Arguments for the Human Right to Religious Freedom
Arguments for the human right to religious freedom 1.
John Courtney Murray, S.J.
The following article is the closest that the later Murray came to a "purely natural law," philosophical argument. As mentioned in the general introduction, Murray began his 1945 philosophical argument with "essential definitions" of key terms that he though relevant to that debate—terms such as "conscience," "law," "state," and "God." Here he is defining the term "human dignity" that serves as the philosophical foundation for the right to religious freedom. In doing so, however, he is not delineating a timeless essence. Rather, he is making explicit a notion that, he contends, has emerged within Western societies. After the mid-1950s, natural law had become for Murray a developing tradition of ideas, commitments, and procedures that course through the social and political thought of a secular society that is continuously on the move.
In terms of the structure Murray established in "The Problem of Religious Freedom," this complex, secular notion of human dignity "converges" with the church's own, theologically-based judgments concerning the church's place in human history and its own freedom. That the secular society's and the church's judgments ought to converge is of course based in Murray's notion of Gelasian dualism (and concordia), as is his judgment that the church ought to affirm and defend human dignity as a social good. Since Murray is here simply trying to tone up Dignitatis's philosophical argument, the theological presuppositions of his earlier arguments recede into the background.
Here Murray strengthened his conciliar argument by adjusting the relative positions of the various principles that he had clarified in those conciliar discussions. The reader might especially note the positioning of the principle "as much freedom as possible" in this article, in contrast to its place in "Problem."
Yet a question remains: Is this what Western societies affirm when they proclaim commitments to human dignity? For Murray, the notion is intrinsically social and historical. It involves a view of the human person as constantly active within, and possessing responsibilities toward, the societies in which they live. Some criticisms of Western individualism do not find such a social notion of the human person at the heart of the Western experiment, while others find sociality there, but also a reticence to talk about those implied social commitments. Murray's understanding of human dignity also includes an intrinsic drive toward all that the human mind and heart can question, including the reality of God. Again, some criticisms of Western culture find at its core a constraining materialism. At the least, Murray's exposition perhaps can demonstrate that our alternatives are not simply between individualistic isolation and communitarian emersion, materialistic constriction and spiritualistic escapism. It might be possible to develop an understanding of the human person that preserves both the strong sense of personal integrity and worth of the individualist traditions, the social interdependence of more communitarian traditions, and a strong concern for material existence that is involved in commitments to social justice—Editor.
The Vatican Declaration " Dignitatis humanae personae " affirmed that the human person has a right to religious freedom. It showed that the concept of religious freedom is clear, distinct, and technically exact regarding both its ground and its object, and adequately developed concerning what it embraces. First I will reiterate what the council meant and what generally is meant by religious freedom. Then I will address the more difficult question of how to construct the argument—whether derived from reason or from revelation—that will give a solid foundation to what the Declaration affirms. For nearly four years the conciliar Fathers and experts vigorously debated this justification, eventually completing the brief argument found in the Declaration (n.2,3). Even so, it is fair to say that this argument has pleased or pleases no one in all respects.
We can legitimately debate how better to construct the argument. For the Council's teaching authority falls upon what it affirmed, not upon the reasons it adduced for its affirmation. The Council did not intend that the Declaration establish an apodictic proof. The Declaration was merely to outline certain arguments, mainly to demonstrate that the affirmation of religious freedom is doctrinal. 2 The church's affirmation is based upon arguments drawn both from human reason and from Christian sources. Please allow me, then, what you have allowed others: to discuss this whole matter briefly.
I. Civil Religious Freedom
To begin with, it will be useful carefully to delimit what we must argue. This will not be difficult if we keep in mind that the concept of religious freedom includes a two-fold immunity from coercion.
First, in the sphere of religion no one is to be compelled to act against his conscience. Nowadays this principle is one upon which all persons of judgement agree, unshakably. Enough, then, to recall that for us Christians this principle derives its strongest argument from the necessary freedom of the act of Christian faith, a doctrine licitly and necessarily extended to the profession of every religion.
Second, in the sphere of religion no one is to be impeded from acting according to his conscience—in public or in private, alone or in association with others. It is around this second immunity that the conciliar debate turned. This second immunity had long been a historical problem; it remains a theoretical or doctrinal problem. It will help to clarify the problem.
Discussion of the human right to religious freedom calls for further inquiry into the foundations of the juridical relationship among human beings in civil society. The concept of a juridical relationship properly includes the notion of a correspondence between rights and duties. To one person's right there is a corresponding duty incumbent on others to do or give or omit something. In our case, the human person demands by right the omission of all coercive action impeding a person or a community from acting according to its conscience in religious matters. Therefore, the affirmation that every person has a right to such immunity is simultaneously an affirmation that no other person or power in society has a right to use coercion. On the contrary all others are duty- bound to refrain from coercive action. The second immunity, then, requires a compelling argument that no other person can raise, as a right or duty, a valid claim against that immunity or, put positively, that all are obliged to respect that immunity. The whole matter hinges on this argument for the juridical actuality of the second immunity.
To clarify this point, let us suppose that there does exist in human society a power that possesses the right to prohibit religious practice. Such a power could only be the public power (the state). Certainly a right of this kind could not be possessed by any private person or intermediate social group. One could argue—indeed, many have so argued—that the public power does possess such a right because of its duty toward the good of society and because it has a monopoly on coercive power that it must exercise for the good of society either by means of legislation or of administrative action.
To establish, then, that the human person enjoys a right to full religious freedom, one must first establish that the public power has no right to restrict religious freedom but has rather the duty to acknowledge and protect it.
Such being the case, clearly our inquiry, although of its nature ethico-juridical, is nevertheless finally and formally political, or what is called constitutional. By this I mean that it deals with the duties and rights of the public power—their nature, their extent, and their limits.
The classic difficulty in this matter is well known. It begins in the human person's obligation to act intelligently, i.e., according to his conscience. Yet it sometimes can and often does happen that someone who acts according to his conscience can act contrary to the objective order of truth—for example, by practicing a form of public worship not wholly in agreement with the divine ordinance or by disseminating religious opinions not in conformity with divine revelation. Surely spreading religious errors or practicing false forms of worship is per se evil in the moral order. About this there is no doubt. But our inquiry is not about the moral but about the juridical order. Does the public power have the duty and the right to repress opinions, practices, religious rites because they are erroneous and dangerous to the common good?
The Vatican Council's Declaration denies that such duty and such right fall within the competence of the public power. Yet we still must ask: On what justifying argument does this denial rest? Why may the limitation placed on the public power in matters of religion be considered just and legitimate? Thus is the state of our question. I will now evaluate the various arguments that were put forward to confirm the person's right to freedom in religious matters.
II. Arguments for Religious Freedom
First we must note that the doctrine of the Declaration is today supported by the sense and near unanimous consent of the human race. This is also intimated at the very beginning of the Declaration. The Declaration also suggests that this consent does not rely upon the laicist ideology so widespread in the nineteenth century but upon the increasingly worldwide consciousness of the dignity of the human person. It relies, therefore, upon an objective truth manifested to the people of our time by their own consciousness. Before adducing other arguments, then, the presupposition obtains and prevails that the teaching of the Declaration is also true. Securus enim iudicat orbis terrarum . 3
From this it follows that the Council's sole purpose in adducing the argument in favor of the right to religious freedom is to clarify and strengthen under the light of both reason and Christian revelation the more of less confused contemporary consciousness of human dignity.
A: From Conscience
The first conciliar attempt to do so was laid out in the arguments of the first and second schemata. 4 The basis of that argument was the moral principle that in religious matters man in held bound to follow his conscience even if erroneous. From this moral principle the schema deduced, as if immediately, the moral-juridical principle that to man is due the right to be free in society to follow his conscience.
This moral argument if correctly expounded has its force. But ultimately it is defective because unable to demonstrate what, in line with our statements above, has to be demonstrated.
The moral principle is entirely valid that man is duty-bound always to follow his conscience. From this follows the moral-juridical principle that man has the right to fulfill his duty. No difficulty arises if the conscience in question is right and true. This is evident. But if the conscience in question is right but erroneous, it cannot give rise to a juridical relationship between persons. From one human being's erroneous conscience no duty follows for others to act or perform or omit anything. Some might insist that the first two schemata additionally presuppose that the public power lacks any right to prevent human beings in society from acting according to erroneous consciences. Perhaps it does, even though this is not immediately apparent from the text. Even so, the schemata's argument failed to demonstrate why the public power lacks this right.
This being the case, the argument fails to support that immunity upon which our whole inquiry hinges. Hence it is not surprising that the Council's third schema—entitled "corrected text"— abandoned this line of argument that would ground the right to religious freedom in the dictates of conscience. From the third schema down to the promulgation of the Declaration, the foundation for the right to religious freedom is placed in the dignity of the human person. Rightly and wisely.
I shall leave aside the justifying arguments found in the subsequent schemata and come at once to the final, definitive text. The text sets forth two main arguments and, to give completeness to the doctrine, a third additional argument based upon the faith. 5
B. From the Obligation to Search After the Truth
In keeping with the wishes of many council Fathers, the first argument attempts ontologically to ground religious freedom in the fact that all men "are impelled by their nature and are bound besides by a moral obligation to seek the truth, especially truth regarding religion. They are also bound, once they have learned the truth, to adhere to it and to regulate their whole lives according to its demands" (no.2). From this moral obligation the argument next deduces the human right to immunity from external coercion in fulfilling his obligations. The further assertion is made that "the exercise (of this right) cannot be impeded if the just public order is preserved."
Obviously this argument aims to vindicate the whole concept of religious freedom insofar as it imports the double immunity from coercion. What are we to think of this argument?
The argument is valid and on target. Undeniably the demand for freedom has its basis in man's intellectual nature, in the human capacity to seek, to embrace, and to manifest by his way of life the truth to which he is ordered. In no other way can he perform his duty toward truth than by his personal assent and free deliberation. What is more, from this single consideration it is already clear that no one is to be forced to act against his conscience or against the demands of the truth that he has in fact found, or at least thinks that he has found. If so forced, he would be acting against his intellectual nature itself.
Yet we may still ask whether this demand for freedom, which flows from the source just mentioned, has enough power to establish a true right in keeping with which no one is to be impeded from acting according to his conscience in religious matters. Put differently: Are man's natural and moral links to truth powerful enough to engender a political relationship between the human person and the public power so that the latter is duty-bound not to prevent the person from acting according to his conscience—whether the person acts alone or in association with others? It seems not.
Man is certainly impelled by his nature, and is obliged morally, to seek the truth so that he might conform his life to the truth, once found. Yet quite a few, either after searching for religious truth or not searching for it, actually cling to more or less false opinions that they wish to put into practice publicly and to disseminate in society. To highlight again the point upon which our investigation hinges, let us imagine public powers speaking to these erring people as follows:
"We acknowledge and deeply respect the impulse to seek truth implanted in human nature. We acknowledge, too, your moral obligation to conform your life to truth's demands. But, sorry to say, we judge you to be in error. For in the sphere of religion we possess objective truth. More than that, in this society we represent the common good as well as religious truth—in fact religious truth is an integral part of the common good. In your private and in your family life, therefore, you may lawfully act according to your errors. However, we acknowledge no duty on our part to refrain from coercion in your regard when in the public life of society, which is our concern, you set about introducing your false forms of worship or spreading your errors. Continue, then, your search for truth until you find it—we possess it—so that you may be able to act in public in keeping with it."
Is this proclamation imaginary? Hardly! Time and again over the centuries public powers have issued similar statements. And what answer can the poor people make who are thus judged to be living in error? None, certainly, if we stay within the principles laid down in the Declaration's first argument. For we can grant the premiss of those principles: that those in error have an obligation to seek the truth in order to learn it and act in keeping with it. But we deny that from those principles the conclusion follows that those in error have the right not to be impeded from acting in public according to their consciences. It seems correct to deny this conclusion, since it appears to extend beyond its premisses.
