Attorney General Jeff Sessions scores 8 out of 20 on Religious Freedom

The US attorney general, Jeff Sessions, has issued a memo directing government bodies on how to interpret religious freedom. Unfortunately Sessions misinterprets religious liberty as granting religious people greater rights than the non-religious have. This is a violation of the deeper principle of treating all citizens equally, regardless of their religious views.

Viewed from the stance of equality we can properly understand religious freedom as a form of free speech. That is, you may espouse your religious views, and if you have a general right to do something you may do that same thing with added religious content. Further, the state may not treat you any less favourably owing to that religious content, but nor may it treat you more favourably.

From that perspective, let’s score Sessions’s memo, in which he declares 20 “principles of religious liberty”.

No “reasonable accommodation” for religion!

Baroness O’Neill, chair of the UK’s Equality and Human Rights Commission, has recently given a speech, hosted by the Theos think tank, on freedom of expression and religion of religion. There is much that is good in the speech. In particular I agree wholeheartedly with her view that:

There is no way of securing freedom of expression if we also maintain that there is a right not to be offended. Speech acts that incite hatred, or that intimidate, or that defraud, or that abuse, can be regulated without putting freedom of expression at the mercy of others. But if there were a right not to be offended, this would put everyone’s freedom of expression at the mercy of others.

Baroness O’Neill counsels:

What then should one do if one hears, reads or sees something that one considers offensive, perhaps deeply offensive? The basic thing is to remember is that unless the offending speech act was wrong in some further way (e.g. it was defamatory, or incited hatred, or was fraudulent), no right has been violated, and no remedy of the sort that respect for rights requires is needed.

But, there is one major area where I want to argue that Baroness O’Neil is misguided. And this is the fundamental matter of what we mean by “freedom of religion”. The Baroness says that:

Three cheers for religious toleration

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.

Religious freedom and equality in a nutshell

Reading the British newspapers each morning I’m often irked by the reporting of religious-freedom cases. I’ve posted before about how misunderstood the concept of “religious freedom” is — it shouldn’t grant anyone extra rights, that would violate the equally important principle of equality under the law. In a nutshell religious freedom means this: you should not be imposed upon for religious reasons. That’s it.

Of course society can have every right to impose on you for good, secular, non-religious reasons, even if these impositions affect your religious practice. Such restrictions, if they apply to everyone, are not a violation of religious freedom. But no-one may impose on you for reasons motivated by religion, either their promotion of their own religion or their dislike of yours.

Treating people equally, regardless of their religious views, is as important as religious freedom. Indeed the concepts of religious freedom and religious equality are entwined and inseparable. In the 1786 Virginia Statute for Religious Freedom, one of the first and finest declarations of the concept, Thomas Jefferson declared:

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.

The word “enlarge” is as important there as the word “diminish”.

Equality, Deism and Jefferson’s Declaration of Independence

A long-running feature of America’s “culture wars” is the Religious Right’s assertion that the United States is a Christian nation founded on Christian principles. Unfortunately for them the Constitution does not invoke “God” (though Christians sometimes point in desperation to a mere dating convention, the signatures being dated “In the Year of our Lord”). The authority for the constitution is not God, it is “We the people”. This is not a top-down authority from an anointed King ruling by Divine Right, it is a bottom-up authority, the idea that legitimate government arises from the “consent of the governed”.

Contrary to Religious Right claims, God’s absence in the constitution was not an oversight — reference to God was not something regarded as too obvious to need stating — it was considered and deliberate. We’re told, by Luther Martin, Attorney General of Maryland and delegate to the Constitutional Convention, that those regarding the United States as a “Christian nation” were an unfashionable minority who did not prevail and were outvoted by the “great majority”. Reporting back to Maryland Legislature he commented on Article 6:

The part of the system which provides, that no religious test shall ever be required as a qualification to any office or public trust under the United States, was adopted by a great majority of the convention, and without much debate; however, there were some members so unfashionable as to think, that a belief of the existence of a Deity, and of a state of future rewards and punishments would be some security for the good conduct of our rulers, and that, in a Christian country, it would be at least decent to hold out some distinction between the professors of Christianity and downright infidelity or paganism. [Farrand’s Records–CLVIII. Luther Martin: Genuine Information.3]