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.

Religion and Human Rights (19): Between Equality and Diversity – The Rule of Law, Except When…

One of the principles of liberal democracies is equality before the law. The law shouldn’t protect or harm some citizens more than others (and to some extent this even applies to non-citizens within the jurisdiction of the democracy). The law applies equally to all.

Diversity

This principle, however, can be put to the test by another principle that is important to liberal democracies, namely tolerance of diversity. Most democracies are multicultural in the sense that they are made up of many different groups that have often radically different and incompatible beliefs, customs and norms. Liberal democracies value this diversity and have mechanisms to protect it, such as rules on tolerance, religious liberty, freedom of association etc. They value this diversity and try to protect it for at least three reasons:

  • They believe that group identity is an important source of individual identity and well-being.
  • They believe that group diversity offers a plurality of perspectives, and that this is necessary if deliberations on fundamental issues are to progress towards the truth.
  • The believe that national unity isn’t only or primarily a matter of assimilation or convergence towards a single, national and official doctrine, but rather of peaceful coexistence in diversity.

Rules and exemptions

This tolerance of diversity can be burdened by equality before the law. Many liberal democracies have been forced to accept certain exceptions to the principle of the equal application of the law, and have exempted some groups from certain generally applicable laws. Some  examples:

  • Anti-discrimination laws: groups have been allowed to discriminate, for example regarding their membership rules, or their internal operating rules, on the condition that they allow a right to exit of members who come to find this unacceptable.
  • Because of their religious obligations, Sikhs have been exempted from the obligation to wear crash helmets for motorcyclists or safety helmets for construction workers, or from the prohibition to wear knives in public.
  • Certain indigenous peoples have been exempted from prohibitions to fish or hunt or to slaughter animals in a certain way.

The rationale for such exemptions is that a “neutral” law, which is by definition equally applicable to everyone, may not have the same effect on everyone. It may unintentionally place a relatively heavy burden on a very specific minority because it unintentionally prohibits or compels a certain practice which has special significance for that minority. Such exemptions may be deemed necessary to preserve the distinctive identity and way of life of the minority, and to preserve the diversity and harmony of society as a whole.

This opt-out right, which allows minorities – usually cultural or religious minorities – to not apply or respect the general law, is similar to the right of conscientious objection. In many countries, refusal to serve in the military – otherwise a general legal rule – is a legally recognized option. (However, the opt-out right is not the same as civil disobedience, which isn’t a legally recognized option and the disobedient usually accept the consequences of breaking the law. Breaking the law and publicly accepting the consequences is precisely their purpose. They want to create a public spectacle showing the injustice of the law).

Possible objections against the opt-out right

1. Illiberal consequences

Exemptions are often granted for rules that are not really intended to protect third parties (such as crash helmet rules) or that do not create substantial harm when occasionally they are not applied (e.g. hunting exemptions). However, if we accept the general possibility of an opt-out right, can we not end up in a situation in which minorities are allowed to disrespect fundamental rules such as human rights, either internally in the group or externally? The classic example is the possible right of Muslim minorities in liberal democracies to apply Shari’a law within their communities.

Obviously, such far-reaching exemptions sound outrageous to those of us for whom human rights are very important. Yet I believe that even those exemptions can be justified in certain cases: they would only be acceptable if the following three conditions are jointly met:

  • The groups in question do not violate the human rights of people outside of the group.
  • The groups provide the right to exit in a substantial way. “Substantial” means that they do not only provide the formal right to exit but also provide members the educational, intellectual, moral, financial and other resources necessary to make a free and conscious choice about staying or leaving. However, it’s often very difficult to say whether a particular group is a truly voluntary association and whether members have a real choice to leave. Only when this is indeed and obviously the case can such far-reaching exemptions be allowed. There’s also the case of group members that are incapable of making a real choice, e.g. children. Exemptions cannot be allowed to produce violations of their rights, since they cannot exit.
  • The rights violations are an essential part of the group’s identity rather than an opportunistic policy of the group’s leadership.

2. Exemptions for what?

This third condition leads to a second possible objection to the opt-out right: which elements of a group’s identity are strong and central enough to warrant an exemption from a generally applicable law? Who decides which are these elements? Do we trust the spokespersons of the group? But how are they appointed and do they speak for the group? Or is it not likely that they have some selfish reasons for exemptions and the possible rights violations resulting from them, given that they are likely to be in a position of power inside the group? If not the spokespersons, should it be outside elements, engaging in anthropology, or cultural exegesis?

3. Domino effect of exemptions

Another objection: every law puts more burdens on some citizens than on others. Smoking bans put a heavier burden on smokers, shoplifting laws on kleptomaniacs etc. If we provide exemptions for laws which burden cultural, ethnic or religious groups, why not also for kleptomaniacs? And if we would do so, wouldn’t the whole construction of the rule of law tumble under the weight of exceptions? Of course it would, but that’s not the reasons why we limit exceptions or exemptions (one can argue that these are not the same, but I’ll bracket that for the moment) to those which protect group identity. As stated before, group identity – contrary to kleptomania or other possible reasons for exemptions – is deemed to be a very important value in liberal democracies, and important enough to override in some cases the other important value of equality before the law.

Citizens who do not belong to a group that has received an exemption to a general rule may complain that they are discriminated against, compared to the members of the group. These citizens may also want to opt out of the rule – for example a rule imposing military service – not for religious or cultural reasons, but for other reasons, and not necessarily for opportunistic reasons. Indeed, it may seem arbitrary to limit exemptions to cultural and religious groups. But we have to admit that such groups are more likely to suffer from  special burden imposed by general rules, and that they are particularly important to the diversity of liberal societies.

4. Calcification of groups

Exemptions or the opt-out right require strict identification of group members. It must be possible to decide which individual citizens in a society are free to not respect a certain law, otherwise law enforcement becomes impossible. This may have consequences for the exit right. The state fixes group membership. Not only should the state not do such a thing, but it shouldn’t be done at all. The exit right is important, especially when we decide to allow controversial practices. And this right can be harmed if group composition is officially sanctioned.

Moreover, this strict identification of membership implies a simplification of human identity and group identity. Groups are often complex and internally contradictory. Opt-out rights fix not only membership but also group identity: the state decides once and for all, by granting a legal exemption for a certain practice, that this practice is typical of a group. Internal dissent within the group, and directed against the practice, is then stifled. The state has then sided with the most powerful factions within a group, and that’s not something a liberal state should do.

One could object to this objection by claiming that the “losers” of the internal struggle to determine the group’s identity still have the right to leave the group. However, that also isn’t a choice that the state should determine. It should allow dissenting group members – such as feminist Muslims or gay Catholics – to continue to dissent within the group, rather than impose the limited choice of either accepting the dominant doctrine of the group – a doctrine elevated to dominance with the help of the state and the opt-out right granted by it – or leave the group.

The effort to protect groups from external pressure can inadvertently promote internal pressure. In other words: the effort to protect a group from externally imposed change can stifle internally promoted change. By recognizing a practice as typical of a group and worthy of an exemption to a general rule, the state helps to cement this practice, perhaps against the wishes of minorities within the group that work against the practice.

5. Opportunism

It’s often difficult to tell if an exemption is demanded by a true group member for identity reasons, or by a wavering member for opportunistic reasons. Or, for that matter, by an individual who decided to join the group, not for substantial reasons but to escape the law.

Conclusion

I believe exemptions are sometimes justifiable, especially if the risk of harm created by the exemption is relatively small compared to the benefits for the groups enjoying the exemption. But there are many practical problems related to the decision whether or not to grant an exemption.