Assuredly those judged to be misguided would like to object that the public power has no right to issue judgements about objective truth in the religious sphere, that even less has it the right to transform those judgements into coercive legislation, thereby preventing its citizens from acting according to their consciences. This is as valid an objection as can be. But I ask: Does its validity proceed from the ontological basis of religious freedom as the Declaration claims and conceives that it does? It seems not.
For it may be said, and some at times have so claimed, that the right of civil power to repress false forms of worship or religious errors is compatible with man's moral obligation to seek the truth in order to act according to it. For such repression does not in the least prevent the quest for truth, nor does it prevent acting according to the truth. What it does prevent are public activities that proceed from a basis in error and that thus cause harm to the public good. This opinion is not to be scorned. It has even been widely received at times within the Church itself.
Admittedly it was mainly pastoral considerations that led the Fathers to accept this first argument in the Declaration, the argument that situates the ontological roots of religious freedom in the obligation to seek the truth. Some Fathers feared the establishment of a kind of separation between truth and freedom, or more exactly, a separation between the order of truth and the juridical order that equips man with right against others. Of course this was an entirely legitimate concern. Still, the speculative question remains: Is it correct to place the ontological ground for religious freedom in man's natural and moral relationships to truth? On this point doubt may be allowed.
C. From the Person's Social Nature
The same pastoral uneasiness apparently controls the second major argument in the Declaration. This argument begins with the divine law to which every human being is subject and in which his nature makes him a participant. From this premise the argument at once concludes to man's moral obligation to investigate what the precepts of the divine law might be. The point is made that this investigation ought to be conducted in a social manner. The argument then lays down another moral principle—that man perceives the dictates of the divine law through the mediation of his conscience, which he is therefore always bound to follow. After positing these moral principles, the argument proceeds to a conclusion that is juridical: that not surprisingly man has a right to the two immunities that form the object of the right to religious freedom.
I acknowledge the value of this argument, provided the following distinction is made that always must be made. Indisputably the argument validly shows that no one is to be forced to act against his conscience, for by so acting a person would be doing wrong. But the second question recurs. Does it follow from this argument that no one is to be prevented from acting in public according to his conscience? To establish immunity from this kind of coercion—and this is specific to religious freedom in its modern meaning—the argument appeals to the necessary connection between internal acts of religion and those outward acts by which, in keeping with his social nature, a human being displays his religious convictions in a public way. Given this connection, the argument runs as follows: A purely human power cannot forbid internal acts; it is therefore equally powerless to forbid external acts.
But does not the fallacy of begging the question somehow lurk in this argument? It supposes that in society no power exists with authority reaching far enough to warrant its legitimately forbidding public acts of religion, even acts that transgress objective truth or divine law or even the common good. This must be established; it is the very heart of the matter under discussion. It is not proved by stating that persons are morally obliged to obey divine law as known by them through the mediation of their consciences. Nor is it proved by stating that human nature is social and requires that people profess their religion in a public and communitarian manner.
D. From the Limits of Public Power
Finally, there remains the third argument of the Declaration. It does concern the limits of the public power. This argument is introduced with the word Praeterea ["Furthermore"]. This suggests that the argument is added as a complement to the argument so far presented, a complement to an argument that is presumed in itself sufficient to justify the human right to religious freedom in its double sense.
But if the state of the question about this human right is examined thoroughly, it is at once evident that this political argument is of primary importance. Without it any other argument would not sufficiently settle the question. For the very question concerns the limits of public power in religious matters.
The Declaration makes the felicitous assertion that public power "must be said to exceed its limits if it should presume to direct or to impede religious acts" (n.3). Felicitous, I repeat, and altogether true. But it is a simple assertion for whose truth no reasons are brought forward. May I be permitted, as long as time allows, to develop this political argument. I proceed in outline form, schematically, by enumerating the principles without further development. The intention of the argument I offer is the same as that prefixed to the Declaration: "to develop the teaching of recent Popes about the inviolable rights of the human person and about the juridical ordering of society" (n.1).
The argument begins properly from a first principle: Every human person is endowed with a dignity that surpasses the rest of creatures because the human person is independent [in charge of himself, autonomous]. The primordial demand of that dignity, then, is that man acts by his own counsel and purpose, using and enjoying his freedom, moved, not by external coercion, but internally by the risk of his whole existence. In a word, human dignity consists formally in the person's responsibility for himself and, what is more, for his world. So great is his dignity that not even God can take it away—by taking upon Himself or unto Himself the responsibility for his life and for his fate. This in the Christian tradition, especially from the Greek Fathers on, is the dignity of the person conceived, fashioned in the image of God. The person's intellectual nature is a prior condition, the absence of which would render his assumption of responsibility impossible. Formally, however, human dignity consists in bearing this responsibility.
Now, from the first, ontological principle (the dignity or the human person), there follows a second principle, the social principle, which Pope Pius XII and later John XXIII began to develop somewhat fully. The social principle states that the human person is the subject, foundation, and end of the entire social life. 6
For our purpose, the chief force of the social principle lies in its establishing an indissoluble connection between the moral and the juridical orders. This connection must not be conceived in some abstract manner but in a wholly concrete way. For the connection is the human person itself, really existing, in the presence of its God and Lord, in association with others in this historic world, but in such wise that it transcends by reason of its end both society and the whole world. The human person exists in God's presence as a moral subject bound by duties toward the moral order and toward the historical order of salvation established by Jesus Christ. The human person exists with others in society as a moral-juridical subject furnished with rights that flow directly and altogether from human nature, never to be alienated from that nature. The juridical order cannot be sundered from the moral order, any more than the human person can be halved.
Evidently, in this subordinate place we can and ought to collect and situate those things that the Declaration said so beautifully about the natural human impulse to seek truth and about the person's moral obligation to live according to the truth once found. They do illustrate the first ontological principle and the second social principle. 7
Now, from the first and the second principles, the ontological and the social, taken together, there follows a third principle, the so-called principle of the free society. This principle affirms that man in society must be accorded as much freedom as possible, and that that freedom is not to be restricted unless and insofar as is necessary. By necessary I mean the restraint needed to preserve society's very existence or—to use the concept and terms of the Declaration itself—necessary for preserving the public order in its juridical, political, and moral aspects
Parallel with the third principle, a fourth issues from taking the first two, the ontological and the social, together. This principle is juridical and maintains that all citizens enjoy juridical equality in society. 8 This principle rests upon the truth that all persons are peers in natural dignity and that every human being is equally the subject, foundation, and end of human society.
Finally, there follows a fifth principle, the political principle. It is admirably expressed in the following words of Pius XII, later quoted by John XXIII. "To protect the inviolable rights proper to human beings and to ensure that everyone may discharge his duties with greater facility—this is the paramount duty of every public power." 9 This constitutes for the public power its first and principal concern for the common good—the effective protection of the human person and its dignity. This definition of the paramount function of public power rests clearly upon the first four principles.
Further, all five principles cohere with one another in such a way that they form a kind of vision of the human person in society and of society itself, of the juridical ordering of society and of the common good considered in its most fundamental dimensions, and finally of the duties of the public power toward persons and society. Upon this vision, which recent pontiffs have newly elaborated while working within the tradition, rests the whole doctrine of the Vatican Declaration on Religious Freedom. In other words, the five principles just enumerated taken together finally bring our whole investigation to a point of decision. For they are sufficient to constitute that relationship between the human person and the public juridical power. Together they fully characterize the notion of religious freedom.
They are also sufficient to confirm the other human and civil freedoms with which John XXIII dealt in an eminent manner in his Encyclical Pacem in Terris . Along with these freedoms religious freedom constitutes an order of freedoms in society. Religious freedom cannot be discussed apart from discussion of this whole body of freedoms. All human freedoms stand or fall together—a fact that secular experience has made clear enough.
This said, it is not difficult to construct an argument for the human right to religious freedom.
III. A needed Argument
The first thing to note is that the dignity and the freedom of the human person should receive primary attention since they pertain to the goods that are proper to the human spirit. As for these goods, the first of which is the good of religion, the most important and urgent demand is for freedom. For human dignity demands that in making this fundamental religious option and in carrying it out through every type of religious action, whether private or public, in all these aspects a person should act by his own deliberation and purpose, enjoying immunity from all external coercion so that in the presence of God he takes responsibility on himself alone for his religious decisions and acts. This demand of both freedom and responsibility is the ultimate ontological ground of religious freedom as it is likewise the ground of the other human freedoms.
Now, this demand is grounded upon the very existence of the human person, or, if one prefers, in the objective truth about the human person. Therefore it is revealed as a juridical value in society, so that it can impose upon the public power the duty to refrain from keeping the human person from acting in religious matters according to his dignity. For the public power is bound to acknowledge and to fulfill this duty by reason of its principal function, the protection of the dignity of the person. Once this duty is demonstrated and acknowledged, the immunity from coercion in religious matters demanded by human dignity becomes actually the object of a right. For the juridical actuality of a right is established wherever a corresponding duty is established and is acknowledged, once the validity of the ground for a right is assured and recognized.
Furthermore, the above mentioned principle of a free society—taken together with the principle of the juridical equality of all citizens—likewise sets the outer limits on just how far the public power must refrain from preventing someone from acting according to his conscience. The free exercise of religion in society ought not be restricted save insofar as it is necessary, that is, save when a public act ceases to be an exercise of religion because proven to be a crime against public order.
The following considerations will clarify this. The foundation of human society lies in the truth about the human person, or in its dignity, that is, in its demand for responsible freedom. That which in justice is preeminently owed to the person is freedom—as much freedom as possible—in order that society thus may be born toward its goals, which are those of the human person itself, by the strength and energies of persons in society bound together with one another by love. Truth and justice, therefore, and love itself demand that the practice of freedom in society be kept vigorous, especially with respect to the goods belonging to the human spirit and so much the more with respect to religion. Now this demand for freedom, following as it does from the objective truth of the person in society and from justice itself, naturally engenders the juridical relationship between the person and the public power. The public power is duty-bound to acknowledge the truth about the person, to protect and advance the person, and to render the justice owed the person.
Again, from this follows the conclusion that no one is to be prevented in the matter of religion from acting according to the demands of his dignity or according to his inmost religious convictions. Nor does this immunity cease except where just demands of public order are proven to have the urgency of a higher force.
Quod erat demonstandum. Or rather, this argument from the five principles mentioned is sufficient; nothing else is required.
IV. The Question of a Theological Argument
Of course there remains the argument for religious freedom as drawn from Christian revelation, but this is a lengthy question and my discussion has already been too long.
Suffice it to say that the line of argument that the Declaration follows is entirely valid and sound. It embraces three major statements. (1) The human person's right to religious freedom cannot itself be proven from Holy Scripture, nor from Christian revelation. (2) Yet the foundation of this right, the dignity of the human person, has ampler and more brilliant confirmation in Holy Scripture than can be drawn from human reason alone. (3) By a long historical evolution society has finally reached the notion of religious freedom as a human right. And a foundation and moving force of this ethical and political development has been Christian doctrine itself—I use "Christian" in its proper sense—on the subject of human dignity, doctrine illuminated by the example of the Lord Jesus.
Difficult and important questions remain. The primary one concerns the relationship between the Christian freedom proclaimed in Holy Scripture, especially by St. Paul, and the religious freedom we have been speaking of, to which our contemporaries lay claim. 10 On this question no consensus exists. According to some, these two freedoms are so different from their inception that only a limited harmony can exist between them. According to others, of whom I am one, in the very notion of Christian and gospel freedom—or, better—in free Christian existence itself—a demand is given for religious freedom in society. To demonstrate this is no mean task. Add to this the difficult historical question, as yet not investigated: Why has humanity had to travel so long a journey on so tortuous a course to reach at last a consciousness of its dignity and to bring to fulfillment in civil society all that that dignity demands?
