Religion and Human Rights (34): What Happens When You Want to Make Politics and the World More Religious?

You’ve probably guessed from the title where this post is heading, so in order to avoid the obvious misunderstandings I’ll reiterate my basic position on the role of religion in contemporary society: I’m an agnostic, but I fully understand the importance of religion for religious people; I believe that part of the function of human rights is to protect those people, and that another part of that function is to protect the rest of us against them; yet I don’t believe some of the overblown but unfortunately very fashionable statements about the extent of the religious threat to society; and neither do I believe that principles such as the separation of church and state imply religion should have no voice at all in democratic politics.

So, now that this is out of the way, let me try to answer the question in the title. The answer will be predictable, but perhaps also somewhat illuminating in the details.

In modern-day democracies, rulers no longer claim a divine right to rule and most of them admit that they don’t have the authority to further the cause of God on earth by violent and coercive means. They can speak and persuade, but wars against against foreign sinners and oppression of domestic heretics is not done. However, the word “most” does a lot of work here. Many democratic politicians, backed by their religious supporters, still try to shape politics and the law according to religion and try to use those earthly powers as means to make the world more religious. That’s fully consistent with the universalist claims inherent in their religious beliefs: their God isn’t just their God but the God of all humanity, and all of humanity has a duty to obey the word of God. If this obedience can be promoted through the use of politics and the law, then religious citizens have a religious duty to try. Their attempts typically follow a number of steps:

1. Demand religious freedom

They start of from the very reasonable claim that they themselves have a right to live their own lives according to their religious faith, unmolested by the state or by other citizens. The first of their religious duties is to obey the word of God themselves, and they should be allowed by the state and the law to do so. That is indeed their human right and they are entirely justified in using politics and the law to protect that right.

2. Demand religious exemptions

However, some religious people interpret this right to religious freedom in a rather loose way. For example, they see this right not merely as a means to fend off anti-religious and hostile legislation or other forms of state action intentionally interfering with their religion (or hostile private action for that matter). They see their right to religious liberty also as a right to disrespect general and non-religiously motivated legislation which they believe violates the word of God.

For example, a law imposing a military draft may be seen as illegitimate by the adherents of a pacifist religion, and a law requiring the use of crash helmets should not be forced upon the followers of a religion that demands the wearing of turbans. Hence, religious people often demand that they should be exempted from the application of certain laws – or at least their right to conscientious objection should be respected – when they view those laws as being against the word of God.

I’ve argued elsewhere that such exemptions – which take us one step further than simple religious liberty – can be justified in some cases, but that we should be careful not to undermine the rule of law.

3. Demand religious laws

Some want to go even further than that. From the point of view of a religious person, the two previous demands on politics and the law were strictly self-regarding: religious people should be allowed to live their own lives according to their own beliefs. However, as I stated above, religion is hardly ever purely self-regarding. Most religious people feel a strong urge to work for the salvation of their fellow human beings. Hence, instead of demanding personal exemptions from laws that inadvertently violate the requirements of their religion, some religious people want to abolish the laws in question and replace them with laws that better promote those requirements.

If we take the same example as above, they may want to abolish the law imposing a military draft, rather than just asking for a personal exemption. Their religion requires not just that they personally refrain from violence, but that humanity does so as well. Hence they would like to end the military altogether rather than just their personal participation in it.

Or take the more salient example of laws permitting same-sex marriages. Many religious citizens claim a right to abolish such laws. Their religion doesn’t permit what these laws permit. And even if they have received a personal exemption so that the laws don’t force them to act against their religion (same-sex marriage laws don’t force people into a same-sex marriage, nor do they force people to validate and recognize the same-sex marriages of others), laws such as these do make it possible for other people to act against the word of God. Hence, some religious people want the abolition of such laws, thereby saving people in the eyes of God. However, the implication is that people’s rights are violated by the religiously inspired removal of laws that guaranteed people’s rights. Maybe religious people want to claim that this is the price to pay for the preservation of their right to religious liberty, but I fail to see how people’s religious liberty is violated by the self-regarding actions of others. (More on the relationship between religious liberty and same-sex marriage is here).

4. Demand religious laws that violate human rights

Now, it’s perfectly OK for religious people to try to move the law in a certain direction, just as it is OK for other people to try to move the law in their preferred direction. I don’t buy the theory that says that in a diverse and tolerant modern democracy religious people should refrain from using religious reasons for legislation or the reform of legislation (sometimes called the Doctrine of Religious Restraint). Religious people are allowed to work against what they see as anti-religious laws and also to promote religiously inspired laws, on the condition that the laws we end up with have managed to convince a majority and do not violate the rights of others (see here for a detailed version of this argument).

For example, a law abolishing the draft or the military could be a religiously inspired law (although it can simultaneously be inspired by secular reasons), but it could also be acceptable when it’s clear that it doesn’t violate anyone’s human rights, e.g. assuming there is no military or terrorist threat. When there is such a threat the law could lead to rights violations and hence should be resisted. Things are clearer in the case of a religiously inspired law outlawing same-sex-marriage. Such a law should always be resisted since people have a human right to get married. The same is true for blasphemy laws and a whole range of other religiously inspired laws.

The efforts by religious people to make politics, the law and the world more religious go too far when those efforts include legislation

  1. that makes non-religious people or people adhering to another religion live according to the precepts of the legislator’s religion, and
  2. that violates the human rights of some.

Those efforts are understandable from the point of view of the religious legislators, since their religion requires them to work for the salvation of everyone, but they are not acceptable.

5. The ultimate step

So there’s an increasing intensity in the demands to make politics, the law and the world more religious: the law should not intervene with religion; then the law should be more considerate of religion and provide exemptions; then it should promote religion; and then it should promote religion even if that means violating the human rights of some. If, however, there is something blocking this increasingly intensive intervention and the law and politics do not cooperate sufficiently, some religious people will take matters into their own hands. After all, one can’t accept that the word of God is trumped by an anti-religious democratic majority or by a religious law that isn’t sufficiently respected. Direct action to make the world more religious is then required. You may then see someone attacking a Danish cartoonist for being blasphemous. Or someone else killing abortion doctors. Fortunately, very few religious people go all the way, which is the reason for the optimism I expressed at the beginning of this post.

Should we conclude from this that it’s best to keep religion as far away as possible from politics and the law? I don’t think so. As long as religious people respect human rights they can do as they please. Given the importance of religion to many of us, it’s illusory in the best case and counterproductive in the worst case to try to artificially ban religion from politics and the law.

Other posts in this series are here.

Limiting Free Speech (51): Speech That Intends to Get Someone Fired

What if someone tells an embarrassing or potentially harmful truth about someone else to his or her employer, with the intention of convincing the employer to fire this person? Are we allowed to limit the speech rights of the speaker in question (for example, by way of the imposition of a fine, the payment of damages to the person fired or an order to remove internet pages)? And does it matter if the speaker addresses only the employer or the public at large (perhaps in the former case we’re not really dealing with free speech)?

Take this example:

Appellant Derek Schramm is a parent of children enrolled in a Roman Catholic grade school in Minneapolis. Respondent Zachary Faricy is a teacher at the school. In November 2001, Schramm sent a letter to the school principal and the parish pastor informing them of his suspicion that Faricy “might be a homosexual.” (source)

Let’s assume that we’re not dealing here with incitement to commit illegal acts. Discrimination of homosexuals is often illegal, but many religious institutions are exempt from such a rule. (Whether or not that’s a good thing is another matter, briefly discussed here). Hence if silencing this particular speaker is indeed a warranted exception to free speech then it must be one that’s different from the established exception regarding speech that incites illegal activity.

Let’s also assume that we’re not dealing with libel. Perhaps the target in this particular case is indeed a homosexual and has therefore good reason to fear that his Catholic employer will fire him if this fact about him becomes known. Libel is usually defined as a false claim intended to harm someone’s image and reputation, and so that’s not what our example is about. The intended harm is dismissal of the teacher. Like incitement to commit illegal acts, libel is an established exception to free speech rights, and one that I also want to exclude from the current discussion. What I want to do here is see whether speech that intends to get someone fired and that is neither libel nor incitement to commit illegal acts, should always be protected.

Now, speech that incites employers to fire people does impose certain demonstrable harms: the target’s right to privacy is violated, as is his or her right to a decent standard of living (in the case in which the target may not find another job in the short term). So, a priori we could have an argument here in favor of prohibiting speech that incites employers to fire people. Normally, limits to free speech can be acceptable if they are necessary in order to avoid greater harm to other human rights.

However, if we want to allow limits on speech that incites employers to fire people, would we not also be forced to accept the prohibition of public protest aimed at getting a racist or sexist radio host fired? That seems to go very far. Maybe we can limit the free speech exception as follows: in the Catholic school case the speech was directed at a single person – the employer – whereas in the case of public protest the audience is much larger. Still, that’s not a very promising route. The inciter in the Catholic school case may drum up support among other parents or write to the local Catholic newspaper if a private letter to the employer doesn’t do the job.

It’s true that the nature of the audience and the circumstances in which speech occurs can make a difference – hate speech in an obscure periodical should not necessarily be forbidden, but hate speech in front of an excited mob about to attack someone is different. But the same difference doesn’t apply here I think.

In the case of speech that incites employers to fire people – whether it’s private speech or public speech – I would prefer not to impose limits on speech but rather change the law so that it is illegal to fire people for their beliefs, words or lifestyle. And yes, that may include revoking religious exemptions to employment discrimination. After all, how exactly does it harm someone’s religious freedom if his or her children are educated by a homosexual teacher?

More posts in this series are here.

