Religious Liberty and State Power

Religious Liberty and State Power June 25, 2012

Andrew Sullivan quotes two different views on religious liberty from two well-known sources. Peter Singer suggests that religious freedom can be easily done away with in many situations through what is clearly a pretty specious bit of reasoning:

When people are prohibited from practicing their religion – for example, by laws that bar worshiping in certain ways – there can be no doubt that their freedom of religion has been violated. Religious persecution was common in previous centuries, and still occurs in some countries today.

But prohibiting the ritual slaughter of animals does not stop Jews or Muslims from practicing their religion. During the debate on the Party for the Animals’ proposal, Rabbi Binyomin Jacobs, Chief Rabbi of the Netherlands, told members of parliament: “If we no longer have people who can do ritual slaughter in the Netherlands, we will stop eating meat.” And that, of course, is what one should do, if one adheres to a religion that requires animals to be slaughtered in a manner less humane than can be achieved by modern techniques.

Neither Islam nor Judaism upholds a requirement to eat meat. And I am not calling upon Jews and Muslims to do any more than I have chosen to do myself, for ethical reasons, for more than 40 years.

Restricting the legitimate defense of religious freedom to rejecting proposals that stop people from practicing their religion makes it possible to resolve many other disputes in which it is claimed that freedom of religion is at stake.

Russell Blackford offers the obvious response:

What if your government banned the singing of Christmas carols tomorrow (I owe this example to Graham Oppy, I think)? I doubt that any form of Christianity requires the singing of Christmas carols. So does that mean that Christians (or at least those for whom singing Christmas carols is a valued practice) have not had their freedom of religion impinged on? Surely it doesn’t mean that. We’d still worry that this law was motivated by some sort of animus against religion – specifically against Christianity – and we’d still want to know why the state has any role in enacting laws on that sort of ground.

Here’s how I think such matters should be resolved. First, I don’t think the law should privilege religious beliefs over non-religious ones. I don’t think that a religious motivation to do something is any better or more legally relevant than a non-religious motivation. Second, I think we should apply what the Supreme Court calls the strict scrutiny test to all laws that restrict what we can and cannot do or say. In short, each individual should have the right to do what they want to do unless there is a compelling interest in preventing them from doing it.

This essentially goes back to Jefferson’s formulation of rightful liberty:

Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law,’ because law is often but the tyrant’s will, and always so when it violates the right of an individual.

The question is not when should the government violate someone’s religious liberty, it is when should the government violate anyone’s liberty for any reason. And the answer is that the government should restrict someone’s freedom when their exercise of that freedom denies another person their equal rights or does them harm against their will. There will inevitably be some disputes about conflicting rights, of course, but this basic framework is still valid and necessary for maximizing freedom and still maintaining a civil society.

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