Evidently these question belong to the ecumenical order. Equally evident and pressing is the need for us to enter into conversation with our separated brothers and even with our non-believing brothers. These have contributed much and still contribute toward the establishment and preservation in society of the full practice of freedom, including also religious freedom.
( 1 )This was delivered as a talk on September 19, 1966 and published in Latin as "De argumentis pro iure hominis ad libertatem religiosam." In Acta Congressus Internationalis de Theologia Concilii Vaticani II , edited by A. Schoenmetzer, 562-73. Rom, Vatikan, 1968.
( 2 )i.e., that it is not simply based in expediency—Ed.
( 3 )"The whole world concurs in this judgement," probably an allusion to Augustine, Contra ep. Parm., II, 10, 20. Parts of this argument find a parallel in 1966b: "The Declaration on Religious Freedom." In Vatican II: An Interfaith Appraisal , edited by John H. Miller, article, pp. 565-76, and discussion, pp. 577-85 (Notre Dame: Association Press, 1966). Certain points, such as the international political and ecclesiological support given to religious freedom, are more fully spelled out in that latter article—Ed.
( 4 )For a discussion of the various texts that preceded Dignitatis, the introduction to "The Problem" in this volume. By Murray's count there were five such texts, the third and fourth were of Murray's creation—Ed.
( 5 )The remainder of the article presents actually three philosophical arguments and a fourth based on faith. As we will see, Murray was unhappy with the first two "main arguments." (They both suggest an individualism (that often cloaks itself in abstraction) and an a-historicity that he found in the "conscience" argument.) He will here present a third argument that he considers core to the church's affirmation and to contemporary affirmations of human dignity. This third line had been primary in the third and fourth drafts of the Declaration (the ones Murray wrote), and had been reduced to an ancillary position in subsequent drafts and in the final document.
Since Murray's own numbering is off, I felt free, by way of headings, to grant to the "conscience" argument the status of first in a line of arguments. In fact, the language of the "rights of conscience" argument was not limited to the first two drafts. There remains some residual "rights of conscience" terminology in the Declaration, a fact used by some who want to argue that the Council did not advance beyond the "conscience" argument—Ed.
( 6 )Cf. Pius XII, Nunt. radioph. 24 dec. 1944, in: A.A.S. 37 (1945) p. 12; Ioannes XXIII Litt. enc. " Pacem in terris , in A.A.S. 55 (1963) p. 263; Dz.-S 3968.
( 7 )By situating the drive for truth within the second, social pole of the human person, Murray apparently thinks that he has escaped the individualism and abstraction of the Declaration's main argument. Within that second pole, the argument must take account of the structures and forces that are active within historical societies as well as of the transcendental openness of the human person.—Ed.
( 8 )Just as the first two principles call up the individual/social aspects of human nature, similarly for Murray these third and fourth principles have individual/social references. The third points to the creative powers of persons and subgroups in society, while the fourth focuses on the largest social reality, the state. Murray has attempted to highlight the intrinsic social aspects of the human person throughout the various levels of this argument—Ed.
( 9 )Pius XII, Nunt. radioph . 1 iun. 1941, in: A.A.S. 33 (1941)p. 200; Ioannes XXIII "Pacem in terris." ed. cit., p. 274; Dz-S 3985.
( 10 )Elsewhere Murray spelled out a broader list of freedoms that must be reconciled:
The Declaration therefore does not undertake to present a full and complete theology of freedom. This would have been a far more ambitious task. It would have been necessary, I think, to develop four major themes: (1) the concept of Christian freedom—the freedom of the People of God—as a participation in the freedom of the Holy Spirit, the principal agent in the history of salvation, by whom the children of God are "led" (Rom. 8, 14) to the Father through the incarnate Son; (2) the concept of the freedom of the Church in her ministry, as a participation in the freedom of Christ himself, to whom all authority in heaven and on earth was given and who is present in his Church to the end of time (cf. Matt. 28, 18. 20); (3) the concept of Christian faith as man's free response to the divine call issued, on the Father's eternal and gracious initiative, through Christ, and heard by man in his heart where the Spirit speaks what he has himself heard (cf. John 16, 13-15); (4) the juridical concept of religious freedom as a human and civil right, founded on the native dignity of the human person who is made in the image of God and therefore enjoys, as his birthright, a participation in the freedom of God himself.
This would have been, I think, a far more satisfactory method of procedure, from the theological point of view. In particular, it would have been in conformity with the disposition of theologians today to view issues of natural law within the concrete context of the present historico-existential order of grace. Moreover, the doctrine presented would have been much richer in content (1966c: "The Declaration on Religious Freedom," p. 4)—Ed.
REVIEW CONTENTS
Why protect religious freedom.
Why Tolerate Religion?
BY BRIAN LEITER
PRINCETON, NJ: PRINCETON UNIVERSITY PRESS, 2012, PP. 208. $24.95.
author . Richard and Frances Mallery Professor and Director of the Constitutional Law Center, Stanford Law School; Senior Fellow, Hoover Institution. The author wishes to thank William Baude, Nathan Chapman, Richard Epstein, Chad Flanders, Robert George, Luke Goodrich, Paul Harold, Joshua Hawley, Steffen Johnson, Burt Neuborne, Eric Rassbach, James Sonne, and Eugene Volokh for helpful comments on an earlier draft, and Spencer Churchill and Mark Storslee for invaluable research assistance.
Introduction
Religious beliefs have always generated controversy. But religious freedom —the right of individuals and groups to form their own religious beliefs and to practice them to the extent consistent with the rights of others and with fundamental requirements of public order and the common good—has long been a bedrock value in the United States and other liberal nations. Religious freedom is one thing nearly all Americans, left and right, religious and secular, have been able to agree upon, perhaps because it protects all of us. 1 Atheists are protected from imposition of prayer and Bible reading in state schools; 2 churches are protected from interference with the hiring of ministers; 3 religious minorities are protected from majoritarian legislation indifferent or hostile to their concerns. 4 Progressive churches are protected when they oppose segregation or counsel draft resisters; 5 traditionalist churches are protected when they oppose abortion or operate faith-based schools; 6 nontraditional faith groups with unfamiliar worship practices are allowed to carry them out in peace. 7 Because none of us can predict who will hold political power, all of us can sleep more soundly if we know that our religious freedom does not depend on election returns.
When the Supreme Court narrowed its interpretation of the Free Exercise Clause in 1990, in the so-called “ P eyote Case ,” Employment Division v. Smith , 8 Congress passed the corrective Religious Freedom Restoration Act (RFRA) 9 by unanimous vote in the House and a margin of 97-3 in the Senate. 10 Supporters included the ACLU, the National Association of Evangelicals, People for the American Way, the American Jewish Congress, the Christian Legal Society, and virtually every other religious and civil liberties group. 11 Recently, however, this consensus seems to be weakening—largely from fallout over culture-war issues such as abortion and the legal recognition of same-sex relationships. Many activists on these issues see religion as antagonistic to their interests, and are responding in kind. A new whiff of intolerance is in the air. 12
University of Chicago law professor and legal philosopher Brian Leiter has entered the debate with his new book Why Tolerate Religion? 13 His answer? Although we should not persecute religious believers, religion as such does not warrant any “special” legal solicitude such as that provided by the Religion Clauses of the First Amendment. 14 “[T]here is no apparent moral reason why states should carve out special protections that encourage individuals to structure their lives around categorical demands that are insulated from the standards of evidence and reasoning we everywhere else expect to constitute constraints on judgment and action.” 15 Leiter argues, moreover, that it would be consistent with “principled toleration” for the secular state to affirmatively discriminate against religious believers in access to public spaces, such as by barring student Bible clubs from meeting on public school property, even when every other form of student organization is free to meet. 16 So long as religious believers retain the right to express their own beliefs (including wearing religious symbols and clothing), the regime may advocate a “Vision of the Good” that is “irreligious” 17 and may selectively deny religious believers and religious speakers equal access to public resources and opportunities.
When it comes to accommodation of practices , and not just beliefs, Leiter argues that it would be impractical to accommodate all claims of conscience and “unfair” and “arbitrar[y]” to single out claims that are grounded in religious belief. 18 So his answer: accommodate none of them, at least if the accommodation would inflict harm or shift burdens onto third parties. Exactly what is meant by these assertions, as we shall see, is less than clear. The argument depends on terms like “conscience,” “special,” and “harm,” but the book provides no precise definition of their meanings. The author is vague about what to do when accommodations do not cause harm and when religious practices have no secular analogue.
Organizationally, the book weds four chapters of ambitious and wide-ranging philosophical arguments to a fifth and final chapter primarily addressing two controversial issues of First Amendment law: whether religious practices are entitled to exemptions from formally neutral laws (to which Leiter answers “no”), and whether groups may be excluded from otherwise open public school speech forums because they espouse a religious point of view (to which he answers “yes”).
The first major argument of the book—spread between Chapters One and Four—is that discussions of religious freedom ought to be framed around the concept of “toleration.” By “toleration,” Leiter means protection from coercion (or “eradication”) but something less than neutrality. To be specific, the state may not “jail or annihilate the adherents of the disfavored claims of conscience,” nor may it “directly target or coercively burden their claims of conscience” (absent real harm), 19 but it may use public resources and publicly controlled institutions to espouse the state’s own contrary “religious or irreligious” Vision of the Good 20 and may exclude dissenters from equal access to public facilities. 21 The second philosophical argument—Chapters Two and Three of the book—presents a definition of religion and discusses several prominent justifications for toleration, concluding that none of these theories can justify a special protection for the free exercise of religion, beyond that accorded conduct based on nonreligious beliefs. 22 In these chapters, Leiter’s argument consists of two steps. First, he offers a definition of religion as “categorical demands that are insulated from evidence” 23 —meaning that religion is a phenomenon characterized by insulation from “common sense and the sciences.” 24 Second, he examines several prominent justifications for toleration offered by John Rawls, John Stuart Mill, and Frederick Schauer, and in each case concludes that nothing in these justifications warrants tolerating religion specifically.
More surprisingly, in Chapter Five Leiter concludes that this spare doctrine of “principled toleration” also does not justify any special protection against the establishment of religion. As far as “principled toleration” goes, it would be unobjectionable to declare the Roman Catholic Church the established church of the nation, and favor it over all other ideological competitors—so long as dissenting voices are not coercively burdened or silenced. It becomes clear that Leiter’s objection is not to one particular theory of free exercise protections (free exercise exemptions), but to the entire idea of special protection for religious freedom.
At a few extraordinary moments in the book, it appears that the author might even opt for intolerance toward religion—use of the coercive power of the state to discourage or even “eradicate” religious belief, 25 on the ground that religious beliefs do real harm to the body politic. Each time, after floating the argument for intolerance, usually in the form of rhetorical questions rather than straightforward claims, he retreats. But each time the retreat is based on the lack of sufficient empirical support for the net harmfulness of religion—not because of the importance of religious freedom to the individual or to liberal democracy. At page 59, for example, he poses the question: “isn’t there reason to worry that religious beliefs, as against other matters of conscience, are far more likely to cause harms and infringe on liberty?,” 26 observing that this might “form the basis of an argument for why there are special reasons not to tolerate religion.” 27 He follows this suggestion with the tentative disavowal that “I wonder” whether “such a demeaning conclusion about religious belief . . . is warranted,” 28 leaving the reader to suspect that his support for toleration hangs on the thread of empirical uncertainty.