The Ethics of Human Rights (55): The Widening Circle of Equality

Allow me to engage in some simplistic historical generalizations. Although, like most us, I have abandoned my youthful illusions about the overall progress of humanity, I still think we’ve taken giant steps towards the moral ideal of human equality. See what you think about this:

  • During the 17th, 18th and 19th centuries, with the formation of the nation state in Europe and the development of the virtue of patriotism, citizens of those new states – and their copies elsewhere in the world – stopped acting as if members of neighboring tribes were somehow subhuman. Human equality, equal concern and equal rights were extended from the tribe to the nation.
  • After the end of the religious wars in Europe in the 16th and 17th centuries, and the gradual acceptance of religious liberty, adherents of other religions were no longer viewed as sinners who had to be destroyed, but rather as equal citizens enjoying the same rights.
  • From the middle of the 19th century (with the abolition of slavery) to the middle of the 20th (with the Civil Rights movement), non-whites gradually won equal rights.
  • During roughly the same period, workers and the workers’ movement convinced the other social classes that someone who has to sell his or her labor power for a living isn’t destined to an animal-like life in filth and misery.
  • From the beginning of the 20th century (with the suffragette movement) until the end of that century, women gradually won their equal place in many areas of society: politics, the labor market, etc. This movement, like all the previous ones, isn’t complete, but at least nowadays it’s rare to encounter the view that women are lesser men and should be relegated to the home.
  • The Holocaust, ironically, resulted in a dramatic acceleration of the emancipation of Jews.
  • The end of colonialism in the mid-20th century was the culmination of a long process during which westerners convinced themselves that the people they had colonized were not animals or subhumans but rather human beings like themselves.
  • The latest step forward in the history of human equality can be witnessed in our own time: gays and lesbians are now in the process of achieving what other outgroups have achieved before them.

So these are all consecutive steps during which the circle of people who are considered as “people like us” has been widened again and again. Sure, this is history painted with a very rough brush. I obviously don’t mean to say that the inclusion of new groups into the class of “equal human beings” has been complete or final after each step. There are many racists left after the Civil Rights movement; many intolerant religious fundamentalists after the acceptance of the right to freedom of religion etc. Also, there have been major steps backward: nazism came after a long period of Jewish emancipation; the end of slavery in the U.S. resulted in renewed racism etc. And neither do I mean to imply that prior to the abolition of slavery there wasn’t a single soul who believed blacks were equal human beings, or that there were no women considered as equal before the victories of feminism.

There’s no reason to believe that this inclusionary movement is about to stop. I can see at least three additional steps:

  • Our current treatment of criminals may come to be seen as unacceptable. There’s already a strong movement for the abolition of capital punishment, but I’m convinced that our whole system of criminal punishment is without justification. And I’m not just talking about overcrowding, prison rape, excessively long sentences etc. Read more here.
  • Migrants as well may become more accepted, to the point that an open borders policy will be generalized. Currently, we still condemn people to misery for no other reason than the fact that they are born in the wrong place, like older generations condemned people to slavery for no other reason than their skin color. The causes of this exclusion are an insufficient awareness of the benefits of immigration and lingering prejudices against outgroups.
  • And, finally, the inclusionary movement may one day lead to better treatment of animals: our current system of industrial meat production will then be considered barbaric.

Do I forget something?

Religion and Human Rights (29): When Freedom of Association and Anti-Discrimination Clash

In a recent court case in the US, a Christian student group objected to a university decision to withdraw recognition of the group. This withdrawal was justified by the university on the basis of the group’s discrimination of gays. Gays can only join the group when they “repent”. This policy by the group was deemed discriminatory by the university and in violation of its anti-discrimination policy. Withdrawal of recognition means that the group loses some subsidies and access to university resources, not that it has to cease to exist.

The group claimed that the university decision violated it’s freedom of association and freedom of religion. It also claimed that the university’s non-discrimination policy backfired and in fact created a new instance of discrimination, namely discrimination based on religion (because the group felt singled out; a Hispanic group excluding non-Hispanics did not suffer the same fate). The university contested this reasoning, claiming that the group was free to organize its activities elsewhere.

In my opinion, the Christian group is clearly bigoted and deserves condemnation for that, but groups should be free to decide who can and cannot become a member. And so there’s nothing wrong, in principle, with Christian groups banning gays. Forcing a group to accept members who violate the group’s fundamental rules and principles would empty freedom of association of any content because it would lead to the dissipation of the group’s identity. There is no group without identity, and hence no freedom of association without identity. And identity by definition means exclusion. Communist groups that are forced to accept capitalist members, or neo-Nazi groups that are forced to accept Jews, cease to exist as coherent groups. In case of religious groups, this would also violate the groups’ freedom of religion.

Also, the claim by gays that they are discriminated is weakened by the fact that they have numerous alternatives. It’s not like their non-membership of the Christian group produces a lot of harm to them, in terms of diminished choices, missed opportunities, lost resources etc.

An aside: I always fail to understand why people would want to join groups where they are manifestly unwelcome, except perhaps to cause a stir. Of course, this is no argument in favor or against any of the previous claims, except perhaps a pragmatic argument against the university’s position: if indeed gays will not join the anti-gay Christian group because they don’t have an incentive to associate with people who are hostile, then there’s no reason for the university to move against the group, since no discrimination will occur.

How is this different from what libertarians often claim about private discrimination? (Rand Paul for example recently claimed that the Civil Rights Act should not make “private segregation” illegal and should not force white restaurant owners to accept black customers). The difference is that segregation and Jim Crow were so widespread that blacks had considerably fewer options and suffered considerable disadvantage. The same isn’t true of gays on campus: there are enough associations that accept them. Hence, the discrimination that is imposed by the Christian group is real but not consequential enough to warrant a limitation of its freedom of association or religion.

Another argument in favor of the Christian group: non-discrimination policies have the laudable goal of promoting diversity and allowing every member of society to have the same options and choices. But how do you promote diversity if you don’t allow groups to have a coherent identity? And how do you promote options when you make it impossible for Christians to join a “truly” Christian group?

All this doesn’t mean that there will never be cases in which actions against groups are justified. In some instances, the demands of non-discrimination will outweigh the rights to freedom of association and religion. See here and here for more information on the need to balance different rights against each other.

Religion and Human Rights (24): Why and How Do We Separate State and Church? And What Are the Consequences for Religious Liberty?

A bit more about the proper role of religion in a modern democracy (see here for the original post I’m building on). I know it’s making things more simple than they actually are, but one can see the history of modern democracy as a continuing and progressive effort of the law and government policy to escape from religion. The religious wars of 16th and 17th centuries convinced the states of Europe that they had no choice but to put themselves above the factions. Only by loosening their ties with a favored religion and guaranteeing a free space for every religion and for equal liberty of worship, were they able to channel religious competition away from violence. As religion had become a dangerous and dividing power, it became clear that the state had to separate itself from the church, not only to keep the peace, but also to maintain itself.

The U.S. constitution later followed, inspired by the characteristic religious diversity of the U.S., itself the result of imperfect religious liberty in Europe. In the U.S., the separation of church and state was instituted in the First Amendment, more specifically the part of the Amendment called the “establishment clause” (“Congress shall make no law respecting an establishment of religion”). Religious liberty and the equal respect for all religions was also instituted in the First Amendment (more specifically in the part called the “free exercise clause“: “Congress shall make no law … prohibiting the free exercise [of religion]”). Obviously, separation and religious liberty interact, but I’ll focus first on separation, and then later I’ll discuss how separation influences liberty.

So the effort of western democratic states to separate themselves from religion is not based on a negative value judgment about religion as such, but simply on the need for peaceful coexistence, tolerance and mutual respect between religions, and this tolerance and respect should promote the rights to equal liberty of all religions. Separation of church and state is therefore a means to protect religious liberty. By removing its ties to a favored religion, a state is no longer tempted to impose that religion and persecute other religions. It will also stop favoring the official religion and imposing a competitive disadvantage on non-official religions.

And this need for peaceful coexistence, tolerance and respect will only become more important in an age in which global mobility and globalization encourage coexistence of and hence competition between different religions. If a multicultural state today aligns itself with one particular religion, even in a very loose way, it will squander its authority as a neutral arbiter between religions and as a peacemaker, and it will undo equal religious liberty because its association with one religion will necessarily favor this religion and give it more power and hence more freedom.

The question whether there should be separation is settled in all modern democracies, precisely because of the salience of these reasons. Sure, other reasons for and justifications of separation are cited as well, and can be just as convincing to some: laws based on one religion should be rejected because they show disrespect to people adhering to other religions, or these people will fail to see the legitimacy of these laws; in the words of Rawls, laws should be grounded in reasons that are accessible to “common human reason”, i.e. secular reason; religiously inspired laws often imply violations of fundamental rights etc.

Whatever the reasons given, most democratic citizens accept that there has to be some kind of separation. The only dispute that remains is the degree or type of separation. Should religion be completely banned from public and political discussions? Should religious reasons for legislation be completely and always unacceptable? Or can they be accommodated when other, secular reasons are also available (i.e. the Lemon test) and when the law in question doesn’t harm fundamental rights? Those and other questions remain essentially controversial. Below I offer an admittedly crude typology of forms of separation that democracies can and do apply. But before that I want to make another point that is important to keep in mind when discussing separation of church and state.

And that point is the remarkable similarity between legal and religious modes of thought. It is this similarity that has led to the original and historical entanglement between religion and politics and that has therefore initiated the attempts to dislodge politics from religion. Both religion and politics are about the realization of morality. They both encourage people to engage in some forms of action and to disengage from other forms of action, and the distinction between forms of action is a moral one in both law and religion. Both law and religion differentiate between right and wrong actions, even if they may not always use the same adjectives (the law doesn’t talk about sinful behavior for example). Both use ritual and judgment. Of course, some religions – notably the Abrahamic religions – tend more towards the legal mode of thought than others. Confucianism, by contrast, sees the law negatively, as a impediment to the internalization of norms of conduct, and therefore an obstruction to virtue.

Let’s now return to the modes of separation. In an effort that’s clearly bordering on the simplistic, I count 6 types of relationship between politics/law and religion, in descending order of separateness, from complete separation to complete lack of separation:

1. Secularism or strict separation

According to this view, there should be an impregnable wall between church and state (Jefferson’s “wall of separation”), and the government should be essentially secular. The archetype is of course French laïcité (often translated as “secularism”), the product of centuries of nefarious involvement by Catholics in French public life. It entails the rejection of religious involvement in government affairs (as well as absence of government involvement in religious affairs, by the way). That includes rejection of religion in public education, for example. Secularism implies a restrictive understanding of “private life” where religion is supposed to belong. In “public” (which includes for example public schools) religious people should act as citizens (“citoyens”) and also appear as such (hence the controversy over Muslim dress in France, see here and here). Secularism produces a reasonable level of religious freedom in society and private life but often relatively harsh restrictions on religious activity in government, law, politics and public life.

Another problem is that it seems impossible to avoid that religious values and religious moral sensibilities influence the law. And even if it were possible, it would be undesirable, in my view. Religion can be a valuable source in public discourse (and I say this as an agnostic). And neither should one underestimate the power of religious argument to appeal across religious divides, or even across the divide between religion and non-belief.

