The Fiction of Corporate Religious Freedom

A recent column by Stanley Fish concerns the relationship between believers and the state, specifically how far the state should go in accommodating the beliefs of religious communities – such as Muslims who want to live under sharia law.

Although Fish never explicitly states his own views, he gives the strong impression that he’s on the side of the theists who argue that they should be allowed to have special laws. In particular, he writes that liberal societies by their nature can’t defend “corporate religious freedom”. That’s a very strange phrase, one which he never gives a clear definition for. What could it mean?

It’s not the right of individuals to freely practice their religion in their private lives. That’s covered by the liberal neutrality (actually, “secularism” would be a better word) which Fish only acknowledges with a faint pucker of distaste. It also can’t be the right of individuals to organize, build, and attend churches where their own view is preached. That’s covered by the freedom of association that’s one of those individual rights. No, “corporate” religious freedom means something different, and he tells us what:

…it has been felt with increased force as Muslim immigrants to Western secular states evidence a desire to order their affairs, especially domestic affairs, by Shariah law rather than the supposedly neutral law of a godless liberalism…

This can’t be the mere right of people to contract with each other in a way which provides that disputes, if they arise, will be settled according to religious principles. Again, this already exists; it’s one of those freedoms you have under godless liberalism. (For instance, most multinational banks that do business with Muslim populations offer sukuk loans, a special kind of financial instrument invented to comply with the Islamic prohibition on charging interest). No, “corporate religious freedom” can mean only one thing: that religious communities should be free to create their own laws and apply them to everyone who lives within that community – including people who haven’t agreed to be bound by them.

Islamic communities, presumably, could pass a law requiring all their women to be veiled, regardless of whether those women want to do that or consider that to be part of their interpretation of Islam. Ultra-Orthodox Jewish communities could pass laws forbidding men and women to mingle in public. Roman Catholic communities could forbid pharmacies to sell contraception. Laws could be passed which would require weekly attendance at religious services. And then, of course, there are the blasphemy laws forbidding the dominant religion to be criticized, which I’m sure religious communities of every kind would leap at.

This view which Fish so muddle-headedly advocates is full of huge, obvious problems. First of all, what defines a “community”? A geographic boundary? The membership rolls of a church? Baptismal records? Could I be inducted into a community against my will? Could parents commit their children, and if so, would those children be permitted to opt out?

Second, what would happen to people who break these laws? Would the ordinary police be tasked with arresting those heretics, thus putting the power of the state at the beck and call of churches? Or worse, would religious groups be permitted to create their own police, their own courts, their own prisons, their own ideas of due process that would deal with dissenters and offenders as they saw fit? And how would these laws be passed in the first place – by the majority consent of the community? Or by an unelected council of clerics?

But all this isn’t just a thought experiment. We know exactly what the real-world results of the good professor’s scheme would be. There are already places where religious groups have “corporate freedom”, and this is what it leads to:

The United Arab Emirates’s highest judicial body has ruled that a man can beat his wife and young children as long as the beating leaves no physical marks.

…”If a wife committed something wrong, a husband can report her to police,” Dr al Kubaisi said. “But sometimes she does not do a serious thing or he does not want to let others know; when it is not good for the family. In this case, hitting is a better option.”

This is what they are seeking. This is what “corporate freedom” always amounts to: violence, coercion and theocratic law. How could it be otherwise? For better or for worse, in a secular democracy a group of freely consenting individuals can already pledge to live any way they wish, to mutually agree to practice any religious beliefs they desire. The only other “freedom” they could possibly have is the ability to force their beliefs on people who don’t consent. And that’s what this talk always boils down to: the same old complaint, that respecting their religious freedom means allowing them to take away the freedom of others.

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