And consider this paragraph:
[R]eligious believers overwhelmingly supported George W. Bush, widely considered one of the worst presidents in the history of the United States, whom many think ought to be held morally culpable both for the illegal war of aggression against Iraq as well as the casualties resulting from domestic mismanagement. Of course, if we really thought there were some connection between religious belief and support for the likes of Bush, then even toleration would not be a reasonable moral attitude to adopt toward religion: after all, practices of toleration are, themselves, answerable to the Millian Harm Principle, and there would be no reason ex ante to think that Bush’s human carnage is something one should tolerate. 29
If I understand this passage correctly, Leiter is flirting with the idea that it would be justifiable to withhold toleration from religious believers because they have a propensity to support political candidates of whom he disapproves. If that is his notion of “Millian Harm,” sufficient to justify official intolerance toward American religious believers, we are very far from anything recognizable as liberalism or democracy.
Ultimately, Leiter concludes that this “Bush carnage” argument for intolerance is “not warranted,” but not because of any principled commitment to democracy or respect for differing opinion. It is unwarranted because “there is no reason to think” that religious beliefs “are especially likely to issue in ‘harm’ to others.” 30 Religion has done good as well as evil, he notes, 31 and not all evil is caused by religion. 32 Nonetheless, he finds it to be a close question. “Perhaps [religious] beliefs . . . are more harmful, on average, but it seems to me much more empirical evidence would actually be required to support that conclusion.” 33 One wishes that the argument for toleration were more robust than that.
Aside from these disquieting passages, the argument of the book rests not on the claim that religious belief is specially harmful, but on the more conventional claim that religion is nothing special. 34 Let us turn to those arguments.
I. “toleration”
The title of the book, Why Tolerate Religion? , at first blush sounds anachronistic. The value of religious toleration has not been seriously contested in the Anglo-American world since the seventeenth century. Strictly speaking, the “toleration” issue arose in the context of an established church; the question was whether practitioners of dissenting religions should be permitted to exercise their faiths without penalty. Britain’s celebrated Act of Toleration of 1689, for example, allowed certain sects—dissenting trinitarian Protestants, but not Jews, Roman Catholics, or Unitarians—to conduct worship services without being punished for violation of the Uniformity Acts. 35
By the time of the American founding, prevailing opinion had moved beyond toleration. When George Mason proposed in 1776 that the Virginia Declaration of Rights provide for “toleration” of religion, James Madison objected on the ground that “toleration” implies an act of legislative grace. He successfully moved to substitute the term “the full and free exercise of [religion.]” 36 In a similar vein, George Washington wrote to the Hebrew Congregation of Newport, Rhode Island that “[i]t is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.” 37 It is not an accident that the United States Constitution contains a Free Exercise Clause, not a toleration clause.
But Leiter is not using the word carelessly or anachronistically. He makes clear that by “toleration” he means pretty much what Madison and Washington understood the term to mean—forbearance—with only a slight twist: that the state that today is considering whether to permit the practice of religion is the modern secular state. “[A] genuine ‘principle of toleration,’” Leiter writes, exists only when there is a “dominant group” that “actively disapproves of what another group . . . believes or does.” 38 Under his definition of toleration, “one group must deem another differing group’s beliefs or practices ‘wrong, mistaken, or undesirable’ and yet ‘put up’ with them nonetheless.” 39 Leiter candidly “reject[s] the view” that “the right posture for the modern state is one of neutrality” toward religion. Rather, the posture of the modern secular state toward religion should be one of “disapproval” 40 —the only question being whether that disapproval should be tempered with toleration. 41
To Leiter, the “contemporary problem, at least in post-Enlightenment, secular nations,” is “why the state should tolerate religion as such at all.” 42 Just as the seventeenth-century state, committed to an established church, had to decide whether to tolerate persons of dissenting faiths, the twenty-first-century state, committed to a particular form of secularism, has to decide whether to tolerate religious believers at all. Some might say, following the seventeenth-century philosopher John Locke, that it is futile to attempt to use force to compel belief (or unbelief), because convictions do not yield to external compulsion. 43 But Leiter—probably correctly—points out that the modern state in fact has “sophisticated means to effectively coerce belief.” 44 The proper question, therefore, is why “we”—meaning the secular state—“morally, ought not to eradicate differing beliefs and practices,” given that we could. 45
Leiter claims that “toleration,” understood as putting up with beliefs that the dominant group disapproves of, is “reflected” in the First Amendment of the United States Constitution, and is the “paradigm of the liberal ideal.” 46 But this is incorrect: under the United States Constitution, the state does not deem religious belief “wrong, mistaken, or undesirable.” 47 On the contrary, our liberal republic takes no stand on the truth or worth of any religious belief as such. 48 One of the most widely admired opinions of the Supreme Court states that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in . . . religion, or other matters of opinion.” 49 That proscription of official orthodoxy applies to Leiter’s unbelief no less than it does to a conventionally religious establishment. It is no more proper for the state to assume religion is false or unwarranted than to assume that it is true. As James Madison put it, “[t]he Religion . . . of every man must be left to the conviction and conscience of every man,” and it is an “arrogant pretension” to believe that “the Civil Magistrate is a competent Judge of Religious Truth.” 50 Indeed, many statesmen at the time of the Founding believed that religious faith was valuable or even essential to republican self-government. 51 I am not aware of any statement by a constitutional founder, any decision of the Supreme Court, or any important document in our constitutional tradition that espouses Leiter’s version of toleration: that religion is wrong, mistaken, or undesirable, but we should nonetheless “put up” with it.
Leiter acknowledges there is a competing view to his idea that mere toleration ought to characterize our attitude toward religion. Chapter Four of the book is devoted to explaining why he rejects Professor Martha Nussbaum’s argument that free exercise exemptions are justified by “respect” for the religious beliefs of others, even if we do not share them. 52 While the author states elsewhere that his concern is “ state toleration” of religion, “as opposed to toleration in interpersonal relations,” 53 much of the chapter is propelled by examples of interpersonal relations. The primary argument—spanning seven pages of the twenty-three page chapter—revolves around whether an atheist invited to shabbat dinner should participate in Jewish prayers offered by his host. 54 The problem, you see, is that the guest believes that religion is an “(epistemically) culpable false belief,” and therefore is reluctant to show the “respect” to his hosts’ beliefs that participation in the prayers would express. 55 That is all well and good. Maybe a guest with those views should politely excuse himself. But what could this possibly have to do with “ state toleration”? Leiter argues by way of analogy that because religious beliefs are false or unwarranted, they are “not the kind of belief system that could warrant [affirmative respect],” 56 and thus that the state—like the dinner guest—ought rightly to grant religion only toleration. But the state is not in the same position as the guest. The guest, like his host, enjoys full religious freedom to form his beliefs and to act on them. The question he faces is primarily one of etiquette . The state, by contrast, does not hold an official position on whether the Jewish religion, or any other, is false—“culpably” or otherwise. The dichotomy between “tolerating” and “respecting” religion based on individual judgments about religion’s truth or falsity is a red herring when it comes to questions of governance. Constitutional law is not about good manners or respect, but about law, power, coercion, and freedom.
The difference between moral demands on individuals and institutional constraints on the liberal state is fundamental. In the liberal tradition, the government’s role is not to make theological judgments but to protect the right of the people to pursue their own understanding of the truth, within the limits of the common good. That is the difference between “the full and free exercise of religion” 57 (Madison’s formulation) and mere “toleration.” Toleration presupposes a “dominant group” 58 with a particular opinion about religion (that it is “false,” or at least “unwarranted”), 59 who decide not to “eradicate” 60 beliefs they regard as “wrong, mistaken, or undesirable.” 61
By contrast to Leiter’s “toleration,” religious freedom does not proceed from any official presuppositions about religious truth. It allows everyone, believers and unbelievers alike, the right to form their own convictions about transcendent reality and to live in accordance with them, subject only to the constraint that they must not invade the rights of others or damage fundamental aspects of the overall common good. That is a more attractive vision than Leiter’s, and it is far more consonant with our constitutional principles (even if not always with our practices).
II. the philosophical argument
Leiter’s philosophical argument can be stated in three steps:
1. Religion is a subset of the broader category, “conscience.”
2. What sets religion apart as a distinctive subset of conscience is that religious beliefs “are insulated from ordinary standards of evidence and rational justification,” yet lead to “categorical demands on action” (meaning demands that take precedence over competing desires and interests). 62
3. Employing this definition, neither of the two major strands of modern thought, Kantianism (represented by John Rawls) and utilitarianism (represented by John Stuart Mill), supports an argument for special protection for religion. Nor is it supported by Frederick Schauer’s argument from government incompetence.
The argument, however, is not persuasive, for two reasons. First, it depends entirely on the pejorative way in which Leiter defines religion, and second, it falls short in its understanding of Rawls, Mill, and Schauer.
A. Religion as a Subset of Conscience
The central argument in the book is that “if there is something morally important about religious belief and practice that demands legal solicitude, it is connected to the demands of conscience that religion imposes upon believers,” rather than the distinctively religious or “sacred” character of those beliefs. 63 The book is an inquiry into whether there is any reason to single out religious conscience for legal protections that are not also extended to nonreligious claims of conscience.
It would therefore seem essential to unpack what is meant by claims of “conscience” as well as what is meant by “religion.” But while the book devotes an entire chapter to a formal definition of “religion,” it provides no definition of “conscience.” I believe, however, that it would be fair to borrow the first portion of Leiter’s definition of “religion” as a definition of “conscience”: a belief system that imposes “categorical demands on action—that is, demands that must be satisfied no matter what an individual’s antecedent desires and no matter what incentives or disincentives the world offers up.” 64 Leiter comments that the “categoricity” of commands is a “significant feature” not only of religion, but “of all claims of conscience,” 65 and that seems right. In less jargony language, we may translate this “categoricity” as referring to the demands of right and wrong, as opposed to self-interest, whim, habit, or compulsion. 66 The important point is that the demands of right and wrong may arise from nonreligious as well as religious systems of belief—although, as Leiter points out, “religion is one of the few systems of belief that gives effect to this categoricity.” According to Leiter, “those who genuinely conduct their lives in accord with the categoricity of the moral demands they recognize are overwhelmingly religious.” 67
Leiter defines religion by four criteria, only two of which he says “matter” for the purpose of evaluating the claim for tolerating religion as such. 68 The first is “categoricity,” as just discussed. The second is that religious beliefs, “in virtue of being based on ‘faith,’ are insulated from ordinary standards of evidence and rational justification, the ones we employ in both common sense and in science.” 69 The combination of these two criteria becomes his catch phrase for religion: “categorical demands on action conjoined with insulation from evidence,” or variants on these words. 70
Leiter mentions two candidates for further refining the definition of religion: that religion involves “a metaphysics of ultimate reality,” 71 and that it offers “existential consolation” for dealing with “the basic existential facts about human life, such as suffering and death.” 72 Ultimately, he declines to include these two other elements in his formal definition. The former, he says, is just “a variation on the idea that religious belief is insulated from evidence,” 73 and the latter, he says, is not distinctive to religion, but may be found in such nonreligious practices as philosophical reflection, meditation, and therapeutic treatment. 74 Thus, “only the first two features [categoricity and insulation from evidence] . . . matter” for these purposes. 75 At times, though, Leiter includes “existential consolation” as one of the distinctive features of religion, with the practical effect of “excluding the case of Maoist personality cults, of Marxism, and (probably) of morality.” 76
It is difficult to follow Leiter’s method here. At the outset, he asserts that a proper definition must be based on “features that all and only religious beliefs have.” 77 But elsewhere, Leiter notes that neither “categoricity” 78 nor “insulation from evidence” 79 is unique to religion, yet for unexplained reasons these features nonetheless do “matter.” This is all rather confusing and inconsistent. Personally, I think it is futile to draw up a list of features descriptive of religion and only of religion. What makes religion distinctive is its unique combination of features, as well as the place it holds in real human lives and human history.