2. Neutrality

Neutrality, compared to secularism, also separates church and state but imposes a less severe form of exclusion of religion from government, legislation and policy. It forbids governments from favoring or advancing a particular religion over other religions, but it also forbids favoring secularism over religion. Notwithstanding the words of Jefferson quoted above, neutrality rather than secularism is typical of the current interpretation of the U.S. constitution. Religion is allowed a far greater role in U.S. public life than in France. Elected politicians in the U.S. regularly invoke religion, and religious reasons are often used as justifications for legislation (as long as the Lemon test is respected, see above).

Yet, the U.S. government cannot provide tax money in support of religion, for example, or impose school prayer in public schools, not even if students can excuse themselves (of course, prayer while at school is not forbidden as such; on the contrary, it is protected by the free exercise clause).

3. Accommodation

Accommodation, compared to neutrality, is still a system in which church and state are separated, but to an even lesser degree. Accommodation permits a government to acknowledge that religion is an important force in society, and only prohibits laws that either coerce religious activity or fail to treat different religions equally. A state can favor a religion without coercing it. Examples of government interference with religion that accommodation would allow are: the use of public (i.e. government) school facilities by religious groups, government aid (financial or otherwise) to religious schools, or school prayer if students aren’t forced to attend or if different religions get equal prayer time.

Some say the U.S. is slowly moving from neutrality to accommodation (partly because of the influence of Justice Scalia of the U.S. Supreme Court).

4. Establishment

An even lesser form of separation occurs when one church is the established church (e.g. the Church of England) but other religions are still tolerated and have a measure of freedom. Establishment can mean either a “state church” or a “state religion”. A “state church” is created by the state as in the cases of the Anglican Church or the Church of Sweden. An example of “state religion” is Catholicism in Argentina. In the case of the former, the state has absolute control over the state church, but in the case of the latter, in this example, the Vatican has control over the church.

The problem here is that non-established churches, although they may be tolerated and even enjoy a large measure of freedom, aren’t treated equally, perhaps not by the law but simply because of their lack of equal recruitment power. So they are disadvantaged and hence there’s no equal religious freedom. Even if non-official religions are not actively persecuted or discriminated against, they are worse off when one religion is established because they have less means to influence the public as the official state religion. They are not as free as the official religion.

5. Entanglement

This takes establishment a step further. The state’s favorite religion is no longer a “primus inter pares”. Other, non-official, non-established or non-favorite religions suffer not just a competitive disadvantage because of their non-official character, but also relatively severe restrictions of their religious liberty (of their recruitment efforts, their freedom of worship etc.).

6. Fusion/theocracy

Law and religion are the same, and separation is effectively and completely undone. The law is an instrument in the realization of religious law and morality. Rather than merely competitive disadvantage or restrictions on worship and recruiting, religions suffer outright prohibition and persecution. Of course, the same can occur when a state has adopted atheism as its official ideology, and actively persecutes religion as such, rather than some religions in particular. However, this has become the exception since the demise of communism, and only occurs in countries such as China, Cuba and North Korea.

Some claim that certain modern Islamic republics or countries that have implemented Shari’a law are examples of theocracy (see here). But is a pure theocracy possible? Not even the most totalitarian interpretations of a religion will unearth rules for everything. Hence, some laws are bound to be rooted in something else than religion. We see that theocracy, like the other extreme (secularism), finds it difficult to remain pure.

Separation and liberty

Now, if you agree that a separation between state and church is necessary for the protection of religious liberty, as I argued at the beginning of this post, then it may be useful to compare these 6 different types of separation (going from complete separation to complete absence of separation) with regard to the respective consequences for religious liberty of each type.

Secularism performs slightly less well with regard to religious liberty than neutrality or accommodation, but better than establishment, and obviously also better than entanglement and theocracy (the latter receiving a zero score). Difficult to say whether neutrality offers more religious liberty than accommodation or vice versa.

Some data

[T]wo-in-three people in the world today live in countries with high levels of restrictions on religion. The report gauges the level of restrictions due both to government actions and to acts of violence and intimidation by private individuals, organizations and social groups. … 64 nations, about one-third of the countries in the world, have high or very high restrictions on religion. The brunt of these restrictions are often felt most directly by religious minorities. … Among all world geographic regions, the Middle East and North Africa have the highest government and social restrictions on religion, while the Americas are the least restrictive region on both measures. … In 75 countries, or four-in-ten countries in the world, national or local governments limit efforts by religious groups or individuals to persuade others to join their faith. In 178 countries (90%), religious groups must register with the government for various purposes, and in 117 (59%) countries the registration requirements resulted in major problems for, or outright discrimination against, certain faiths. (source)

More on religious liberty here.

Religion and Human Rights (23): Muslim Headscarves – Between Religious Liberty and Gender Discrimination

The Muslim headscarf is back in the news. First some schools in Belgium decided to ban the headscarves, and then the French government started a discussion about the Burqa. (We should be careful when discussing the “Muslim headscarf” because the concept covers a wide variety of garments, going from the simple veil covering only the hair, over the Niqab leaving only the eyes uncovered, to the Burqa covering the whole body and providing only a grid to see through).

I already expressed my doubts about such bans, and particularly about singling out Muslim women. Why not also Hasidic women wearing wigs, Christians wearing crosses, Sikhs wearing Turbans etc.? It just reeks of islamophobia. It’s true that the Muslim veil, compared to dress codes of other religions or cultures, and especially the less revealing types of veil, can be interpreted as signs of gender discrimination, and even causes of gender discrimination (because wearing a full-body veil inhibits the agency of women and makes them more vulnerable to patriarchal power). However, I fail to see how a simple ban of the veil will result in less discrimination. That would be just “kurieren am Symptomen”. Other, more effective measures are required against gender discrimination, and not only in Muslim society.

On the other hand, the Belgian schools justified their decision by pointing to the fact that many Muslim girls who don’t cover their heads are threatened and pressured by their more pious fellow girl students, as well as by their male Muslim fellow students. So there is a clear dilemma here: banning the scarf means restricting the free choice and the religious liberty of those girls who voluntarily choose to wear it; allowing the scarf means restricting the free choice of those girls not wanting to wear it and allowing the existence of signs and means of gender discrimination. The headscarf ban can be interpreted as either a violation of rights (religious liberty, freedom of choice) or a protection of rights (gender equality, freedom of choice).

There are also those who claim, perhaps not without reason, that young Muslim girls are really not ready to make an informed choice since they may have been indoctrinated from early childhood on. Creating an environment where they can meet girls who don’t cover their head will allow them to make an informed choice. And if such an environment means banning the veil in schools because peer pressure would result in the generalization of the veil, then so be it. The girls who want to wear the veil can still do it outside of school. (More on informed consent here).

The problem here is that it is assumed that girls can’t make an informed choice, and that those who wear the veil are ignorant and indoctrinated and need to be saved and re-educated. Such a view of girls as passive victims of their oppressive religion can itself be an expression of gender discrimination. And even if it’s not, it signals that women are inferior and hence helps to solidify what it intends to destroy.

Religion and Human Rights (22): The Proper Role of Religion in a Democracy

For me, as an agnostic, the question of the place of religion in a democracy is an important one, although I believe the question would be just as important if I held a religious belief or if I were an atheist. There’s no doubt in my mind that the full protection of human rights and civil liberties for all citizens can be jeopardized by misconceptions about the proper role of religion. Take, for example, the rights of homosexuals, the rights of non-believers or adherents of other religions, women’s rights etc.

At the most basic level, this is a problem of tolerance. We should not impose our beliefs, moral values and practices on others if these others don’t inflict harm, even if we think other people act immorally from the point of view of our religion. And neither should we discriminate people when they act or speak or think in ways that are incompatible with our own beliefs. These two prescriptions are based on the need for respect. We would show disrespect for other people if we were to force them to act according to our own beliefs. And the need for respect is, in turn, based, on the importance of freedom. Other people value their freedom to act according to their own beliefs. Let’s take two examples:

  • A Muslim father may, as long as his daughter is underage, impose certain religiously inspired rules of behavior on this daughter, and he can even hope that the girl internalizes these rules and respects them for the rest of her life. But when the girl reaches adulthood and chooses to live according to her own rules, she will be protected to do so by her human rights and civil liberties, even against the wishes of her father. The proper role of the religious beliefs of the father has reached its limit. The father should tolerate and respect (which doesn’t mean agree with) the choices of his adult daughter, and the laws of the democracy in which they live will enforce this tolerance and the girl’s freedom of choice if necessary.
  • A Catholic human resources manager in the recruitment department of the army of a democratic country, refuses to hire a perfectly qualified candidate because of her homosexuality. Again, this would be a sign of disrespect on the part of the HR manager and the law should intervene.

But the problem goes beyond the level of relations between citizens. The question about the proper place and role of religion in a democracy isn’t limited to the problem of how we treat each other in our daily lives, how we treat our wives and children, our gay or “infidel” neighbors or employees etc. In a democracy, the people translate their beliefs in legislation and government policy. Hence we should ask to what extent people can use their religious beliefs as the basis or reason for legislation.

Here I take a nuanced position between the two extremes: between a complete lack of restrictions on the role of religion in democratic legislation, and a complete exclusion of religion from democratic legislation. So the question becomes one of degree: to what extent can religion be the basis of law? When is it allowed, and when is it no longer allowed for religious reasons to be the reasons for government coercion?

I think that the problem arises when the legal coercion resulting from religious reasons violates the human rights and civil liberties of individuals, and that any religiously inspired legislation that stops short of such violations is acceptable. Some would say that even legal coercion based on religious reasons that doesn’t violate the rights of individuals is reprehensible, but I don’t agree. An argument in favor of this more restrictive approach could go as follows. Legislation based on religion automatically implies disrespect for people of other religions and for non-believers, since the religious reasons used as a basis for this legislation are likely to be exclusive to a particular religion. Only religious reasons which are sufficiently vague so as not to be exclusive to one religion can then be acceptable religious reasons for legislation. An example: charity can be an acceptable religious reason for legislation, because it’s not a reason that is exclusive to one religion, perhaps not even to religion as such. Laws regarding the sabbath, on the contrary, would not be an acceptable reason for legislation, even if it produces legislation that doesn’t violate anyone’s rights. Or the argument could be that only a law that is supported at the same time by religious reasons and non-religious reasons is acceptable, and that laws that are supported only by religious reasons are unacceptable, even if they don’t violate anyone’s rights.

