Limiting Free Speech (48): Equal Influence, Money in Politics, and “Citizens United”

The US Supreme Court’s decision in Citizens United correctly emphasized the importance of free speech in a democracy. (There’s a thorough discussion of this point here). Free speech serves to expose government corruption and is the means to hold governments accountable to the people. The people also need free speech to deliberate on possible policies and on the respective merits of political parties, candidates and incumbents. The latter in turn need free speech to make their point and attract support and members. And, finally, political assembly, protest and organization require speech.

So it’s fair to say that no democracy can function without free speech. It’s also important, as noted by the Court, that this speech right should not be limited to individuals. Organizations, such as corporations, labor unions, pressure groups etc. should also enjoy this right. They are, after, all, collections of individuals who may want to exercise their free speech rights in common.

However, this is precisely the main problem in the Court’s decision: politics is already heavily dependent on corporate funding. Giving corporations an unlimited right to marshal their substantive resources for corporate political speech would only increase the influence of money on politics. Enormous amounts of money are already necessary in order to win elections in our present-day democracies, especially in the U.S. Candidates have no choice but to accept contributions from those members of society who have the money, and those are generally private corporations. There’s a persistent feeling that candidates can be “bought” and that, as a result of contributions, the interests of large donors receive disproportionate government attention. This may or may not be corruption, but it flies in the face of democratic ideals that tell us that it’s the people who rule, not large donors.

The Citizens United decision seems to make this situation worse by stating that corporations have an unlimited right to engage in political speech and that they can, for example, fund political commercials endorsing or attacking a candidate. As such, this right should not be controversial since it’s part of the right to free speech. However, many people fear, rightly in my opinion, that corporate speech, because it can use disproportionate financial resources, will drown out the voices of everyday citizens and give corporations a role that’s even more important than the one they have already managed to secure for themselves through campaign contributions. Hence some form of limit on corporate spending should be possible. And this applies to both campaign contributions and corporate political advocacy in favor or against certain candidates. Corporations would keep their speech rights, of course, but we would simply limit the amounts of money they could spend on their political speech. In fact, rather than a limitation of speech as such, this is merely a limitation of the amplification of speech.

Now, it’s in the nature of speech in general that some voices drown out others. Some people have more interesting things to say, some are not interested in saying anything, some are better at speaking or are better educated, and some have more resources or time to speak. However, we do generally try to equalize speech in some way, even in ordinary life. We have rules on etiquette and politeness. We think it’s better if people speak in turns, for instance. We don’t allow the best speakers to monopolize everyday discourse. Also, we subsidize education, and one of the reasons why we do that is to give people the ability to speak their minds.

We usually try to do something similar in politics. Democracy is the ideal of the rule of the people. That means that everyone’s influence on politics should be more or less equal. It’s useless to adopt a principle like “one man one vote” if afterwards we allow asymmetrical speech power to dramatically increase the political weight of one vote over another. We know that this ideal of equal influence is impossible to attain, and yet we try to make influence as equal as we can. Limits on campaign spending and financing are part of that effort: a candidate should not be allowed to dramatically outspend other candidates because that would give him or her a disproportionate influence over the voting public. For the same reason, donors should not be allowed to contribute excessive amounts to a single candidate, because then that candidate would be able to outspend other candidates. Now, why not limit corporate advocacy spending as well?

Of course, campaign contributions to candidates as well as spending on advocacy in favor of candidates are clearly acts of political speech, and therefore protected by default. By donating to a candidate or a party, or by funding or producing political advocacy, you state your political preferences. And the fact that this “you” is not, in our case, a private person but a corporation shouldn’t change anything. A corporation is a collection of private persons (owners, directors or shareholders) and they have a right to voice their opinions collectively, using their collective resources, just like other collectives.