Leiter assumes that religion is merely a subset of conscience, distinguished primarily by its lack of evidentiary warrant. It would be more precise to see religion and conscience as two overlapping categories, neither fully subsumed within the other. Conscience has to do with convictions about moral right and wrong. Some conscientious convictions have a religious foundation and some do not. Religion is partly about right and wrong, and in that sense overlaps with conscience. But it involves much more than that. Religion typically includes a set of beliefs about the nature of the universe, it prescribes practices that are sometimes more ritualistic than ethical in character (such as taking communion or wearing a yarmulke), and it is embedded in authoritative communities involving texts, stories, institutions, leaders, and tradition. It thus involves much more than conscience, just as conscience comprises more than religion. 80 This is important because much litigation involves religious ritual, ecclesiastical form, and tradition that are not strictly matters of “conscience” and have no evident secular analogue.
There are claims of nonreligious conscience that are powerful and coherent enough that they have a moral weight comparable to that of religion. During the Vietnam War, the Supreme Court decided two cases involving conscientious objectors whose beliefs, by their own admission, were not “religious” in the ordinary sense (the sense that Congress used in the conscientious objector statute recognizing exemptions from conscription). The Court’s response was to stretch the definition of religion to include any “sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption.” 81 Similarly, in particular contexts of obvious seriousness, such as protecting medical personnel from being required to perform or assist in abortions, Congress has protected “moral convictions” as well as “religious beliefs.” 82
Leiter, however, does not confine the term “conscience” to claims of this serious nature. As his paradigmatic example of nonreligious conscience, Leiter refers to claims based on family tradition and identity, 83 which we will discuss in more detail below. He also includes the “lone eccentric, who for reasons known only to him, feels a categorical compulsion,” 84 and the Marxist. 85 The category is evidently open-ended. If any belief comprising a moral judgment is “conscience,” we would face some wildly counterintuitive claims.
As Leiter points out, “[i]t seems unlikely that any legal system will embrace this capacious approach to liberty of conscience” because it would be tantamount to a “legalization of anarchy!” 86 In other words, we do not extend protection to all manifestations of conscience, broadly understood, because we cannot and should not. Accordingly, the United States Constitution provides no protection for liberty of “conscience” as such—although particular manifestations of conscience sometimes receive constitutional protection under other rubrics (freedom of speech, freedom of religion, due process). In fact, although Leiter does not mention it, the drafters of the First Amendment considered using the language of “conscience,” voted it down, and used the term “religion” instead. 87 Leiter thinks that was an error. He argues that “conscience” is the morally relevant concept, and it was wrong to single out the religious subset for legal protection.
B. “Insulation from Evidence”
If “categoricity” is the element common to both religious and nonreligious systems of belief making demands on human conduct, it is the “insulation from evidence” that most clearly distinguishes religion in Leiter’s definition, and does almost all the work in his analysis. By smuggling into the definition of religion a feature that makes religious belief seem unreasonable, the book unsurprisingly comes to the conclusion that this very unreasonableness disqualifies religion from a moral claim to special legal solicitude. The conclusion is baked into the premise.
Most obviously, Leiter’s definition stacks the deck by assuming that religious belief “always” is to some degree “false, or at least unwarranted.” 88 That is a sectarian premise, predicated on a questionable view about evidence. 89 According to Leiter, the “only epistemically relevant considerations” that warrant belief are “those that figure in common sense and the sciences.” 90 He goes so far as to say that philosophic attempts to justify religious beliefs are “nothing more than an effort to insulate religious belief from ordinary standards of reasons and evidence in common sense and the sciences, and thus religious belief is a culpable form of unwarranted belief given those ordinary epistemic standards.” 91
No religious believer would recognize this description. Religious believers do not think they are “insulating” themselves from all the relevant “evidence.” They think they are considering evidence of a different, nonmaterial sort, in addition to the evidence of science, history, and the senses. It would be more accurate, and less loaded, to amend this second part of Leiter’s definition to say that religion is a system of belief in which significant aspects are not based on science or common sense observations about the material world .
To begin with, much religious thought is not “insulated” at all. Developments in biology, physics, linguistics, archeology, and other disciplines have had profound impact on Biblical hermeneutics and theology in mainstream Protestantism and Roman Catholicism, 92 and “practical reason” has played a major role in natural law thinking since at least Thomas Aquinas. 93 To be sure, some religious traditions are more insulated from scientific developments than others. The Navajo creation story, for example, is impervious to archeological and linguistic evidence that the tribe migrated to the Southwest from Canada only a few centuries before the arrival of Europeans, and fundamentalist Christian belief in the historicity of Noah’s flood and the literal six-day creation, depending on how these ideas are understood, is much the same. But to say that “insulation from evidence” is a defining characteristic of “all” 94 (or even most) religions is simply false. Religion is constantly changing, and constantly interacting with the culture and other ways of understanding the world.
More importantly, the standards established by the scientific revolution, however powerful within their proper domain, are not obviously applicable to such matters as esthetics, morality, values, love, trust, and ultimate meaning. The scientific method does not claim to provide insight into these areas of human understanding. Indeed, some philosophers of science maintain that even science depends on certain leaps of faith, which are not the products of mere observation of material evidence. 95
In a footnote, Leiter acknowledges that “of course” there may be matters such as the “meaning of life” that “are insulated from evidence only in the sense that no scientific evidence would seem to bear on them.” 96 But he immediately dismisses the importance of this observation on the ground that “[s]uch beliefs are not my concern here, mainly because they are not distinctive to religion.” 97 What could he be thinking? His entire argument is built around the idea that religion is “a culpable form of unwarranted belief” precisely because of its “insulation from evidence.” 98 If it turns out that religion’s “insulation from evidence” is attributable to the fact that “no scientific evidence bears” on many questions of a religious nature, then religious belief cannot be criticized on these grounds. There is no reason to apply the “ordinary epistemic standards” of science and material observation to questions on which they do not bear. If Leiter is confining his “concern” to beliefs on which “scientific evidence would seem to bear,” he is leaving out most of what is central to religion, including beliefs underlying almost all claims of religious conscience, which are the subject of this book.
Leiter is entitled to confine himself to whatever categories of evidence may strike him as persuasive, but he cannot reasonably label as “culpable” or “unwarranted” the sincere conclusion of many persons, including thinkers of the first rank, that there are nonmaterial aspects of reality supporting religious belief. Leiter can no more disprove the existence of nonmaterial reality than religious believers can prove the existence of God on the basis of material evidence alone. A color-blind person might think the idea of color is bunk, because the evidence of his own eyes fails to reveal it, but that does not entitle him to assume that those who see color are engaged in a culpable form of unwarranted belief. He, not they, might be the one lacking.
As individuals, we might be justified in dismissing the idiosyncratic beliefs of small numbers of persons, especially when these people do not appear rational in other respects. But religious belief has been attested to by millions of seemingly intelligent and rational people over long periods of time, who report that they have experienced, in some way, transcendent reality. There is even, as Leiter admits, a “large literature in Anglophone philosophy devoted to defending the rationality of religious belief.” 99 Leiter chooses to disregard this testimonial evidence, along with its philosophical defense, without so much as “address[ing] . . . in any detail”—really, at all—the arguments that are offered. 100 Why? The only reason he supplies is that the “dominant sentiment among other philosophers” is that belief in God is “unsupported by reasons and evidence.” 101 With all respect, there is no reason to think that members of modern philosophy faculties have any special insights about God. But as we shall see, if you take away Leiter’s conceit that religious believers are culpably insulating themselves from evidence (as opposed to responding to a different kind of evidence), most of Leiter’s conclusions fall of their own weight.
Indeed, even for those who agree with Leiter as a matter of personal conviction that there is no persuasive evidence supporting the truth of religious belief, but agree with Madison and Washington that the truth of religion is not a subject on which the government should take a stand, Leiter’s conclusions do not follow, because they rest on the view that the state should treat religious beliefs and arguments as lacking evidentiary warrant. It is better to proceed on the premise that people may reasonably disagree about the truth or falsehood of religious claims.
Having offered a definition of religion, the next step in Leiter’s argument involves asking whether unique toleration for religion can be justified by several prominent arguments for toleration. Turning first to the Kantian (or better, “neo-Kantian”) argument, Leiter adverts to John Rawls’s well-known thought experiment in which we choose fundamental principles of justice under which we should be governed as if from behind a veil of ignorance—meaning we do not know what our circumstances (including our moral and religious views) will be, or whether we will be in the majority or minority. 102 Rawls concludes that while behind the veil we would choose to protect an equal liberty of conscience. We would not “take chances with [our] liberty,” because the value of being able to form and follow our own moral and religious beliefs outweighs any gain we might achieve from the possibility of being in a majority and imposing our views on others. 103 This supports legal protection for freedom of conscience.
In a revealing aside, Leiter questions whether Rawls is correct that people really are better off when “they can freely choose what to believe and how to live.” 104 He suggests that “many, perhaps even most” people “make foolish choices about what to believe and how to live,” with the result that they make themselves “miserable.” 105 Indeed, these people may “perhaps” not “make real choices at all,” but instead they may be “hostage to social and economic milieux,” which produce only the “ illusion of choice.” 106
This line of reasoning is ironically reminiscent of the seventeenth-century Puritan preacher John Cotton, an opponent of religious toleration in his day. Cotton argued that the
[f]undamentals are so clear, that a man cannot but be convinced in Conscience of the Truth of them after two or three Admonitions: and that therefore such a Person as still continueth obstinate, is condemned of himself: and if he then be punished, He is not punished for his Conscience, but for sinning against his own Conscience. 107
Cotton, like Leiter, thinks that those who disagree with him on the fundamentals are “culpably” wrong, that their foolish ideas will render them miserable for eternity, and that their mistakes are the product of something other than sincere conscience.
Having offered these authoritarian musings, cautiously cushioned in the form of questions rather than assertions, Leiter then disposes of them in this way: “These illiberal thoughts . . . have little purchase these days within the mainstream of English-speaking moral and political theory, though not, as far as I can tell, because they have been refuted systematically.” 108 Readers must wonder whether in an environment less constrained than the English-speaking mainstream, Leiter would attempt to pursue these “illiberal thoughts” more seriously, and what his answer would be. In any event, Leiter “put[s] these doubts to one side” and accepts, “[f]or the sake of argument,” Rawls’s conclusion that behind the veil of ignorance we would choose to protect the liberty to form and follow our own beliefs.
He then gets to his real argument. He points out, correctly, that Rawls explicitly includes “moral” along with “religious” obligations in his analysis, and thus that nothing in Rawls’s argument is “specific to religion.” Leiter concludes, therefore, that “the Rawlsian perspective cannot help us evaluate the principled case for toleration of religion qua religion.” 109
This is too quick. To be sure, Rawls does not explicitly address whether his thought experiment could be used to evaluate constitutional protections for religion qua religion, but it might. Behind the veil of ignorance, we do not know whether we believe in a supreme authority or not, but if we do, by definition belief in a supreme authority creates obligations superior to all others—in Madison’s words, “dut[ies] . . . precedent both in order of time and degree of obligation, to the claims of Civil Society.” 110 Leiter himself recognizes that religious beliefs involve issues of “ultimate reality,” 111 meaning “the aspect of reality that is most important for valuable/worthwhile/desirable human lives.” 112 From a Rawlsian perspective, from behind the veil of ignorance, there is every reason to protect our capacity to pursue that which “is most important for valuable/worthwhile/desirable human lives.” Indeed, as a matter of historical experience, many hundreds of thousands of real people have regarded their religious beliefs as so important that they sacrificed their lives, fortunes, social standing, opportunities for career advancement, and bodily comfort in order to worship in accordance with their convictions, in the teeth of official hostility and persecution. Their testimony counts for something.