I think that goes too far. Disrespect should be avoided, but I don’t see why the avoidance of disrespect should automatically override legitimate religious concerns. It’s not even clear to me that there’s necessarily disrespect involved in the use of exclusive religious reasons as a basis for legislation. It’s certainly not the case that such legislation necessarily means forcing one religion on people of other faiths or of no faith. If that would be the case, we would have legislation that violates the rights of individuals (namely the freedom of religion). And that would violate my own rule stated above.

However, legislation that is based on exclusive religious reasons does involve coercing people on the basis of a doctrine that they don’t accept. But, again, if this coercion doesn’t result in rights violations I can’t see what would be wrong with it. Laws by definition force people to do things they don’t accept or to abstain from doing things that are essential to them. I don’t see why there should be laws in any other case.

To summarize, religious people can advocate and – if they are in the majority – implement laws on the basis of their own, exclusive religious reasons, as long as the human rights and civil liberties of all are respected. A religiously inspired law banning same-sex marriage would therefore not be acceptable; a law instituting a religious holiday on the contrary would be acceptable. In the words of Habermas:

The liberal state must not transform the requisite institutional separation of religion and politics into an undue mental and psychological burden for those of its citizens who follow a faith. (source)

On the other hand, religious people should also refrain from imposing a burden on the rights of their fellow citizens.

Some would say that even my rule is too restrictive on religion. For religious people, religion is not only a personal and private conviction but also the law of humanity. Forcing them to forsake the legal implementation of their religious views means taking away their identity, forcing them to be what they don’t want to be. Their religious beliefs are political beliefs and always trump opposing political beliefs. It’s intolerable for them to be forced not to implement their beliefs by way of legislation, or to submit to political decisions that are not based on their religious reasons. It’s indeed a good question: can religious people really accept democracy, given that God cannot be in the minority and God’s commands are absolute and trump opposing majority decisions? Democracy seems to be unacceptable from a religious point of view. However, catering to this view would mean forfeiting democracy, majority rule, the free choice of others, respect for others, freedom of religion, and human rights, and replacing all this by absolute theocracy. I don’t think that’s a price many are willing to pay, and not even many religious people as I argued here.

Religion and Human Rights (21): The Attractiveness of Religious Liberty to Those Who Hate it

Religious extremism

This post examines the relationship between religious liberty and religious extremism. The expression, “religious extremism”, does not only or even mainly refer to terrorism, jihad or sectarianism. Those are only the more flagrant instances of religiously inspired human rights violations.  All religiously inspired human rights violations are covered here by the concept of religious extremism.

Two other remarks may help to avoid misunderstandings. First, this post by no means focuses exclusively on Islam. Although most news stories about religious extremism nowadays tend to highlight rights abuses in Islamic countries or Islamic terrorism, history shows that none of this is the monopoly of any religion.

Second, the existence of religiously inspired human rights violations does not prove that religion as such is necessarily incompatible with human rights. This post does not make that claim. We should be well aware that rights abuses can be inspired by many different ideologies, religious and secular. Moreover, there is ample evidence that the historic evolution of human rights was and still is underpinned by religious motivation. The incompatibility of religion and human rights is the exception. It is limited to some interpretations of some practices of religions. Religion is above all a matter of conviction and belief, and only then a matter of practice. And conviction and belief can never harm human rights, which is why they benefit from absolute protection by human rights.

Religious liberty

Regarding the concept of religious liberty: what is it and why is it so important? Religious liberty is a human right among other human rights. It contains the freedom of belief, the freedom to practice and promote a freely chosen belief, both in private and in public. It is also the freedom to change belief and the freedom to have no belief at all (the freedom to be non-religious, or the freedom from religion).

Here’s the way it’s formulated in the Universal Declaration, article 18:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Religious liberty is in general words the right to be protected against religious coercion and persecution. Of course, one can and does discuss this definition. There is a lot of literature about the precise meaning of religious liberty. I just assume that we can use the definition given here as a working definition for the purpose of this post.

By protecting people against religious coercion, the right to religious liberty promotes a diverse and plural society, even beyond the field of religion. If there can be diversity and debate in something as important as religion, why not in other fields? So religious liberty functions as an example and a benchmark. It promotes diversity and debate in general, and hence it promotes other human rights – such as freedom of speech – which can occupy the free public space created by religious freedom. Religious liberty, in the same manner, promotes tolerance. If people can be tolerant – or, better, can be forced to be tolerant – in religious matters, it will be easier to enforce tolerance in other fields.

As a consequence, religious liberty is of importance to everyone, including non-religious persons, and not only because it protects them against the imposition of a religion. It also allows them, and everyone else, to live in a world of diversity, tolerance and human rights. Religious liberty is therefore an integral part of the system of human rights and of crucial importance to a plural world. It is a prerequisite for the whole system of human rights, but also vice versa. Freedoms of speech, of assembly and of association are religious freedoms as well and are prerequisites for religious liberty strictu sensu.

The attitude of religious extremists towards religious liberty

The relationship between religious liberty and religious extremism is ambivalent. On the one hand, we see that religious extremists, especially those living in democracies, use or better abuse religious liberty to justify certain religious practices and norms which violate human rights. On the other hand, and more generally, religious extremists do not like religious liberty. They are universalists. They want to impose their norms on others and do not want others to enjoy religious liberty. Unbelievers do not deserve freedom because they oppose the laws of God, the only God and the God of all human beings. Man does not have the freedom to violate the laws of God.

Religious universalists naturally try to take over the machinery of the state, because then they can use the law, the police, the judiciary, state education, etc, to bring back the “lost sheep”, against their will if necessary.

[R]eligiously wrong – a motive of legislation which can never be too earnestly protested against.  Deorum injuriae Diis curae.  Injustices to the gods are the concern of the gods.  It remains to be proved that society or any of its officers holds a commission from on high to avenge any supposed offense to Omnipotence which is not also a wrong to our fellow creatures.

The notion that it is one man’s duty that another should be religious was the foundation of all the religious persecutions ever perpetrated, and, if admitted, would fully justify them.  […] a determination not to tolerate others in doing what is permitted by their religion, because it is not permitted by the persecutor’s religion.  It is a belief that God not only abominates the act of the misbeliever, but will not hold us guiltless if we leave him unmolested. John Stuart Mill in On Liberty

Universalism is of course inherent in most major religions (perhaps not in Judaism). However, religious extremists go beyond the normal religious tendency of promoting universality by persuasion and voluntary conversion. They try to achieve universality by taking away the religious liberty and other human rights of their opponents. They use force and violence, sometimes even terror and war. Even the members of their own groups often suffer rights abuse because of the objective of universality (for example, punishment for apostasy).

(By the way, universalism is not an exclusively religious phenomenon. We can also find it in many non-religious worldviews such as capitalism and communism. We can observe that these other worldviews also tend to violate human rights if they take their universalism too seriously. One could even claim that the ideology of human rights is a kind of universalism. Fortunately, this ideology cannot permit itself to violate human rights for the sake of its universalism, because that would be self-destructive).

First-level protection against rights violations by religious extremists

I’ve mentioned above that there is a two-way causation, unity and interdependence in the system of human rights (by the way, this is a recurrent feature in the system, even in parts of it unconnected to religious liberty). This unity can help to solve the problem of the violation of religious liberty by religious extremists and the violation of other human rights justified by religious liberty. Religious extremists can violate human rights in two ways:

  • either internally in their own groups, again in two ways:
    • for example, certain religious practices such as gender discrimination, forced circumcision, etc). These practices are often justified as falling under the protection of religious liberty;
    • or by prohibiting exit-attempts (apostasy) – which often occur as a consequence of the previous type of violation – and taking away the freedom of religion in the sense of the freedom to change one’s religion;
  • or externally, in their practices directed at outsiders (for example, forced conversion, terrorism, holy war, etc). These practices can violate only the freedom of religion of outsiders, or also their other human rights.

Now, all these practices cannot and should not benefit from the protection offered by religious liberty. No single human right, including the freedom of religion, can justify human rights violations. Human rights have to be balanced against each other and must be limited when they produce human rights violations. Limiting rights for the sake of other rights or the rights of others is a normal practice in the system of human rights. This system is not a harmonious whole. Rights can be contradictory. Take the right of privacy of a public figure trumping the right of freedom of expression of a journalist. Or the right to life of people in a crowd trumping the freedom of speech of one of them wanting to yell “FIRE!” without good reason.

In the case of religious liberty: one could argue that the right to equal treatment and non-discrimination of women, the right to life of apostates and the religious freedom of adherents of other religions trump the right to some religious practices which would normally enjoy protection under the religious liberty articles.

Second-level protection against rights violations by religious extremists

This first-level protection implies, of course, the enforcement, often by force, of human rights against the will of religious extremists. A better protection would be based not on external force but on internal motivation. The central thesis of this post is the following: notwithstanding the hostility shown by extremists with regard to religious liberty and other human rights, they can be persuaded that they have tactical reasons to accept religious liberty and human rights in general, even if their religious views tell them otherwise. This thesis is based on the force of self-interest as a universal human motivation. It therefore excludes the ultra-extremists who blow themselves up for their religion. They have forsaken self-interest and cannot be convinced to take a course of action based on self-interest. However, they are a minority even among extremists (some of them probably have not forsaken self-interest but are forced to do what they do). So let us concentrate on the other extremists.

There is reason to believe that societies are becoming more and more diverse, culturally and religiously. As a consequence of migration and globalization, states are becoming collections of religious sub-communities. This increased diversity of societies means that religious sub-communities need the protection of religious liberty and other human rights. Even the extremists among them, those who want to coerce, can one day, when the demography has changed, be coerced by the opposing extremists. Therefore, they can be tempted to adopt religious liberty and human rights for their own long-term protection even if these contradict their religious beliefs and practices and their universalist claims. At first sight, a universalist religious extremist may not consider religious liberty and the freedom and equality of all religions as being in his self-interest, or even in the self-interest of the adherents of the other religions. On the contrary, it is in his interest that a maximum number of people convert to his religion. From the point of view of salvation, this is also in the unconscious interest of the people to be converted. He may claim that the latter not only should lose their religious liberty, but also their other rights, and perhaps even their life.

But rejecting the religious liberty and other rights of others means destroying the state mechanisms which he may one day need to defend himself against other extremists who immigrate or become stronger through other means. After all, globalization means that everyone can become a minority everywhere.

It makes sense for a strong majority with universalist claims to reject the rights of minorities, but only in the short-term. In the long term, it’s much more rational to keep the human rights protection mechanisms intact, if not out of conviction, then tactically in order not to cut off the branch one may need to sit on in the future.