However, all this doesn’t mean that we’re talking necessarily about an unlimited right. If corporations or other entities with a lot of resources (wealthy individuals, labor unions etc.) are allowed to donate without limits or to engage in unlimited advocacy, it’s likely that they thereby “buy” a disproportionate share of influence. And this, ultimately and after a certain threshold is passed, destroys democracy. The beneficiaries of their donations or advocacy will receive more attention during the election campaigns, and will in turn give more attention to the interests of their backers once they are elected. During the campaign, it will seem like the beneficiaries of excessive contribution or advocacy have the better arguments because those arguments receive more attention. Simply the fact that a story is “out there” and is repeated a sufficient number of times gives it some plausibility and popularity. There would be no commercial publicity or advertising if this weren’t true. Flooding the airwaves works for elections as well as sales.

However, are we not infantilizing the public with this kind of argument? Is a voter no more than an empty vessels waiting to be filled by those political messages that are best able to reach him? Or can they see through it all and make up their own minds irrespective of what they hear and see? If they see that a candidate receives large amounts of money from a particular company, isn’t that reason enough to vote for the other candidate? The truth is likely to be somewhere in between. People are neither empty vessels for donors, nor objective arbitrators of political truth. And the fact that they can be partly influenced should be reason enough to restrict the political speech rights of those with large resources – or better their right to amplify their political speech. It’s not as if they can’t make their point. It’s just that they shouldn’t be allowed to push their point. Just like we don’t allow a heckler to silence others, or a bully to just keep on talking because he never learned the rules of politeness.

Limiting Free Speech (45): Selling Violent Video Games to Children

A recent US Supreme Court ruling invalidated a California law that banned the sale of certain violent video games to children on the grounds that the law violated freedom of speech. The controversy is an old one, and goes roughly as follows. Proponents of laws banning violent media – especially the sale of violent media to children – point to different studies arguing that violence in media promotes violence in real life and that children in particular are at risk of becoming violent adults. Since people have a right to be protected against violence and children have a right not to suffer the psychological harm that purportedly comes from the consumption of violent games, we have here a case of rights conflicting with each other: on the one hand the free speech rights of the makers and sellers of games, and on the other hand the security rights of the potential victims of violent behavior provoked by the consumption of violent games, as well as the mental health rights of the consumers of those games. Hence, one of those rights should give way to the other rights.

Proponents of restrictions of free speech in this case argue that a prohibition of the sale of violent games to children is the best option since the speech value of a violent video game is small, and since producers of such games still have the freedom of “artistic expression” because they can still sell to adults. The cost of limiting free speech in this case is small compared to the gains in terms of physical security and psychological health. And there are precedents such as movie ratings.

The opponents of limitations on free speech can also point to studies showing the absence of an effect on real life violence or even the opposite effect – the so-called “pressure valve theory“. They can also use the slippery slope argument and claim that the sale of many classical works of fiction should then also be prohibited on the same grounds, since they also contain scenes of violence.

The US Supreme court sided with the opponents, unsurprisingly given the near absolutism of free speech protection in the US (only a couple of exceptions to free speech are recognized in US jurisprudence, and expression of violence isn’t one of them).

While I personally find US free speech jurisprudence difficult to accept and generally hypocritical – why can obscene material be censored but not violent material? – I think in this case the SCOTUS decision is probably right. The psychological evidence does not, as far as I can tell, clearly show an effect of media violence on real life violence, and even if there is a small effect, a general prohibition on violence in media probably goes too far, as does a general prohibition on the sale of media containing violence. Even a prohibition on the sale of such material to children is probably too much, even given the fact that children are more impressionable. Violence has many causes, and the “pressure valve” theory has some intuitive appeal (also in the case of pornography by the way). A rating system, allowing parents to do their job, is probably better.

Limiting Free Speech (41): Crush Videos

In its irresistible march toward the deification of the First Amendment, the U.S. Supreme Court has again decided in favor of free speech absolutism. (And it’s not like I don’t care about free speech). In United States v Stevens the Court ruled that a federal law criminalizing the commercial production, sale, or possession of so-called crush videos was an unconstitutional abridgment of the First Amendment right to freedom of speech. The movies in question are depictions of cruelty to animals, used to satisfy a particular “sexual fetish”. They feature the intentional torture and killing of helpless animals, often by women wearing high-heeled shoes who slowly crush animals to death while talking to them in a dominatrix voice (source).