The freedom to carry out our perceived religious obligations in the face of political opposition might be more important than the freedom to carry out our personal conclusions about right and wrong, for two reasons. First, we might think that adherence to the supreme authority of the universe is an ontologically superior obligation to adhering to what we, as fallible persons, might conclude about morality. That is what “the sovereignty of God” would seem to entail. Leiter himself comments that religion is one of the “few systems of belief” that actually “gives effect” to convictions about morality—that “those who genuinely conduct their lives in accord with the categoricity of the moral demands they recognize are overwhelmingly religious.” 113 Maybe there is a reason for that. Second, we might think that it is essential for governments to make and enforce moral judgments, even in the face of differences of opinion, but think it not essential for governments to make and enforce religious judgments. It is impossible to conceive of a government that does not enforce norms of right and wrong, but not at all difficult to conceive of a government that leaves religious judgments to individual conscience. At least behind a veil of ignorance, we might think these things, and might think they warrant distinctive constitutional protection for freedom of religion.
What is Leiter’s answer? He says that “it is hard to see how persons in Rawls’s original position, operating behind the ‘veil of ignorance,’ could reason, in particular, about the value of insulation from evidence and the categoricity of demands, let alone existential consolation.” 114 This is an ipse dixit , not an argument. It is nothing but an arbitrary exclusion of religious belief (defined in Leiter’s pejorative way) from the original position. The whole point of the original position is that the parties behind the veil of ignorance “do not know, of course, what their religious or moral convictions are.” 115 These might include a belief in God. And if that is a possibility, a party in the original position might think it is special and worth protecting, even if Leiter does not.
Leiter’s argument regarding Millian utilitarianism is even more problematic. Mill argued that we can discover truth, or be fully persuaded of the truth, only if we are exposed to a wide range of beliefs and practices—even if some of them are false. As Leiter explains, “truths about how we ought to live” 116 support “a wider scope of toleration, one that encompasses practices , not just beliefs. ” 117 Mill’s argument thus supports free exercise of religion, and not just speech or opinion about it.
Leiter, however, says “we can dispense with [these] epistemic arguments for toleration . . . quickly,” because “[t]here is no reason to think, after all, that tolerating the expression of beliefs that are insulated from evidence and reasons— that is, insulated from epistemically relevant considerations — will promote knowledge of the truth.” 118 In other words, because religious belief is totally without evidentiary warrant, it cannot possibly contribute to the search for truth. He fits religious belief into an apparent exception Mill draws for mathematical mistakes, where there is “nothing at all to be said on the wrong side of the question.” 119
The argument thus depends on Leiter’s tendentious claim that religious believers “insulate” themselves from evidence as opposed to recognizing nonmaterial evidence of a sort that Leiter does not recognize. Put aside Leiter’s personal convictions about the falsity of religion, which reasonable people need not and the liberal state must not accept, and his argument here fails. Leiter pretends to be arguing from Mill, but in fact he is arguing the opposite of Mill. I quote the passage Leiter cites from On Liberty , but in its entirety:
But, some one may say, “Let them be taught the ground of their opinions . . . .” Undoubtedly: and such teaching suffices on a subject like mathematics, where there is nothing at all to be said on the wrong side of the question. The peculiarity of the evidence of mathematical truths is, that all the argument is on one side. There are no objections, and no answers to objections. But on every subject on which difference of opinion is possible, the truth depends on a balance to be struck between two sets of conflicting reasons. Even in natural philosophy, there is always some other explanation possible of the same facts; some geocentric theory instead of heliocentric, some phlogiston instead of oxygen; and it has to be shown why that other theory cannot be the true one: and until this is shown, and until we know how it is shown, we do not understand the grounds of our opinion. But when we turn to subjects infinitely more complicated, to morals, religion, politics, social relations, and the business of life, three-fourths of the arguments for every disputed opinion consist in dispelling the appearances which favour some opinion different from it. 120
Leiter takes it to be a faithful extension of Mill’s position that science, like mathematics, presents a way of knowing that ought to be applied to all our beliefs because its empirical force has demonstrated its superiority beyond all argument. But Mill thinks nothing of the sort. For Mill, mathematics is a unique domain of knowledge precisely because the “peculiarity of [its] evidence”—namely, the way that mathematical evidence is not susceptible to objections or answers to objections—renders argument superfluous. Science (“natural philosophy”), by contrast, is just one more place where argument and competition among positions is needed in order to determine and justify our beliefs. And for subjects “infinitely more complicated” than science, such as religion , Mill regards the clash of various epistemic positions as even more essential. 121 Neither science nor religion can be resolved by dogmatic appeals to authority or the pretense that there is only one side to the question.
Here again Leiter reveals himself as the Anti-Mill. Take his reference to “[t]he large literature in Anglophone philosophy devoted to defending the rationality of religious belief.” 122 One might think Leiter would wish to engage with the ideas in this literature, in a Millian spirit, if only to prove why they are wrong. But no. Leiter says it “[s]uffice[s] to observe that its proponents are uniformly religious believers,” and that “much” of this literature has the air of “post-hoc . . . rationalizations.” He then resorts to authority—to the “dominant sentiment among other philosophers,” which, he reports, is on the other side. 123 The first avenue of attack is a tautological ad hominem. It is neither surprising nor disqualifying that philosophers who find religious belief rational are likely to be believers, just as philosophers who take the opposite view are likely to be nonbelievers. What does that prove, other than that there is a difference of opinion? The second avenue of attack—Leiter’s appeal to the dominant sentiment among supposed experts—is both elitist and authoritarian, in precisely the sense that Mill condemned. Religious ideas should not be put to a vote, not even of philosophy PhDs.
Careful readers will also note the inconsistency between Leiter’s use of Rawls and his use of Mill. Rawls does not comment on whether his theory would support a special role for religious freedom, beyond that due to secular moral beliefs, and Leiter takes this as tacitly rejecting such a role 124 —even though we can construct an argument, fully consistent with Rawls’s methodology in A Theory of Justice , that supports such a role. Mill explicitly states that his theory applies with particular force to religion, yet Leiter argues that it does not, employing an argument from expert authority that Mill would never accept. How can this be reconciled?
E. Schauer and “Governmental Incompetence”
Leiter also touches too quickly on one other argument—Fred Schauer’s “argument from governmental incompetence,” made in defense of the freedom of speech. 125 Even on the assumption that speech sometimes causes real harm that outweighs any possible benefit, Schauer argues that there is no reason to think that the government will make the right choices about what speech to regulate. Politicians are likely to suppress speech when it advances their own political interests, which is unlikely to coincide with the suppression of speech that causes the most net harm. The same argument can be made about freedom of religion, with even greater force. A cornerstone of the American constitutional tradition of religious freedom is the view—held by all stripes of religious opinion—that the government has no competence to judge religious truth.
Public schools can teach all kinds of nonsense, and people may not like it, but they confine their objections to ordinary channels. When public schools purport to teach religious truth, by contrast—for example, by allowing a prayer at a graduation—it is a constitutional case of the highest order. As a supporter of the Court’s School Prayer Cases , 126 I have gone on Christian talk radio to defend the prohibition of collective spoken prayer in school. The natural impulse of the audience tends to be to defend prayer, but when I explain that agents of the government should not be entrusted with the power of teaching our children how and what they should pray, even the most fervent believers usually come to see the wisdom of the decisions. Whatever our views on religion, no one trusts the government to guide our spiritual lives. That is what Schauer is getting at. Even if we would not be principled disestablishmentarians in a theoretical world where government officials are theologically trustworthy, the actual fact of government incompetence is good reason to deny them the power to guide the religious life of the nation.
Leiter’s reaction to Schauer’s argument is brief and baffling. After devoting almost two pages to explaining Schauer’s argument, Leiter offers one (long) sentence in response. He says: “Perhaps this kind of instrumental argument for state toleration is more plausible,” but “it does not tell us why we, morally, ought not to eradicate differing beliefs or practices, it tells us only that we (through the instrumentality of the state) are unlikely to do it right.” 127 That is not much of a response.
To begin with, Schauer’s is not just an “instrumental” argument. It goes to the heart of the matter. Government is not omnicompetent. It has a large, but limited, role in human affairs, limited to matters where collective coercive action is necessary and likely salutary. It makes no sense for a people to give its government powers that are outside its competence, and it makes no sense to talk about constitutional design on the assumption that government will always exercise its power intelligently and beneficently. Second, what is wrong with an instrumental argument? We might erect constitutional barriers to governmental action because the activity we are protecting is especially important to the individual or to society, and we might erect constitutional barriers to governmental action because the power we are limiting–the power to “eradicate differing beliefs or practices”–is especially inappropriate to government, or susceptible to abuse. Leiter offers no reason why the latter is less persuasive a reason than the former.
That the state is “unlikely to do it right” is evidently not, to Leiter, a deeply serious objection. He operates on an abstract plane where a magisterial “we”—those who share his own convictions and prejudices—control the levers of power. The entire book is about what this infallible “we” should do about religion. The American tradition of constitutionalism, though, proceeds on the premise that “enlightened statesmen will not always be at the helm” 128 and that the “Civil Magistrate is [not] a competent judge of Religious Truth.” 129 Leiter’s dismissal of Schauer’s argument misses this important point.
III. the legal arguments
The conclusion of the first four chapters is that there is no “principled argument that picks out distinctively religious conscience as an object of special moral and legal solicitude.” 130 In Chapter Five, entitled “The Law of Religious Liberty,” the author applies that theoretical conclusion to two practical issues of First Amendment law: whether persons whose religious beliefs conflict with neutral and generally applicable laws are entitled to exceptions or accommodations, and whether state institutions such as schools may deny religious groups equal access to otherwise generally available public resources. As to the first, he argues that singling out religious claims of conscience would be “unfair” because it “arbitrarily selects some subset of claims of conscience for special consideration,” 131 although he leaves room for exemptions that would not shift burdens onto others. As to the second issue, Leiter argues that it is “consistent with principled toleration” for the government to discriminate against religious views of which it disapproves and to exclude them from equal access to public property and resources, particularly in the schools 132 —though he is careful to insist that this discrimination must not extend to “persecution” or the imposition of “coercive burdens.” 133
Putting these two positions together, religious beliefs and practices may not be given “special moral and legal solicitude,” but they may be subjected to special civil disadvantages and exclusions. It is “arbitrar[y]” and “unfair” to single out the religious “subset of claims of conscience” when this would protect the religious but not when this would disadvantage them. What theory could support these two conclusions?
A. Free Exercise Exemptions
Professor Leiter’s rejection of free exercise exemptions bears strong superficial similarity to the Supreme Court’s still-controversial 1990 decision, Employment Division v. Smith . 134 In an opinion by Justice Antonin Scalia, the Court held that members of the Native American Church have no constitutional right to use the drug peyote in their religious ceremonies, because the Free Exercise Clause provides no protection against neutral laws of general applicability. Leiter, similarly, argues that “there should not be exemptions to general laws with neutral purposes, unless those exemptions do not shift burdens or risks onto others.” 135
There are three important differences, however, between Leiter and the Court. First, Leiter’s rationale is entirely different from, even contradictory to, the Court’s. Leiter bases his opposition to exemptions on his belief that it would be “unfair” and “arbitrar[y]” to protect religious beliefs if it is not feasible to extend the same protection to nonreligious claims of conscience. 136 The Court, by contrast, primarily based its opposition on the jurisdictional impropriety of allowing judges to weigh religious needs against the importance of governmental purposes. 137 The Court did not think it improper for the First Amendment to single out religion, and in fact even stated that legislative exemptions for religious practices may be “desirable.” 138
Second, Leiter excludes from his “no exemptions” rule cases where the exemptions would not shift burdens or risks onto others. The Smith Court recognized no such limitation. In fact, because the ceremonial use of peyote does not harm others, Leiter seems to conclude that Smith itself was wrongly decided. 139 Once this exclusion is taken into account, Leiter advocates a far broader scope for free exercise exemptions than the general rhetoric of the book suggests—almost as broad, perhaps, as pre- Smith interpretations of the Free Exercise Clause.