Even the protection of human rights internally in a group makes tactical sense. Here it’s not a question of counting on reciprocal respect, if necessary enforced by your own reluctant example or by enforcement mechanisms kept intact by your own groups’ respect for them. Respect for the rights of the members of your own group also helps to maintain a rights enforcing state which can help protect you against other groups.

Of course, this reasoning requires rationality and objective analysis of self-interest on the part of religious extremists, which is perhaps utopian.

Inclusive and exclusive norms

We can put all this in another way by making the distinction between inclusive and exclusive norms. Inclusive norms are norms such as tolerance, freedom of speech, etc. They try to protect plurality and hold different people with different convictions together.

Exclusive norms try to win a competitive struggle with other norms and try to exclude difference. For example, homosexuality is a sin. Religious norms are often exclusive norms, but not always (think of charity for instance) and many exclusive norms are not religious at all (racism for example).

Someone who is attached to an exclusive norm will try to change people, to persuade, convert, perhaps even impose or force. (To stay with my example on homosexuality: there are “clubs”, if you can call them that, in the US where people help homosexuals to “convert” to heterosexuality). So, exclusive norms may lead to rights violations or violations of inclusive norms.  In that case, inclusive norms should, in my view, take precedence. However, for religious people, the commands of God clearly trump human rights. It’s easier to protect inclusive norms against exclusive norms if religious communities have internalized inclusive norms and only promote, rather than impose, their exclusive norms. In doing so they guarantee that the inclusive norms are alive and well when the exclusive norms of other sub-communities start to manifest themselves. Even extremists may be convinced that this is a rational approach.

Religion and Human Rights (15): Same-Sex Marriage and Religious Liberty

From someone on the political “right”:

Changes in the law that bring a little happiness, resolve some painful practical injustices (from hospital visitation rights to the ability to benefit from the spousal Death Tax exemption) and help take the previously marginalized deeper into “regular” society should, probably, be seen as a Good Thing.

The role of the Right should be to shape the way that this change takes place, by building in, for example, free speech and “conscientious objection” protections to those who do not go along. If that’s the aim, a position of outright opposition is not the best place to begin. Andrew Stuttaford (source)

This view on same-sex marriage is a welcome change. Unfortunately, many in the religious right still adopt prejudiced and bigoted opinions regarding gays (which doesn’t mean that all on the right are prejudiced or that prejudice is the monopoly of the right). Of course, everyone is entitled to his or her opinions, bigoted or not. That’s a fundamental freedom. And when these opinions are grounded in religious morality, the issue is not only free speech but also religous liberty. The problem arises when people want to impose their opinions and morality on others by way of the law.

If a Christian believes that gay sex, gay marriage etc. are immoral, then he or she has strong reasons not to engage in such activities. And also to communicate these reasons to others and to try and persuade them to be “moral”. What this person should not be allowed to do is to use the power of the state and the law to force others to be “moral”. The role of the state and the law is not to impose one particular view of morality or religion, but to guarantee a maximum degree of freedom and equal treatment to all citizens.

Religiously wrong, a motive of legislation which can never be too earnestly protested against. Deorum injuriae Diis curae. Injustices to the gods are the concern of the gods. It remains to be proved that society or any of its officers holds a commission from on high to avenge any supposed offense to Omnipotence which is not also a wrong to our fellow creatures. The notion that it is one man’s duty that another should be religious was the foundation of all the religious persecutions ever perpetrated, and, if admitted, would fully justify them … A determination not to tolerate others in doing what is permitted by their religion, because it is not permitted by the persecutor’s religion. It is a belief that God not only abominates the act of the misbeliever, but will not hold us guiltless if we leave him unmolested. John Stuart Mill.

So we should outlaw only an offense to Omnipotence which is also a wrong to our fellow creatures: there have of course been attempts to describe homosexuality among consenting adults as something that can produce harm to others (e.g. children adopted by gay couples etc.), but in my view no successful attempts.

To come back to the first quote: the “conscientious objection protections” that are mentioned are indeed useful. Proponent of same-sex marriage such as I should take into account the genuine fears of religious people. When we abolish the laws that refuse same-sex couples the right to marry – and hence abolish one instance of the law being used to impose one person’s morality on another – we should make sure that we respect people’s freedom of religion. For example, we should not make it illegal for a Cathholic priest to refure to marry a same-sex couple, or for a Christian adoption agency to refuse to place children with same-sex couples etc. If we were to make such refusals illegal, we would be needlessly limiting the freedom of religion of those people. I have a detailed post here on the need to balance the rights of gays with the rights of religious people.

Limiting Free Speech (25): Does Freedom of Religion Require Limits on Freedom of Speech?

The UN Human Rights Council recently passed a Resolution on Religious Defamation. The main concern of the drafters of this resolution is islamophobia, defamation of Muslims, negative stereotyping of Muslims and Islam, and intolerance and discrimination against Muslims. The main targets are, obviously, western societies where, it is believed, “terrorism hysteria” has caused widespread anti-Muslim feelings.

Of course, no one should accept discrimination and intolerance, and even less islamophobic acts of violence. If there is discrimination and violence, then these human rights violations should be countered, wherever they occur, in the West and elsewhere. However, trying to outlaw defamation and stereotyping is a lot more controversial. While such acts are certainly not helpful in any circumstances, it’s not beyond doubt that they are harmful in themselves or that they are the single most important cause of more harmful acts, such as discrimination and violence.

For the proponents of the resolution, this is beyond doubt. Defamation, stereotyping, derogatory speech, blasphemy etc. are all believed to be harmful enough to justify limiting freedom of speech. The resolution clearly proposes such limits. It talks about

the need, in all societies, to show sensitivity and responsibility in treating issues of special significance for the adherents of any particular faith.

The “provocative or regrettable incidents” it mentions are clearly but not explicitly instances of speech rather than the very rare cases of actual violence and discrimination against western Muslims, namely the Danish Muhammad cartoons, the remarks by Pope Benedict, the Rushdie affair, the attempts of some to equate Islam with terrorism etc. The resolution urges

States to take actions to prohibit the dissemination of… material aimed at any religion or its followers that constitute incitement to racial and religious hatred, hostility or violence,

and says that

respect of religions and their protection from contempt is an essential element conducive for the exercise by all of the right to freedom of thought, conscience and religion.

So in these statements, there are two distinct attempts to justify limits on speech that defames and stereotypes Islam:

  1. The first justification is that such speech is hate speech and speech that incites violence and discrimination.
  2. The second is that it restricts the freedom of religion of its targets.

I dealt with the first one before, in this post (where I argued for a very limited possibility to restrict hate speech), so here I’ll focus on the second one. Of course, the second one can collapse into the first one, if the restriction of freedom of religion is supposed to follow from acts of violence that are caused by speech. Acts of violence can indeed restrict freedom of religion, but this argument isn’t valid in the case of Muslims in the West, who have only very rarely been subjected to islamophobic violence and who therefore cannot claim that hate speech and the resulting violence restrict their freedom of religion. If anything, Muslims have more religious freedom in the West than in many Muslim countries.

So something more is meant by the second justification of limits on freedom of speech. It’s not, however, clear what exactly is meant. I haven’t been able to find examples, given by proponents of the resolution, of ways in which speech can restrict an individual’s freedom of religion. These proponents don’t get any further than the general claim that freedom of religion requires laws against defamation, and most likely also blasphemy, and corresponding limitations of free speech.

The question here, of course, is whether freedom of speech can in any way restrict the freedom of religion. If that is the case, then a trade-off has to be made as in all cases in which different human rights come into conflict. But I don’t think that is the case. On the contrary. Freedom of speech is an essential safeguard for freedom of religion.

Now, let’s suppose that there exists, somewhere, a good argument linking defamatory speech and restrictions of freedom of religion, but that I’m just not aware of it (yet). The problem is that, even if defamatory speech can in some obscure way limit someone’s freedom of religion, it doesn’t necessarily follow that in such a case freedom of religion should automatically take precedence over freedom of speech. When two rights come into conflict, it’s often very difficult to decide which one has priority.

Another problem with this undiscovered argument is the vagueness of “defamatory”. Defamation, according to Wikipedia, means the following:

In law, defamation (also called calumny, libel (for written publications), slander (for spoken word), and vilification) is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image. It is usually, but not always, a requirement that this claim be false and that the publication is communicated to someone other than the person defamed (the claimant).

Defamation – also libel or slander – is the offense of bringing a person into undeserved disrepute by making false statements. (I already discussed the relationship between free speech and defamation or libel here).

This definition, however, doesn’t help a lot because it doesn’t make clear what is or is not supposed to be considered as defamatory. What is defamatory differs from one person to another. And this vagueness of the concept may have far-reaching consequences. Suppose we agree that there are good reasons to restrict defamatory speech for the sake of freedom of religion. Is it not likely that those who have to enforce these legal restrictions will be tempted to use them to stifle legitimate criticism of religion instead of real defamation? Where is the border between defamation and criticism? Or between defamation and alternative, non-official interpretations of a religion? I guess that there will be a rapid transition from concerns about religious freedom to their exact opposite, namely policies to punish heresy, blasphemy and apostasy, and to criminalize dissent in general. It’s not defamation of religion that harms but the measures taken to defend religions from defamation – or, better, the measures that are claimed to be taken in defense or religion, but more often than not are taken in defense of power.

Religion and Human Rights (13): Same-Sex Marriage and Religious Liberty, How Much Can We Discriminate?

Same-sex marriage to me is a no-brainer. Although international human rights law doesn’t explicitly grant gays and lesbians the right to marry, the notion of equal rights can be used to counter discrimination of homosexuals, including discrimination of marriage rights. Article 2 of the Universal Declaration states that everyone is entitled to all the rights set forth in it, without distinction of any kind. And the right to marry is recognized in article 16.

Furthermore, article 7 outlaws discrimination. On the basis of articles 2 and 7, many countries have enacted anti-discrimination legislation which outlaws racial discrimination, gender discrimination, sexual orientation discrimination and sometimes other types of discrimination as well. Such legislation punishes citizens who discriminate other citizens, for example restaurant owners refusing access to homosexuals, Jews, African-Americans etc.

