).
Turning to freedom of religion, the whole purpose of freedom of religion is to protect religious practice: you must be allowed to practice your religion or not practice any religion no matter what religious beliefs anyone else has. This means that there is indeed a difference between religious stances and non-religious stances, which must either be protected by other rights or not get protected, since freedom of religion as a right protects religious practice. You don’t seem to be opposed to that in general, and so have to accept that non-religious practices like supporting your favourite sports team are not protected under the right to freedom of religion for the same reason that c4m in the first argument wouldn’t be: the individuals in that case are dissimilarly situated. But secular humanism DOES get protection because it is at least in part a religious stance, even if its stance is not to have one, and so the aspects of it that relate to its stance on religious get protected by freedom of religion. At that point, they ARE religious practices for the sake of the right to freedom of religion, and so ARE similarly situated. So the only way to argue that the right to freedom of religion privileges religions over totally secular and non-religious practices is to argue against a specific right to freedom of religion … which you can’t do while appealing to the Establishment Clause, which explicitly singles it out.
But on to what that all means:
We both agree that freedom of religion means that the state cannot explicitly make a religious practice illegal, by making a law that either makes that religion illegal or makes a religious practice illegal for the purpose of restricting that religion and its practices. The question is what happens when a law restricts a right-guaranteed freedom implicitly, by introducing a law that restricts that practice but for another — and valid secular — reason. So let’s return to the analogy.
Imagine that a law is written that says that all medical procedures that could be done to save someone’s life cannot be done in a clinic. This is to ensure that all the trained medical staff and equipment are on hand to deal with the aftermath and with the situation, which clinics might not have. So a reasonable — if maybe shaky — purpose. However, since abortions obviously can be done to save someone’s life, this would mean that all abortions — including the elective ones — would have to be done at a hospital, which would mean that abortion clinics would be shut down. But this could greatly impact women’s access to abortion (in fact, there are a number of protests going on over insisting that abortion doctors must have admitting privileges to hospitals, because it limits access to abortion, especially for poor women). So a challenge could be made that the law restricts a woman’s right to choose an abortion, and the argument would be that it restricts their choice, the purpose of the law is not to restrict elective abortions, and the law could be implemented without imposing that restriction, by either excluding elective abortions explicitly or just excluding abortions completely. At that point, I think it is a reasonable argument to say that the law ought to be changed so that it doesn’t restrict this right that it had no intention of restricting.
The same thing, then, applies to freedom of religion. If a law is introduced that restricts a religious practice, does not intend to restrict a religious practice, and whose purpose can be easily achieved WITHOUT restricting that religious practice, then just the NOTION of a right means that the law should be changed to not restrict that religious practice, just like the law should be changed to not restrict ANY right. Laws ought not restrict rights without reason, and the only reason that counts when you are dealing with implicit restrictions is that the law cannot be implemented in a way that doesn’t restrict that right. If it can, then it must. And one of the key arguments in the Hobby Lobby case was that the government had already proven that they could provide contraception to people even if their employer opted out. So this is something that applies to all rights, not just the right to freedom of religion.
Hi Verbosestoic,
Your comparsion with abortion is an interesting one, which I’ve not considered before. As you say, there is a fundamental asymmetry between men and women in the biology, so for that reason we would not expect full equality in the laws.
On the proposal that men can sign away all rights and responsibilities if the woman doesn’t get an abortion, I might be in favour of that if the only parties involved were the man and the woman. But the child is also an interested party, and has no say in those pre-birth negotiations. I would thus not allow a man to sign away responsibilities, but that’s because of the interests of the child, not of the woman.
That doctrine is what I disagree with. I disagree with any interpretation of “religious freedom” that makes an act with religious content privileged over a similar act with no religious content.
But the only way to disagree with that and be disagreeing with the doctrine I’m talking about is to deny that there is a specific right to freedom of religion, because all I’m saying here is that actions that don’t have religious content aren’t protected under the right to freedom of religion. This does not mean that actions that have religious content but are based on not believing in ANY religion aren’t protected, because they are. It just means that if the action has no bearing on and takes no position on religion, it’s not covered under the right to freedom of religion, for the obvious reason that it’s not ABOUT religion at all.
The only argument you can make here, it seems to me, to preserve freedom of religion AND deny what I’ve said above is to insist that “freedom of religion” is not itself a specific, basic right, but that instead it is justified by another right, and that right applies to the other cases as well. The problem with this is that it seems pretty much false, as there are indeed cases where religious freedom is required but the other cases aren’t. To take your own example, if a city adopted an official sports team, and gave it special privileges — like, say, a reduction or elimination of taxes on their products — would that violate anyone’s rights? It certainly doesn’t seem that way. But if a city adopted an official religion, and exempted that religion from taxes while making all others pay them, we’d think that violated freedom of religion. A public school could adopt a sports team and hold rallies for it, while they couldn’t do it for a religion. And so on and so forth. So there seems to be a specific right to freedom of religion, because there are a number of cases where a religious position is protected by rights where non-religious positions aren’t, and ought not be. You can try to argue that that is bad if you want, but that would certainly not be just obvious.
So, either there is a specific right to freedom of religion or there isn’t. If there isn’t, then some of the exceptions you want for religious views aren’t supported either, or else you have to be stricter about non-religious cases than we usually are. If there is, then my argument holds: non-religious positions are not covered under a right to freedom of religion because they don’t trigger that specific right, which does not mean that they can’t be protected under another right as well in some cases.
Hi Verbosestoic,
Yes, that is my stance. For example, one can regard much of “freedom of religion” as a subset of the more general right to “freedom of speech”. If you have a right to free speech generally, then you can advocate and indulge your own religion. I deny that “religious freedom” gives anyone rights that aren’t covered by more general rights.
I would not see that as violating “freedom of religion”, I’d see it as violating the principle of a secular state and church/state separation. In American terms, “freedom of religion” is the free-exercise clause, whereas non-promotion of religion is the non-establishment clause.
I see both of these principles as important, but they are not the same. Both of them, though, can then be seen as aspects of an even more fundamental principle of equality.
It may sound academic, but closure to this topic would come more trivially if religious beliefs were universally unwanted by humans.
I am not alone when I say that I have no religious bone in my body. It is not hard to imagine that human civilization is, indeed, progressing toward a stage where there are no religions.
Until then, religious freedom is imperative as it paradoxically protects those who are not religious (probably the most!).
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