Let’s assume that cruelty to animals is universally considered a crime. If we can agree on that, we can – I think – also agree that filming a crime and distributing the movie is not, by definition, a crime in itself. On the contrary, it can help solve the crime. Think of the Rodney King video for example. However, if a crime is filmed, and the makers of the film fail to notify the authorities, then they can be considered as accomplices or guilty of criminal neglect. The crime then is the failure to notify the cops, not the act of making a video. The video itself should not be banned or criminalized, only the failure to report a crime.

But we can go one step further. In the case of crush videos, the video of animal cruelty is not contingent to the act of cruelty itself. In other words, the act of cruelty – the crime – would not have taken place had it not been filmed. The precise purpose of the act of cruelty is its videotaping and the subsequent sale of the videotaped cruelty. There would have been no crime had it not been filmed. So, we can reasonably assume that the act of cruelty, the filming of it, and the distribution of the film are in fact one and the same act. It’s therefore wrong to claim that we are dealing here with a simple case of free speech. The speech part of the act – distributing the film – is inseparable from the other parts of the act – cruelty and filming. If you care about the enforcement of anti-cruelty laws, you should make the distribution of such movies illegal and carve out an exception to free speech. If, on the contrary, you allow the distribution, then you provoke, condone or at least accept the existence of cruelty. In the words of Alito – dissenting:

criminal acts … cannot be prevented without targeting … the creation, sale, and possession for sale of depictions of animal torture.

If you enforce anti-cruelty laws, you de facto limit freedom of speech. So, either you take an absolutist position on free speech and you have to allow animal cruelty and violation of the law, or you don’t want to allow that and then you can’t take an absolutist position.

Anyway, free speech absolutism isn’t a widely held position, not even in the Supreme Court. Many kinds of speech have historically been granted no constitutional protection by the Court (“well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem”):

• obscenity
• defamation and libel
• fighting words
• incitement
• child pornography
• speech integral to criminal conduct and
• solicitation of crime.

However, in this case, the Supreme Court was not inclined to add an exception for another type of speech, even though the harms caused by animal cruelty perhaps outweigh those caused by obscenity for instance. This disinclination is even less understandable when you consider that in United States v Stevens, Justice Roberts – for the majority – cited the older rationale for prohibiting child pornography, namely that it’s a special case because the market for it is intrinsically related to the underlying abuse. How is the same rationale not applicable in the case of animal cruelty? It seems to me that both child pornography and depictions of animal cruelty fall within the Court’s longstanding jurisprudence that “speech or writing used as an integral part of conduct in violation of a valid criminal statute” (source) is a valid exception to the general rule of freedom of speech.

Crime and Human Rights (9): A Human Right to Possess and Carry Firearms?

Well, possessing and carrying firearms certainly isn’t a human right since it’s not mentioned in any global human rights treaty or declaration. Neither is it a right that’s demanded by the majority of people in the world. It seems to be an exclusive preoccupation of many in the U.S., where the Second Amendment to the Constitution declares:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. (source)

Guns and violence

Whether or not this is an example for other countries to follow, or whether or not this is a good thing for the U.S., are questions worth pondering. The fact that Americans kill one another at a much higher rate than do residents of comparable western European nations, and that this gap persists despite a roughly 40 percent drop in the US homicide rate in the last 15 years or so, is a first indication the answer to those questions is likely to be negative. Gun rights in the U.S. has led to widespread gun possession:

The United States has the largest number of guns in private hands of any country in the world with 60 million people owning a combined arsenal of over 200 million firearms. (source)

And it so happens that this widespread possession is correlated with high crime rates. However, this correlation between gun ownership and violence doesn’t have to be causal. Both numbers can have a third factor causing them both, such as high levels of endemic aggression. Reducing the number of guns would then perhaps fail to reduce the levels of violence. However, I don’t believe in such a third factor and there is proof of a causal link between guns and aggression:

Do guns make men more aggressive? Looks like the answer is “Yes, unless they handle guns a lot.” … We tested whether interacting with a gun increased testosterone levels and later aggressive behavior. Thirty male college students provided a saliva sample (for testosterone assay), interacted with either a gun or a children’s toy for 15 min, and then provided another saliva sample. Next, subjects added as much hot sauce as they wanted to a cup of water they believed another subject would have to drink. Males who interacted with the gun showed significantly greater increases in testosterone and added more hot sauce to the water than did those who interacted with the children’s toy. Moreover, increases in testosterone partially mediated the effects of interacting with the gun on this aggressive behavior. (source)

Deterrence

On the other side of the argument, you have people claiming that more guns mean less crime. Gun possession is supposed to have a deterrent effect on criminals. At first sight, that sounds convincing: when potential criminals know that there’s a high probability that their potential victims carry or possess guns, they may think twice before deciding to rob someone. Still, how does this square with the correlation mentioned above? Why is there so much crime in the U.S. if gun ownership deters crime? The only explanation is that crime rates would be even higher in the U.S. without gun rights:

Because … while we hear about the murders and accidents, we don’t often hear about the crimes stopped because would-be victims showed a gun and scared criminals away. Those thwarted crimes and lives saved usually aren’t reported to police (sometimes for fear the gun will be confiscated), and when they are reported, the media tend to ignore them. No bang, no news. It is quite clear that we have not seen any massive increase in crime, even though we have shifted from a situation where about 10 states allowed nearly every law-abiding adult to get a concealed carry license to a situation where 40 states do. So the fears of gun control proponents certainly have not materialized. (source)

The argument is that while guns may be dangerous and lead to murders and violence, gun ownership for self-defense purposes often prevents violent crime and thereby saves lives. Gun rights activists claim that on balance the gain is larger than the loss. Moreover, they argue that other rights can also cost lives (free speech for nazis can lead to authoritarian rule, rights ensuring that people have a fair trial can result in criminals escaping jail sentence etc.).

Supposing all this is true, the question is then what on earth is wrong with the American psyche that even a supposedly massive deterrent effect still produces crime rates that are higher than in other comparable countries that don’t have the same deterrent? I don’t think there’s anything particularly wrong with Americans, and hence this deterrent effect is probably largely imaginary (as are other deterrent effects).

I should also mention that the “more guns, less crime” narrative that claims that the number of lives saved by guns is larger than the number lost, often relies heavily on some seriously flawed research by the notorious John R. Lott (read more about this guy’s methods here and here). If you see or hear anyone defending gun rights and using Lott’s work, you can safely move on.

Self-defense

However, even if it’s not clear that a consequentialist or utilitarian defense of gun rights can work (that in other words gun rights produce overall higher utility levels that gun prohibition or gun control), it’s still possible to make a rights-based case for gun rights. You can argue that people have a right to the means of self-defense, whatever the overall balance of violence. I personally think that this is the strongest of the arguments in favor of gun rights. If you can connect gun rights to existing human rights such as the right to life and the right to physical security, you can make a strong case.

For decades, liberals have insisted that the Constitution assumes—even if it does not explicitly spell out—a right to bodily autonomy. This right, long disputed by conservatives, is a basis for arguments in favor of abortion rights and gay rights. Liberals who support gun rights find a similar implied right to own weapons: after all, they say, what is the right to bear arms but the ability to protect your body from criminals as well as the government? The right to bear arms gives you a mechanism to protect your bodily autonomy from attack. (source)

This link to abortion is an interesting one. Both abortion and gun rights can be defended on the basis of bodily autonomy, self-determination and self-defense. But then again, it’s rarely the same people who defend abortion rights and gun rights. On the contrary, gun rights activists are often decidedly against abortion. There’s an interesting story here about a campaign against abortion in black families.