However, the Universal Declaration and many constitutions also grant the right to religious liberty. Article 18 states that everyone has the right to freedom of thought, conscience and religion. Now, I think it’s fair to admit that freedom of religion and anti-discrimination laws can sometimes clash with each other (although the importance of such conflicts is often artificially inflated by opponents of same-sex marriage, see here for example). Anti-discrimination laws can force people to do things that violate their religious beliefs, if these beliefs require them to discriminate. Such laws can, if we stick to the previous example, force restaurant owners, who believe that homosexuals and Jews are sinners, to open their doors to homosexuals and Jews. When people are forced to act against their religious beliefs – no matter how bigoted these beliefs – it is fair to say that their religious freedom and freedom of conscience and belief are violated. These freedoms are not contingent on the quality of beliefs. All beliefs and religions, even the most bigoted ones, deserve protection (as long as they don’t cause harm to others of course).

It is not uncommon to see contradictions in the system of human rights. This system is not a harmonious whole. I’ve covered this problem extensively here and here. Rights are not always compatible, in which case one has to decide which of the conflicting rights has priority (or “trumps the other”). The normal (but not the only) rule is the extent of harm caused by a limitation of one right or the other.

In the case of discrimination of people on the basis of their sexual orientation, anti-discrimination laws based on article 2 of the Universal Declaration (or relevant articles of a national constitution) come into conflict with religious liberty (based also on the Universal Declaration or constitutional provisions). Both rights are very important (and I say this as a non-religious person), so the decision in favor of one or the other will never be an easy one.

Take again the example of the restaurant owner. At first sight, the answer seems obvious: let the restaurant owner refuse entry. The harm done by forcing him to grant access is clearly greater than the harm of forcing homosexuals to find another place to eat. On top of that, the restaurant owner can rightfully claim that not only his religious liberty and freedom of belief would suffer from forced access, but also his right to property (and to use it as he pleases). However, on closer inspection, things aren’t so clear. The harm done to homosexuals is likely to be much greater than just a dinner inconvenience. If a restaurant owner is allowed to discriminate, then this sends a signal to others that discrimination is OK. Choosing the side of the restaurant owner is in fact choosing the side of discrimination and legitimizes discrimination, causing harm that is potentially very widespread. After all, in a great majority of cases of people refusing to do something because of their discriminatory beliefs, there is someone else available to do what they refuse to do. So allowing people to refuse in one case because there is someone else who will not refuse (another restaurant), opens the door to a great number of refusals, and hence to widespread discrimination.

Furthermore, many cases are much more complicated than the restaurant case. How about a doctor refusing fertility treatment to a lesbian couple (married or not)? Or a Muslim doctor refusing to treat a female patient? Or a Christian university refusing to grant a gay person a place in its dormitory? Or a Catholic adoption agency refusing to place children with same-sex couples (married or not)? It’s clear that in many of these cases, the rights of those discriminated should take precedence over the freedom of belief of those discriminating because the harm done by discrimination is greater than the harm done by outlawing discrimination.

We should also distinguish between refusal by private persons and refusal by public officials. It seems much less acceptable for the latter to refuse to grant their services to certain types of people. The government should never discriminate people on the basis of religious belief. Governments should be religiously neutral as much as possible, and should respect the separation of state and church.

Anyway, sometimes anti-discrimination laws will trump other rights such as the freedom of religion, and sometimes not. So equal rights for gays, including the equal right to marry, will not “kill” religious freedom as some on the right believe. If we can convince opponents of anti-discrimination in general and same-sex marriage in particular that the concerns of religious beliefs are taken seriously and are not systematically deemed of lesser importance compared to equality, then they may give up some of their opposition. After all, even in those cases in which the concerns of equality are deemed to outweigh the concern of religion, the harm done to religion is not of catastrophic proportions. No one will ever force a priest to marry anyone, or a church to modify its doctrine, or someone wishing to express a preference for “traditional marriage” to shut up. In all these discussions on same-sex marriages, it’s important to keep things in perspective. Hysteric reactions on either side aren’t helpful at all. Compared to other rights violations, this problem is a minor one.

Much of this concerns discrimination in general, not just discrimination in the application of the right to marry. It just happens to be the case that the ongoing efforts to reduce marriage discrimination seem to cultivate the fears of many religious people that anti-discrimination laws will impose even further restrictions on religious liberty when same-sex marriage is recognized by law. These fears, however, are not substantiated by the evidence of countries or states which have, sometimes long ago, recognized same-sex marriage. Another reason to put things in perspective, something which is clearly captured by this quote:

While marriage and religious belief are one creature in the minds of many people, they are separate things in the law. Catholicism and Orthodox Judaism, for example, refuse to recognize secular divorce. But few argue that we should refuse to let people divorce for this reason. One can be divorced under the law but married in the eyes of the church. The statuses can be separated without a diminution of religious liberty. And nobody thinks that this de-linking of the two constitutes official oppression or the obliteration of religious freedom. Similarly, in principle, it should be possible to have a regime in which same-sex couples are married under the law but not married in the eyes of a given religion – all without extinguishing religious faith. Dale Carpenter (source)

Limiting Free Speech (23): Blasphemy Laws

Blasphemy laws are obviously limitations on the freedom of speech, and in my view, unjustifiable limitations. Blasphemy is a disrespectful or insulting statement about a God or a religion. It’s a kind of defamation or libel of God. (I disregard in the current context the act of claiming the attributes or prerogatives of deity, also a kind of blasphemy).

I never quite understood how people can think that an almighty God can be insulted by statements made by unbelievers, and needs to be protected against such statements by blasphemy laws. And I don’t say this because I’m agnostic. I would say the same thing if I was a believer. I think my God would be able to take it, and I can’t understand the concept of a God who can’t take it.

More intelligent proponents of laws prohibiting blasphemy see my point and redirect these laws towards a defense, not of God himself, but of his teachings and his flock. Blasphemy is then a verbal attack on a particular faith or on the followers of this faith. But this is also a sign of weakness and self-doubt. It implies that blasphemous statements can hurt a community of believers, individual believers or elements of a faith. It implies, in other words, that this faith isn’t very strong, either as a system of belief, or as someone’s conviction. So maybe the system of belief is so weak that it needs to be defended by law against criticism, because otherwise it would fall apart. Or maybe the believers need protection so as not to loose their belief. But perhaps the hurt in question doesn’t refer to a teaching or a belief, but is merely a matter of being insulted. And then I refer to a previous post in this series, more generally on the supposed right not to be offended (see also here).

Fortunately, blasphemy laws are more or less defunct in most western democracies. They are common only in theocracies. However, there are calls for their reinstatement in some democracies, especially those with large Muslim communities. It is an unfortunate fact that most of the modern day terrorist attacks are carried out by radical Muslims, and this fact convinces some people that there is a kind of necessary link between the religion of Islam and terrorism. As a result, public discourse in some circles is rife with incendiary remarks about Islam (Wilders is a particularly loud example). No matter how simplistic and unfair these remarks are, they are taken very seriously by many Muslims who seek to stop them by demanding the reinstatement and application of blasphemy laws. Some democratic governments seem to take these demands on board, and consider blasphemy laws to be a good way to accommodate religious and cultural sensitivities, to avoid social divisions, violent protest and radicalization of young Muslims.

However, I think they are wrong. Rather than silencing the debate about Islam and terrorism, governments should allow moderates within and outside of Islam the chance to win it. Blasphemy laws will only encourage islamophobes in their belief that Islam is intolerant and weak, seeking special protection because it is flawed to such an extent that it cannot survive criticism. And they get further encouragement from the often harsh and brutal punishments for blasphemy demanded by some vocal Muslim minorities.

In many countries, blasphemy laws are used as a means of political oppression. When religious leaders are also political leaders, or closely affiliated with political leaders, these laws can stifle dissent and opposition because they recast criticism of politics as criticism of religion. Even a secular leader can use blasphemy laws to decide religious animosity between groups in a way that suits his own purposes.

Blasphemy laws are a symptom of an insufficient separation between state and church. Religious liberty requires equal treatment of all religions, and equal political and legal power for all religions. Otherwise the choice for a religion wouldn’t be a free one. Blasphemy laws typically do not apply to all religions equally.

Limiting Free Speech (14): Religious Education in Public Schools

There can be nothing wrong with educating children about religion. And I say this as an agnostic. But religious education must include information about all the world’s main religions, and about atheism as well. And it also shouldn’t avoid mentioning some of the problems caused by religion. Children benefit from seeing all sides of the coin.

Even public schools, i.e. schools instituted, organized and funded by the government, should provide this kind of religious education. Banning religion from public schools is wrong, but not because it would be a limitation on the freedom of speech of religions, as some religious activists claim. It’s not because you’re not allowed to speak in a certain place that you’re not allowed to speak (freedom of speech does not include the right to say anything anywhere; if it would, then newspapers would be forced to print everything everyone asks them to print). Such a ban is wrong for another reason: it would be stupid and a disservice to children.

It would be politically and legally wrong to have public schools teach only one religion, or emphasize one religion. The separation of church and state does not allow agencies of the state – such as public schools – to be hijacked by a particular religion, even if it is the religion of the majority of citizens (I would even say, especially when it is).

If this were allowed, then a religion could then use its privileged position to compete unfairly with other religions, and the result would be the abolition of religious freedom. The choice of religion would then no longer be a free one. Children would be led to one religion. Rather than complete information on all religious options, necessary to make an educated choice between religions, children would have a one-sided view on religion.

For the benefit of their students, private schools are of course also advised to teach all religions. But since many of these private schools are religious schools, it is only fair to allow them to focus on their own religion. It would indeed be an unjustified encroachment on religious freedom if religions and churches were not allowed to organize their own system of education according to their own rules (even if it includes teaching that Darwin was wrong and that Dinosaurs and men walked the surface of the earth together – but evidently they wouldn’t do their pupils any favors).

As long as parents have a choice to send their children to such a religious school or to another, public school, then there is no problem. But this must be a real choice of course. If the public schools are of inferior quality, or difficult to reach, then there isn’t really a choice.

School prayer is quite another matter. Praying is not learning, and the demand of inclusiveness mentioned above does not appear to work in the case of prayer. Starting lessons with different prayers of different religions seems awkward. Hence, school prayer in public schools looks like the kind of hijack that is contrary to the separation of state and church.

Limiting Free Speech (9): Religious Monuments and Symbols in Public Spaces, and “Killing Christmas”

The U.S. is obviously a very Christian country, but also one which values religious liberty and pluralism. Government authorities in the U.S., and especially local governments, sometimes allow displays of the Ten Commandments, nativity scenes or other mainly Christian religious monuments or symbols to be placed in public parks or buildings.