Third, Leiter recognizes the danger that a no-exemptions regime might “open the door to state conduct motivated by antireligious animus, but under the pretense of legitimate, neutral objectives.” 140 The Smith opinion seems oblivious to that problem. The problem is especially serious because it is exceedingly difficult for courts of law to ferret out official pretense. Leiter argues that
if we had reason to think that it will be impossibly difficult to discriminate between the facade of neutral purpose and actual neutral purpose in legislation that burdens religion—then we might think exemptions for religious claims of conscience the preferable approach, notwithstanding the inequality such an approach entails and notwithstanding the burden on the general welfare. 141
That is a generous concession, though it ultimately appears not to sway him from his no-exemption position.
Leiter frames his discussion of the exemptions issue around one illustrative case: whether baptized adherents of Khalsa Sikhism, who have a religious obligation to carry a ceremonial dagger, or kirpan , should be exempted from general school regulations prohibiting students from carrying weapons. Leiter compares this Sikh believer to a hypothetical “rural boy” of the same age whose “family traditions and upbringing” call for him to carry a knife as a symbol of his identity as a man in his community. 142 He asks us to think about what should be done in the two cases. Should both boys be exempted? Neither? Only one of them?
Leiter says there “can be no doubt” that his hypothetical rural boy’s felt need to carry a knife is a “conscientious obligation”—indeed, an “equally serious obligation[] of conscience” to that of the Sikh. 143 In my opinion, far from there being “no doubt” about this, the idea that the rural boy has a conscientious obligation comparable to the Sikh is highly dubious. Strictly speaking, conscience is an individual’s judgment about right and wrong—such things as not killing innocent persons, telling the truth, and caring for your children. It strikes me as very unlikely that the hypothetical rural boy believes that his family’s tradition of knife carrying is a moral obligation of this nature. It may take away from “who he is” to deny him the right to carry a knife, but it does not make him commit a wrong. There are many practices tied up in ethnic or familial identity that are not moral in nature. This does not make them unimportant, but it does put them in a different category than that of “conscience.” A religious dictate, by contrast, is more than a question of identity; it is a duty.
As Leiter points out, “no Western democracy” would recognize a legal right on the part of the rural boy, though it is easy to imagine that rules against pocket knives might not always be rigorously enforced, especially in rural communities where knives are commonplace and useful. The Sikh, by contrast, has a good case. In the leading decision in the United States, Cheema v. Thompson , 144 the Ninth Circuit approved an arrangement under which the Sikh student was exempted from the “total ban” on “weapons,” provided his kirpan had a dull blade of only 3-3 ½ inches, was sewn into its sheath, and was worn under his clothing so as not to be plainly visible. 145 (The dissenter’s main point of disagreement was to think that the blade should be still smaller, and riveted to the sheath. 146 ) In other cases, courts have found that kirpans are not “weapons” at all, in light of their design and ceremonial purpose. 147 Leiter focuses on a Canadian Supreme Court decision, Multani v. Commission scolaire Marguerite-Bourgeoys , 148 in which the Sikh student was allowed to wear his kirpan without these protective limitations.
One might expect Leiter to say that these cases were wrongly decided at a level of principle, because it would be unfair and arbitrary to allow the Sikh student to wear a kirpan when the rural boy has no right to carry a knife. After all, the rural boy’s conscientious claim is “equally serious” to the Sikh’s. 149 But that does not seem to be Leiter’s view. “Certainly,” he says, “the state should tolerate the various religious practices of Sikhs under the general rubric of liberty of conscience.” 150 Apparently this is so even though no Western democracy protects the right of the rural boy to wear his knife, and Leiter does not argue that they should. Leiter’s reservation about the decisions—and it is an entirely reasonable one, even if I might come out the other way—is that the courts in the kirpan cases gave insufficient weight to the risk of harm to others. If the equality objection (no exceptions for religion unless there would be an exception for secular conscience) were dispositive, Leiter would not need to discuss the risk of harm. Leiter concludes that “both boys should be out of luck,” 151 but that is because he thinks an exemption in this context would create a risk of harm to others. If the harm could be minimized or eliminated—as the Ninth Circuit thought it could, through the protective conditions—it appears that only the rural boy would be out of luck.
Note what has happened to Leiter’s argument. When it comes down to the real case of the Sikh boy and his kirpan , the “culpable falsity” of religious belief drops out of the calculus, and the analysis shifts to what he calls the “side-constraint” of not allowing harm to others. Leiter’s position turns out to be “that there should not be exemptions to general laws with neutral purposes, unless those exemptions do not shift burdens or risks onto others.” 152 Another way to put this is: “There may be exemptions to general laws with neutral purposes unless those exemptions shift burdens or risks to others.” The real point of difference then becomes: How much burden? How much risk?
It appears that in cases where the Millian Harm Principle is not violated by an exemption, Leiter’s rhetorical case against “special” solicitude for religion turns out not to matter very much, if it matters at all. As Leiter understands, his hypothetical rural boy’s perceived need to carry a knife will not and should not receive legal protection. This is not because the law is hostile or indifferent to nonreligious claims of conscience. It is because the claim is too broad, too undefined, too unfocused to be enforceable as a legal right.
As Leiter recognizes, this practical problem of open-ended subjectivity is not true of religious claims, at least not to the same extent. “After all,” he points out,
a litigant who asserts a claim of religious conscience must reference a religion . Religions typically have texts, doctrine, and commands . . . . Membership in the religion in question usually depends . . . on participation in practices , rituals , and ceremonies . All of this gives the courts a rich evidential base for assessing the genuineness of a claim of conscience. 153
These practical differences lead Leiter to the uncomfortable thought that “perhaps we should simply extend legal protection for liberty of conscience only to claims of conscience that are rooted in communal or group traditions and practices that mimic, from an evidential point of view, those of religious groups.” 154 After a few pages debating the “unfairness of such inequality,” 155 Leiter concludes that “the inequality of treatment of claims of conscience is not necessarily fatal to a scheme of universal exemptions for claims of conscience.” 156 Translation: it is permissible, after all, to single out religious claims and those nonreligious claims that “mimic” religious claims, and to give them special solicitude.
We cannot know how different this revised position is from the pure protection of free exercise of religion without knowing how often nonreligious claims “mimic” religion in this sense. This might well be a very small category. Leiter himself observes that “those who genuinely conduct their lives in accord with the categoricity of the moral demands they recognize”—which presumably is the heart of the matter—“are overwhelmingly religious.” 157 As already noted, the Supreme Court found that the claims of two Vietnam-era conscientious objectors were close enough that they warranted religious exemptions, 158 but there have been no others. In the very situation Leiter uses to illustrate the problem—the Sikh and the rural boy—the latter claim does not sufficiently “mimic” the former to warrant legal protection.
Having talked himself out of the claim that “the inequality of treatment of claims of conscience is . . . fatal to a scheme of universal exemptions for claims of conscience,” 159 Leiter drops the subject with no further discussion—until the very end of the book, when he returns to the position that the “selective application” of toleration to the conscience of only religious believers “is not morally defensible.” 160 Even then, however, he equivocates. He reiterates his support for a “No Exemptions approach . . . to claims of conscience that are burden-shifting,” 161 but as to non-burden-shifting exemptions, it still appears to be his position that religious claims and those that “mimic” religious claims are entitled to exemptions.
How different that is from the current regime depends entirely on what he means by “mimicking” religion and what counts as harm. On the actual practical meaning of those key ideas, Leiter says almost nothing.
The question of free exercise exemptions thus turns out not to hinge on the philosophical arguments of the first four chapters, but instead on the application of the Harm Principle. Some religious exemptions entail harm or the risk of harm to third parties, and some do not. In the former category Leiter gives as examples “exemptions from zoning regulations for religious institutions, exemptions from mandatory vaccination schemes, or exemptions from a ban on knives in the schools.” 162 In the latter category are such exemptions as “the right to wear certain religious garb, or to use certain otherwise illegal narcotics in religious rituals.” 163 So, the Peyote Case was wrongly decided after all.
The analysis of free exercise claims has always taken harm to third parties into account. Madison wrote that the free exercise of religion should prevail “in every case where it does not trespass on private rights or the public peace.” 164 Most of the early state constitutions protected the exercise of religion up to the point that it endangered public peace and good order. 165 Prior to the Peyote Case , free exercise litigation turned almost entirely on questions of harm, 166 and cases governed by the Religious Freedom Restoration Act 167 and the Religious Land Use and Institutionalized Persons Act 168 employ that same standard. 169 But the idea of “harm,” or of “burden-shifting,” is not self-defining. If these are to be useful legal concepts, courts must be able to make defensible judgments both about degree and nature of harm.
Unfortunately, neither courts nor scholars have given serious analytical attention to what counts as “harm.” Leiter quotes John Rawls as saying that liberty may be limited “to prevent an invasion of freedom that would be still worse,” 170 which implies some sort of weighing or balancing of harms, to determine which is “worse.” That is not easy to do with any consistency or predictability. And Leiter refers many times to John Stuart Mill’s Harm Principle, according to which “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” 171 But that statement merely begs the question: What counts as harm?
There are, of course, many easy cases. Leiter mentions that “the state need not tolerate . . . killing the infant children of the alleged heretics.” 172 No one will argue with that. But what about parents who make decisions about their children’s upbringing that others—maybe experts, maybe majorities—think are deleterious? A test case might be Wisconsin v. Yoder , 173 where the Supreme Court held that Amish families have a free exercise right not to send their children to school after the eighth grade. Was that “harm” in the Millian sense? What about prisoners whose religious practices—for example, a kosher diet—increase the cost to the taxpayers? 174 Is that “harm”?What about slitting the throats of chickens and sheep in a religious ceremony? 175 When members of three small California Indian tribes sought to block construction of a logging road through their sacred places in a national forest, was the loss of the economic benefits to the logging companies a Millian “harm”? 176
Outside the context of free exercise claims, we do not live in a Millian world. A great deal of modern legislation coercively adjusts the burdens and benefits of life, helping some at the expense of others, in ways that Mill presumably would not approve. Many modern free exercise controversies arise in the context of social and economic regulation that coerces transactions and dictates their terms. In our post- Lochner , which is to say post-Mill, world, if the problem is merely economic redistribution, there is generally no constitutional obstacle to these schemes. But what if the regulatory scheme demands a violation of conscience? From the baseline of the regulatory requirement imposed on everyone, an exemption for one individual can be said to “harm” the intended beneficiaries of the law, because they will not receive the benefit. But from the standpoint of the Millian Harm Principle, an exemption to such regulation merely returns the parties to the position they occupied before law coercively intervened.
For example, in the contraceptive mandate cases, the government has decided to shift the cost of obtaining contraceptives (including abortifacient drugs) from the user to her employer, through a mandatory term in the health insurance contract. There is nothing constitutionally objectionable about that for most employers, but what about those for whom providing abortifacients is a violation of conscience? 177 Leiter objects to “burden-shifting” religious exemptions, but what if the burden-shifting goes the other way, and the grant of an exemption would return the parties to a clearly constitutional status quo ante?
For another example, a wedding photographer in New Mexico, Elaine Huguenin, declined to provide her services to a lesbian couple, out of the conscientious belief that same-sex marriages are contrary to God’s will. 178 The couple easily found another wedding photographer. Were they harmed by Elaine’s refusal to film their nuptials? If Elaine had declined their business because she had another booking, or because she was going on vacation, no one would think they were harmed. It would appear that the only real “harm” was the communicative impact of Elaine’s action—the feeling of offense experienced by the lesbian couple because of Elaine’s reasons. In other contexts, the Court routinely holds that people may not be punished because others are offended by what they say. Yet state officials fined the photographer for her refusal, and the New Mexico Supreme Court recently upheld the fine as constitutionally legitimate. 179 Should we treat offense as “harm” in the context of a free exercise claim for exemption?