“BLACK CHILDREN ARE AN ENDANGERED SPECIES,” the billboards proclaim. Posted in dozens of locations in Atlanta’s black neighborhoods, they direct readers to a Web site that denounces abortion as a racist conspiracy. Through them, the pro-life movement is sending a message that it cares about the lives of black people. But does it?

The Web site plays every race card in the deck. It says “abortion is the tool [racists] use to stealthily target blacks for extermination.” It calls on readers to “expose the insidiousness of the pro-abortion agenda and its real target: the black community.” It touts the support of “Dr. King,” a niece of Martin Luther King Jr. “I know for sure that the black community is being targeted by abortionists for the purpose of ethnic cleansing,” she asserts.

What’s the basis for these charges? The campaign points to eugenic ideas and influences in the early birth-control movement. But its chief evidence is abortion rates. “Abortions in the black community occur at 3x the rate of those among the white population and 2x that of all other races combined,” the site points out. “The truth screams loud and clear—we are killing our very future.”

The numbers are provocative. But there’s something odd about the billboards. The child who appears beside the text is fully born. Abortion doesn’t kill such children. What kills them, all too often, is shooting. If you wanted to save living, breathing, fully born children from a tool of extermination that is literally targeting blacks, the first problem you would focus on is guns. They are killing the present, not just the future. But the sponsors of the “endangered species” ads don’t support gun control. They oppose it. … Maybe that’s why blacks, unlike whites, strongly favor gun control. (source)

This example of how gun control can help the black minority in the U.S. is often countered with another example of how it has been used to work against blacks. Gun control does indeed have a history as a tool for subjugation of blacks.

After the Civil War, the defeated Southern states aimed to preserve slavery in fact if not in law. The states enacted Black Codes which barred the black freedmen from exercising basic civil rights, including the right to bear arms. Mississippi’s provision was typical: No freedman “shall keep or carry fire-arms of any kind, or any ammunition.” (source)

Gun control left the freedman defenseless against the KKK and unable to form militias to resist white terrorism. However, I fail to see how a very specific and largely closed period in American history can justify rights more than 100 years later, especially if there are contemporary examples pointing the other way.

A final self-defense argument against gun control is the possible revolution against a dictatorial government. The “people” may need firearms to rise up when government becomes tyrannical. Now, I know that there’s currently a lot of right-wing anti-Obama hysteria and paranoia doing the rounds about a supposed dictatorial plot. However, I think it’s very unlikely that any U.S. government can ever achieve tyranny, even if it very much wanted to. And suppose it did, how can you be so foolish to believe that handguns would allow the people to defeat the superior firepower of the U.S. government?

Regardless of your position on the Second Amendment, whether the Second Amendment’s right to keep and bear arms is “fundamental” to “our scheme of ordered liberty” is severely questionable.  Certainly other countries are able to have something that we would call “ordered liberty” without ironclad protection of firearms ownership rights.  And while historically there may have been instances where the ability of the citizenry to safeguard or expand “ordered liberty” via ownership of firearms, the restrictions that are allowed on the Second Amendment under Heller ensure that the government’s advantage in firepower will be insurmountable in such hypothetical circumstances nowadays. (source)

Gun control

What I personally would favor is not prohibition but extensive gun control, including bans on gun possession by felons or minors etc., bans on the open or concealed carry of guns in certain places such as schools etc. I can understand why some people think they need a gun for self-defense. The question is, however, if restrictions on gun rights will still be possible after the recent Supreme Court case, McDonald v. City of Chicago.

The argument that gun control laws don’t work and don’t bring down the number of crimes isn’t necessarily correct. You would have to measure against the counterfactual, which is very difficult: without gun control laws, crime would perhaps have gone up, so a failure to reduce crime isn’t necessarily a failure of gun control laws. Maybe they simply reduced the growth in crime rates. Also, failure to bring down crime rates may be not the fault of gun control laws but of the way they are designed or enforced. And anyway, there is evidence that gun control laws do bring down crime rates.

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.