However, when doing so, they often invite demands to allow a different religion’s display as well. And many of them refuse, either because the people who decide are themselves Christians, or believe that Christianity is inextricably linked to the national identity of the U.S.

The problem is that such a refusal violates the First Amendment, and does so in two ways:

  • It harms the freedom of speech of other religions.
  • And it violates the rule of the separation of state and church and the Establishment Clause.

Religious monuments and symbols presented by a government authority in government buildings or spaces don’t imply that the government in question establishes a religion, prohibits the free exercise of religion and coerces people in religious matters. Onlookers can avert their eyes, and the government doesn’t force people to look, let alone accept what is written on the monument.

However, government sponsored religious displays do establish religious preference and religious discrimination by advancing one religion and inhibiting another. There can be soft pressure if governments link themselves to one religion in a way which is at first sight relatively harmless, as is the case in this context. Other religions, which do not benefit from government affiliation, are, at least in the long term, at a disadvantage. As a result of their “non-official character”, the choice of religion is no longer a free choice but one which is influenced by the fact that the government and, by analogy, the rest of society, favors one religion. Religious liberty is threatened in such circumstances.

Another problem is that people of other religions or non-believers can be forced by such monuments to feel like outsiders, as people who are out of the mainstream, who believe things that are wrong and sinful and who need to be converted for their own good, by the government no less. This “cultural violence” (dixit Galtung) can result in (self-)exclusion and low self-esteem, and in general polarizes and divides a society.

Hence, displays of religious symbols or monuments in public spaces should follow the “all-or-nothing” rule. Public property must be open to all religions on an equal basis – or open to none at all. Since the first option – open to all – would quickly lead to an absurd clutter in spaces which are, by definition, limited, the second is the only realistic option.

Others would say that this second option – prohibitions of all religious displays in public spaces – violates the right to free speech of the government agency and the adherents of the religion which would find a government agency willing to display its symbols and monuments. However, a ban on religious displays can only cover public spaces. There are plenty of places on private land where the Ten Commandments and other symbols can be displayed without the need to include the symbols of other faiths. Freedom of speech in general is a universal value, but that doesn’t mean that everyone can speak everywhere. Everyone can speak and say what they want, but not everywhere. For instance, we can’t all claim equal airtime on national television, or demand a right to speak in parliament.

A ban on religious displays should be enforced only for the purposes of religious freedom and religious equality. Dismantling Christmas trees because they might offend non-Christians is stupid political correctness. Not giving offense is not a sufficient reason for banning religious displays. The only possible reason is religious freedom. (And regarding Christmas, one can easily make the case that this is much more than a religious festival, and hence there are good reasons not to ban displays of it in public spaces).

Another point: atheists shouldn’t see bans as a vindication of their beliefs (I’m not pronouncing myself on the merits or demerits of atheism here). A ban doesn’t amount to the installation of official atheism. It’s just neutrality. Atheist expressions fall under the same ban, since atheism is also a religious belief (there’s no way to prove that God doesn’t exist, as there is no way to prove that He does). The government doesn’t pronounce itself. Not on a religion, but neither on atheism. If you have to give it a name, you could say that a government that tries to respect the First Amendment in this way, is an agnostic government. You couldn’t call it an atheist government.

What is discussed here should also be distinguished from other controversies such as bans on head scarfs, overly prominent minarets etc. Head scarfs and mosques are normally in the private, non-government sphere and are not religious symbols used by government authorities on their land and space. In such cases, we don’t have a government linking itself to a particular religion by way of symbols or monuments, but governments banning religious expressions. This is also a problem of religious freedom, but a different one. Rather than a government associating itself with a dominant religion, there is active persecution of minority religions, fed by fears of religious colonization by migrants, a willingness to protect cultural homogeneity etc.

Religion and Human Rights (10): Apostasy

Apostasy (from the Greek word for defection) is the explicit and formal abandonment or renunciation of one’s religion. The word has a pejorative connotation and is mostly used by the adherents or dignitaries of the former religion of the apostate. It is used as a condemnation. Most if not all religions consider defection a sin, which is a normal position for any religion to take. Religions, like any other group for that matter, are communities that quite naturally regret the loss of a member and consider such a loss the concern of all remaining members. They try to minimize such losses and to recover the “lost sheep” and bring them back into the “umma”. The word “apostasy” as such may not be frequently used by all religions, but all religions and all groups know the concept.

However, most religions believe that persuasion is the only legitimate tool to keep members in the group and that the sin of apostasy will be punished by God in the afterlife. Only some, and a certain form of Islam is an example, believe that it is up to man on earth to punish apostates. They make apostasy a punishable offense and these punishments are human rights violations in two different ways. First of all, the punishments themselves often inflict harm on the victims thereby violating their rights to bodily integrity or even life. And secondly, they violate the right to freedom of religion.

Article 18 of the Universal Declaration of Human Rights guarantees the right to change one’s religion:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. (my emphasis)

Islam is often targeted for its treatment of apostates. However, within Islam there are those like Egypt’s grand mufti Ali Gooma, who take a more liberal stance and use the Koran to back up their position. There are three verses in the Koran that are important:

“There is no compulsion in religion”. “Unto you your religion, and unto me my religion”. “Whosoever will, let him believe. Whosoever will, let him disbelieve”.

The punishments for apostasy are often not purely religious. Politics is implicated. When a state identifies with a religion and receives its authority and legitimacy from this identification, it naturally wants this religion to be the majority.

Belonging

Belonging to a group is an important human aspiration. People want to belong to something larger than themselves. Belonging gives them an identity. However, groups not only promote but sometimes also hinder the creation of an individual identity. They can, for example, impose ideological or dogmatic rules, practices or beliefs. While some people may desire enforced conformism, others will see it as contrary to their freedom. For the latter, belonging and identity should be a free and voluntary choice. It is important therefore that membership is free and that people are allowed to leave. Groups exist for the benefit of the members, not vice versa.

The fact that membership of a group is a free and non-final choice is not an expression of individualism. Communities are a very important part of an individual’s life, but not all kinds of communities. Individuals as members of a particular group must be able to decide when this group is no longer important or has become harmful. It is not up to the groups to decide that they are an important part of their members’ lives. Individuals decide which groups are important, which groups they wish to join or to leave.

If individuals, who wish to leave a group because this group violates their rights or forces them to conform, are forced to stay, then one uses the individuals as means for the survival of the group. The survival of a group is dependent on the presence of members. Using people as means dehumanizes them.

Self-defeating

If a religion forces someone to remain a member, it defeats its purpose. Someone who stays within a religion in order to avoid punishment is not guided by an understanding of the genuine value of the religion.

We can coerce someone into going to church but we will not make her life better that way. It will not work, even if the coerced person is mistaken in her belief that praying to God is a waste of time, because a valuable life has to be led from the inside. [Such a] policy is self-defeating. It may succeed in getting people to pursue valuable activities, but is does so under conditions in which the activities cease to have value for the individuals involved. If I do not see the point of an activity, then I will gain nothing from it. Hence paternalism creates the very sort of pointless activity that it was designed to prevent. We have to lead our life from the inside, in accordance with our beliefs about what gives value to life. Will Kymlicka

Limiting Free Speech (3): Hate Speech

Hate speech (or antilocution, or fighting words) is speech that incites other people to hate a certain group in society defined by common characteristics (race, gender, religion etc.). It usually also incites to commit violence and discrimination based on hatred.

The most famous case is that of the Danish Muhammad cartoons. These cartoons led to worldwide protest and expressions of anger and hate, not only against the cartoonists in question, their newspaper or their country, but against liberals and democrats in general.

However, hate speech is by no means an exclusively Muslim matter. It can be found everywhere where there is hate: it can be racist, anti-gay, islamophobe, etc. It can also be framed in anti-terrorist language: many western countries have initiated legislation outlawing hate speech that is part of Muslim mobilization of terrorists (in militant mosques for example).

Given the importance of freedom of expression, it is not universally accepted that hate speech can be legally prohibited. There is of course article 20 of the International Covenant on Civil and Political Rights which outlaws hate speech:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

However, contrary to hate crimes, such as attack on gays or muslims or writers/movie makers/cartoonists critical of Islam etc., the basic rule should be that speech as such is not a crime, even speech expressing or inciting hatred, violence or discrimination. Speech is protected by the right to free speech.

However, this right, like many human rights, is not absolute and can be limited when it endangers other human rights (like the right to life and bodily integrity, the right not to suffer discrimination etc.). The general defense of hateful speech has therefore some exceptions. It’s a thin line between hateful words and hateful actions. Impressionable people can be led to violent crimes by hate speech. Hate is taught. The example of the Muhammad cartoons protests is again telling in this respect. Many protesters were encouraged by some Muslim leaders to commit acts of violence.

But much depends on the circumstances, the context and the manner of speech. Islamophobia in front of a crowded mosque is obviously not the same thing as islamophobia in an obscure publication. Examples of speech, in the wider sense of the word, such as hanging a noose in a tree in the front yard of the house of an African-American family, or spraying graffiti on someone’s car or house, are more of a problem than posting a picture of a Koran in the toilet on a blog or a website. The first examples are clearly intimidation and can force people to sell their houses and move somewhere else. This has human rights implications (freedom of residence and property rights), which the latter examples don’t have (it’s difficult to argue that a photo of the Koran in a toilet, although undoubtedly an expression of hatred, harms anyone’s freedom of religion).

When speech has implications for the rights of some people, it is legitimate to consider limiting this speech, according to the rules set out in the introductory post of this series.

An important distinction here: all this is about hate, not about speech that is merely offensive, insulting, ridiculing etc. That’s the topic of another post. The distinction, however, can be blurred. What is hateful and what is merely offensive is a matter of personal conviction, it differs between groups and it changes over time. Some groups may be more sensitive than others. If one decides to legislate the matter, this can complicate things.

Moreover, what to someone can be seen as hate – for example homophobia – may be a central tenet of someone else’s religion and therefore protected by the freedom of religion. However, the freedom of religion is not absolute either.

And finally, some examples of speech that were once considered to be hateful – such as “nigger” – have been reclaimed by the groups that were previously targeted, and are sometimes even used as a badge of pride.

Another distinction: it is perhaps possible to imagine hate speech that is not directly or indirectly inciting violence and/or discrimination. Obviously, this kind of hate speech is less dangerous. However, like derogatory speech or offensive speech it does create a problem. It perpetuates negative stereotypes, devalues collective identities, deepens social cleavages and conflicts, makes it more difficult for the community to accept new identities, and it makes debate more difficult. So it makes it more difficult to create and uphold a tolerant, diverse society in which there can be civilized debate and discussion leading to better knowledge.

However, is this reason enough for a legal prohibition on hate speech? I don’t think so. Is it reason enough to combat hate speech with other means? Sure. The remedy for harmful speech is not necessarily prohibition but counter-speech, and sometimes it is best to just ignore some kinds of speech. Engaging the hate mongers, let alone prosecuting them, gives them legitimacy, publicity, and under-dog or victim status.

Religion and Human Rights (7): What is Religious Liberty?

Religious liberty or the freedom of religion and belief is a human right. It is the right to be protected against coercion in matters of religion, to be free to practice and profess a religion of your choice, in private as well as in public, to change your religion, or to practice no religion at all.

Legal rules on religious freedom

Article 18 of the Universal Declaration of Human Rights states:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

This right is closely linked to the right to free expression and the right to free association.

The First Amendment of the U.S. Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It protects the freedom of religion in the US. It’s made up of two parts. The Establishment Clause prohibits the government from passing laws that will establish an official religion or preferring one religion over another. The courts have interpreted the establishment clause to accomplish the separation of church and state and have held that the clause extends to the executive and judicial branches as well.

The Free Exercise Clause prohibits the government from interfering with a person’s practice of his or her religion.

Importance of religious freedom

Religious liberty is an important value because it protects religious diversity and plurality and hence counteracts religious persecution and coercion. It makes a monopoly of one religion impossible – except when culture and demography are such that there is a de facto monopoly which is not contested – and it guarantees the coexistence of different and publicly competing beliefs. In this way, it also guarantees publicity, debate and diversity in general. If there is publicity, debate and diversity on the level of religion, then why not on other levels? On top of that, religious liberty guarantees tolerance: if people can be tolerant – or are forced to be tolerant – in the field of religion, then they will probably be tolerant in other fields as well.

This shows that religious liberty can be of interest to non-religious persons, not only because it protects them from the imposition of a religious belief, but also because it allows them to live in a world of tolerance, publicity ad diversity. Religious liberty is therefore an integral part of a democratic society and a system of human rights.

Problems with religious freedom

However, there is a downside to the concept of religious liberty. Anyone can call their personal insanity a religion in order to try to get government protection. There is no easy answer to the question of what is or is not a religion in the proper sense of the word, but it is obvious that any belief or practice which is part of a religion or claimed to be part of a religion, and which provokes violations of human rights, should not be protected under the right to freedom of religion. Every human right is limited and has to be balanced with other rights.

Freedom of religion is no exception. In particular, the right to absence of discrimination, although closely connected to religious liberty (one should not be treated badly as a consequence of one’s religion), can be a problem if everything can be labeled a religion and if every imaginable theological ideology can enjoy an absolute level of protection granted by the freedom of religion. The equal rights of women should be balanced with the right to practice a religion which provokes discrimination of women. Limiting one right for the sake of another is a normal practice in the field of human rights. This is even more evident in the case of terrorism based on religion.

Separation of state and religion

Religious liberty implies that the state (but not only the state) should not interfere with the religion of its citizens, should not favor or discriminate a particular religion or religions, and should not attach benefits or penalties to any religious affiliation or lack thereof. Religious liberty therefore limits the power of the state and creates a difference between state and society by granting some measure of religious independence to society.

However, religious liberty not only means that the state should avoid interfering in religious matters. It also means that the state should be absolutely neutral as regards religion. There has to be a separation between state and religion (but not necessarily between politics and religion) in the sense that there can be no official state religion. The state should not link itself to a particular religion but should stand above the plurality of different religions. One and the same person cannot be both head of state and head of a church (or an important functionary of a church).

Without this kind of neutrality, certain religions as well as atheists and agnostics will be worse off compared to the adherents of the official religion, if they are allowed to exist at all. Religious liberty means religious equality and the equal treatment of all religions. This equal treatment is impossible if there is some kind of link between the state and a particular religion. If adherence to one religion brings more advantages than adherence to another – and this can be the case when the former is an official state religion or is in any way favored by the state – then there is no real religious liberty. The choice for one religion rather than another will not be a free choice. Even if non-official religions are not actively persecuted or discriminated against, they are worse off when there is no separation between the state and religion because they have less means to influence the public as the official state religion. They are not as free as the official religion.

Another reason why religious liberty implies the separation between state and religion is the need for an impartial judge to mediate between different religions. If different religions are allowed to exist together, we need a non-religious law which regulates their coexistence. It is very unlikely that people adhering to one religion will accept laws which are inspired by another religion. The fact that a religiously neutral state with its religiously neutral laws allows many different religions to exist and to coexist, makes it acceptable to many people. A state which only allows one religion or favors one religion, will only be accepted by the adherents of that particular religion.

The historical fact that religious communities tend to become more and more intertwined within the borders of states, will enhance the attractiveness of this kind of state. A democracy is by definition such a neutral state, because a democracy respects human rights. Once you respect human rights, you also respect religious liberty, and religious liberty leads to religious neutrality on the part of the state.

Just as the state is kept out of religion, religion is kept out of the state. The claims of religion are restricted. A particular religion cannot claim to be the religion of the country in order to take possession of the state or the law and thereby achieve more power than other religions and impose itself on individuals. The state, for its part, is not allowed to prohibit, persecute, discriminate or impose a religion, and it should also avoid using a religion as a means to enhance its authority, as a kind of transcendent confirmation. If you stand close to something glorious, you may hope that something of the glory shines on you as well. You may even hope to become godly, which, historically, has been an enormous advantage to states in pre-modern times. The representative of God on earth is godly as well, and he who is godly is eternal and escapes contestation, which is of course anti-democratic. It is equally unacceptable for a state to use certain religious texts to justify or enforce authoritarian measures.

Separating state and religion may cause some problems. It will for example make it more difficult to universalize human rights. Many cultures, for example Muslim cultures, see this separation not as an advantage but as a problem because religion – unified religion, not the freedom of religion – is still very important in their societies and is considered to be the foundation of politics.

However, state neutrality in religious matters does not imply that democratic politics is necessarily a-religious or atheistic. A democracy executes the will of the people and not the will of God, but if the people believe that their will equals the will of God, then this does not pose a problem as long as the religious rights of the minority are respected and as long as the religion of the majority does not acquire unjustified privileges and does not become the official state religion.

Separation of politics and religion?

This already indicates that the separation of state and religion is not identical to the separation of politics and religion. Religion does not have to remain silent when it comes to politics. It can be a source of inspiration for politicians and it can enhance ethical consciousness and behavior. Therefore, it should not be excluded from politics. It is important to make the distinction between politics and the state. The fact that freedom of religion and the separation of state and religion do not imply the separation of religion and politics can make it easier to impose religious liberty and state neutrality. Religious people obviously and justifiably fear the separation of religion and politics.

The religious neutrality of the state does not necessarily lead to a religious neutrality of politics. A religion is not allowed to infiltrate the institutions of the state, otherwise it would acquire more power than other religions and therefore destroy religious liberty (a choice for a religion is not free if one religion has more power of persuasion than another). But a religion is allowed to try to convince a majority, at least as long as it respects human rights and the liberty of other religions.

Religion and Human Rights (5): Separation of Church and State

The separation of church and state is not always what it seems to be. Religion does not have to remain silent when it comes to politics. It can be a source of inspiration for politicians and it can enhance ethical consciousness and behavior. Therefore, it should not be excluded from politics. It is important to make the distinction between politics and the state. The separation of state and religion is a very important principle.
Freedom of religion requires it because without such a separation the choice of a religion will not be a free one (a state which is linked to a religion can force a religion on people or can force people to abandon a religion).

But this separation does not imply the separation of religion and politics. This distinction between politics and the state can make it easier to universalize the principle of the separation of church and state. Religious people obviously and justifiably fear the separation of religion and politics.

Religion and Human Rights (4): Religious Liberty is About More Than Religion

Religious liberty or the freedom of belief is a human right. It is the right to be protected against coercion in matters of religion, to be free to practice and profess a religion of your choice, in private as well as in public, to change your religion, or – which is often forgotten – to practice no religion at all and to be free from religion.

Religious liberty is an important value because it protects diversity and plurality and hence counteracts religious persecution and coercion. It makes a monopoly of one religion impossible except when culture and demography are such that there is a de facto monopoly that is not contested and it guarantees the coexistence of different and publicly competing beliefs.

In this way, it also guarantees debate and diversity in general. If there is debate and diversity on the level of religion, then why not on other levels? On top of that, religious liberty guarantees tolerance: if people can be tolerant – or are forced to be tolerant – in the field of religion, then they will probably be tolerant in other fields as well. This shows that religious liberty can be of interest to non-religious persons, not only because it protects them from the imposition of a religious belief, but also because it allows them to live in a world of tolerance and diversity. Religious liberty is therefore an integral part of a democratic society and a system of human rights that also aim at such a world.

Religion and Human Rights (3): The Historical Origins of Religious Liberty

The European religious wars not only caused harm and tyranny (tyranny because it led to the creation of absolutism by the European monarchies trying to restore peace and tranquility). It also led to the institution of religious liberty. After all, the state had no choice but to put itself above the factions. Only by loosening its ties with a favoured religion and guaranteeing a free and equal space for every religion, was it able to channel the struggle away from violence. As religion had become a dangerous and dividing power, it became clear that the state had to separate itself from the church, not only to keep the peace, but also to maintain itself.

The duty of the state to support one particular religion was replaced by the duty to protect the plurality of religions. Religious freedom gave citizens who belonged to a religious minority the power to claim protection from the state. In this way, the state not only liberated the people from the horrors of religious wars, but also from the pressure of religious conformity.

The fact that, in our day and age, global mobility and globalization encourage competition between and coexistence of different religions, makes it likely that the local historical events which resulted from the struggle between Catholicism and Protestantism in Europe – which have been events limited to the history of the West – will be reproduced elsewhere in the world. Different states in different parts of the world will feel the same need to pacify competing parties by putting themselves above these parties. They can only put themselves above competing religious communities if they separate themselves from religion and if they grant religious liberty. Only religious liberty can produce peaceful coexistence in a plural society. The option of suppressing one or all of the competing parties (as is attempted in China for instance) will only produce revolt and will lead us away from rather than towards peace and security.

These contemporary historical developments justify and promote the universality of the right to religious liberty.