In an intriguing footnote, Leiter says that “to exempt Catholic priests from performing gay marriages would not be a burden-shifting exemption as long as gay couples can otherwise be married.” 180 From the perspective of harm or burden-shifting, that example is not different in any meaningful way from the Elane Photography case, unless the priests’ religious status is the driving factor (meaning that religion is “special” after all). Leiter purports to distinguish the case of a Catholic pharmacist who objects to dispensing morning-after pills on the ground that “depending on the community at issue and the availability of the relevant medicines,” this could be burden-shifting. 181 I say “purports” because in the two litigated cases involving such pharmacists, in Illinois and in Washington State, the evidence showed that conscience exemptions did not have meaningful effects on patient access to the drugs. 182 Thus, it would seem that, in Leiter’s view, the government should not be able to enforce public accommodation requirements or universal service obligations against service providers with conscientious objections, except in the rare circumstance where the service would not otherwise be available.
One more example: How does the Millian Harm Principle apply to the hiring of ministers by churches? 183 Title VII of the Civil Rights Act of 1964 gives everyone a right to obtain employment without discrimination based on sex. 184 If a woman goes to seminary and is otherwise qualified for an available position, can an Orthodox synagogue refuse to hire her as a rabbi? Who is shifting burdens onto whom, and relative to what baseline?
Questions of this sort will dominate free exercise litigation for the next decade or two. My sense is that very few free exercise claims seek authorization to invade the private rights of third parties or to inflict harm (in the Millian sense) upon them. Most, instead, resist the blanket enforcement of regulatory schemes that interfere with natural liberty in a way that, in some cases, also burdens conscience. Leiter does not say much about these situations outside of footnote 11 to Chapter Five, 185 but that footnote suggests that the logic of his arguments may be more supportive of these claims for exemption than the more generalized rhetoric of the book would suggest.
C. Establishment of a “Vision of the Good”
The book closes with an argument that the establishment of religion is not inconsistent with Leiter’s conception of “principled toleration.” As a heuristic device, Leiter contemplates a “scenario in which the state, instead of disestablishing religion in the public schools, endorses a particular religion (say, Catholicism) and thus declines to let funding for public education be utilized for supporting Hinduism or atheism.” 186 This means, among other things, that “public school facilities” (such as classrooms in the afternoon) “would be available to the Catholic Student Society, but not to the Hindus or the atheists or perhaps even to the Republicans!” 187 So long as dissenters are permitted to express contrary views using their own resources, including wearing religious symbols or garb to school, and to attend alternative sectarian schools, 188 he says this establishmentarian scenario is consistent with “principled toleration.” 189
That is probably true. The government could use its prestige, power, and resources to support one vision of religious truth while still leaving dissenters free to dissent. The establishment of religion may be consistent with mere toleration, but it is not consistent with the “full and free exercise of religion” 190 that our founders adopted at the federal level in lieu of toleration. About half a dozen states pursued some form of tolerant establishment in the early years of the Republic, when the Religion Clauses did not apply to state governments, but all of them dismantled their establishments by 1833. No one, to my knowledge, mourns their passing.
Toleration might be the most we can hope for in nations of the Middle East, where the population is overwhelmingly of one religious faith and there is a long tradition of union between mosque and state, but for pluralistic liberal democracies, mere “toleration” would be a step backward. From the point of view of religious freedom or of liberal constitutionalism more generally, it is hard to see why anyone would prefer Leiter’s hypothetical Catholic establishment to a regime of religious neutrality. As Madison and others pointed out long ago, the establishment of religion is bad for religion, including the established faith, bad for dissenters, bad for government, and bad for freedom.
Leiter recognizes that it is “possible that a religious or irreligious establishment reduces citizens with differing views to a second-class status.” 191 But for some reason this “is a separate question,” which requires a “culturally nuanced inquiry.” 192 He says no more against it.
Of course, Leiter has no interest in establishing the Catholic religion. What he defends is the establishment of secularism, where we would use the public schools to inculcate ideologies of a nonreligious nature and prevent voluntary student groups from using the facilities on an equal basis for prayer or Bible study. 193 His defense of establishment is a disguised attack on the modern constitutional doctrine that the state must be neutral toward religion and may not deny equal access to otherwise open public facilities to groups on account of their religious point of view. 194
Now, the idea of a secular state may sound harmless. We often use the term, loosely, to describe a nonsectarian or nonconfessional state—a state that is not committed to a particular religion or religious worldview. 195 But Leiter is using the idea in a more insidious way, to denote a state that is committed to secularism as a substantive position—that is, to what he calls “irreligion, in the form of atheism or otherwise.” 196 The establishment of secularism would stand in the same relation to religious beliefs as his hypothetical Catholic establishment stands to Hinduism, atheism, and Republicanism. The whole point of this sixteen-page detour 197 into antidisestablishmentarian theory is to legitimate the use of governmental institutions, especially schools, to promote secularism or irreligion and to discriminate against religious speech.
A state that is neutral toward religion is different. Such a state may promote ideas consistent with democratic republicanism, but will not promote religion over irreligion or the other way around. It “may place its imprimatur on values and worldviews that are inconsistent with the claims of conscience of some of its citizens,” 198 just as—in the words of the Supreme Court—it may pass laws that “happen[] to coincide or harmonize with the tenets of some or all religions.” 199 But it cannot teach religion (though it can teach about religion in a non-catechetical way), and it cannot teach “irreligion” either. And when such a state opens its facilities to private persons for speech of their own choosing, it must neither favor nor disfavor groups on the basis of their religious or other beliefs. We should remember Justice Arthur Goldberg’s admonition in the School Prayer Cases that “a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious . . . [is] not only not compelled by the Constitution, but . . . prohibited by it.” 200
Leiter’s defense of the establishment of religion brings us back, full circle, to where we began discussion of this book. It seemed odd and anachronistic that Leiter would write of religious “toleration” instead of religious freedom. Toleration was a term associated with the religious establishment. As President Washington wrote to the Hebrew Congregation of Newport, in disestablishmentarian America “[i]t is now no more that toleration is spoken of.” 201 It turns out that Leiter wants to return to the earlier regime, but with secularism rather than Anglicanism in charge. I hazard the guess that he will not persuade many readers not already predisposed to that point of view.
Announcing the Editors of Volume 134
Announcing the first-year editors of volume 133, announcing the seventh annual student essay competition.
See Alan Wolfe, One Nation After All: What Americans Really Think About God, Country, Family, Racism, Welfare, Immigration, Homosexuality, Work, the Right, the Left, and Each Other 61-72, 69 (1998) (noting a high degree of consensus for the proposition that “[i]n a diverse religious climate, the proper way to treat conflicts between one religion and another is to give space to them all”).
See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962).
See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012).
See Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).
For an account of the importance of the Religion Clauses to religious progressives, see Stephen H. Shiffrin, The Religious Left and Church-State Relations (2009).
See Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925) (holding that there is a constitutional right to educate children in private, including religious, schools).
See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006); Lukumi , 508 U.S. 520.
494 U.S. 872 (1990).
42 U.S.C. §§ 2000bb-2000bb-4 (2006).
See Douglas Laycock, Free Exercise and the Religious Freedom Restoration Act , 62 Fordham L. Rev. 883, 896 (1994).
See Brief for the Coalition for the Free Exercise of Religion as Amicus Curiae Supporting Respondent at app. A, City of Boerne v. Flores, 521 U.S. 507 (1997) (No. 95-2704) (listing amici curiae supporting the constitutionality of the Religious Freedom Restoration Act); Laycock, supra note 10, at 895-96.
See Douglas Laycock, Sex, Atheism, and the Free Exercise of Religion , 88 U. Det. Mercy L. Rev. 407, 411-18 (2011).
Brian Leiter, Why Tolerate Religion? (2012).
Contra Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) (noting, in a unanimous opinion by Chief Justice Roberts, that the Religion Clauses “give[] special solicitude to the rights of religious organizations”).
Leiter , supra note 13, at 63.
Id. at 122-26.
Id. at 121.
Id. at 102 (claiming that a regime that allows exemptions only for religious claims of conscience is “unfair” because an exemptions regime only for religious claims “arbitrarily selects some subset of claims of conscience for special consideration”).
Id. at 114-15.
Id. at 122-24.
Id. at 83-84 (noting religious resistance to Nazism and apartheid). Leiter shows no awareness of sociological evidence regarding the connection between religious participation and civic engagement, charitable giving, volunteer work, obedience to law, or other matters of civic concern. See Anthony S. Bryk, Valerie E. Lee & Peter B. Holland, Catholic Schools and the Common Good 312-43 (1993) (indicating, on the basis of empirical study, that Catholic education furthers students’ communal engagement, social responsibility, and personal development); Paul J. Weithman , Religion and the Obligations of Citizenship 36-66 (2002) (surveying empirical data on the role of religion in American democracy and concluding that religion helps to promote active citizenship).
Leiter , supra note 13, at 83-84 (noting Bernard Madoff as an example of harmful behavior driven by secular greed).
Other scholars making a similar argument against the special status of religion include Frederick Mark Gedicks, An Unfirm Foundation: The Regrettable Indefensibility of Religious Exemptions , 20 U. Ark. Little Rock L. Rev. 555 (1998); Steven G. Gey, Why Is Religion Special?: Reconsidering the Accommodation of Religion Under the Religion Clauses of the First Amendment , 52 U. Pitt. L. Rev. 75 (1990); and Micah Schwartzman, What If Religion Is Not Special? , 79 U. Chi. L. Rev. 1351 (2012).
See Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion , 44 Wm. & Mary L. Rev. 2105, 2114 (2003).
I summarize these events in Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion , 103 Harv. L. Rev. 1409, 1443, 1462-63 (1990).
31 The Writings of George Washington from the Original Manuscript Sources, 1745-1799, at 93 n.65 (John C. Fitzpatrick ed., 1939).
Leiter , supra note 13, at 13.
Id. at 8 (quoting Bernard Williams, Toleration: An Impossible Virtue? , in Toleration: An Elusive Virtue 18, 19 (David Heyd ed., 1996)).
Id. at 13 (“Some contemporary ‘liberal’ philosophers think the right posture for the modern state is one of neutrality, not toleration, with the disapproval the latter implies. But I reject the view that any state can really be neutral in this way.”).
In a later chapter, Leiter denies that his book is an argument “that religious belief per se deserves disrespect (e.g., intolerance),” rather hotly calling this a “pernicious conclusion . . . that is no part of the argument of the book.” Id. at 91. “Disapproval” and “disrespect,” however, are not far apart.
Id. at 14-15.
According to Locke:
[T]he care of souls cannot belong to the civil magistrate, because his power consists only in outward force; but true and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God. And such is the nature of the understanding, that it cannot be compelled to the belief of anything by outward force.
John Locke, A Letter Concerning Toleration (1685), reprinted in L ocke on Toleration 64 (Richard Vernon ed., 2010).
Leiter , supra note 13, at 10.
Id. at 8. (quoting Williams, supra note 39, at 19).
Andrew Koppelman’s recent book persuasively makes this theme the centerpiece of his understanding of religious freedom under the First Amendment. See Andrew Koppelman, Defending American Religious Neutrality (2013).
W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
James Madison, Memorial and Remonstrance Against Religious Assessments (1785), reprinted in Religion and the Constitution 51, 52 (Michael W. McConnell et al. eds., 3d ed. 2011).
See McConnell, supra note 35, at 2193-205.
See Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality 164-74 (2008).
Id. at 73-79.
Id. at 77-78.
Id. at 68 .
McConnell, supra note 36, at 1443 (quoting Gaillard Hunt, James Madison and Religious Liberty , 1 A nn . R ep . Am . H ist . Ass’n 163, 166 (1901)).
Id. at 78-80.
Id. at 8. The phrase is borrowed from Bernard Williams. See supra note 39.
Leiter , supra note 13, at 34.
Id. at 29-30.
Id. at 34 (emphasis omitted).
Id. ; see also id. at 37 (positing that “one might think that all commands of morality are categorical in just this way”); id. at 148 n.17 (claiming that “an experience of categoricity is central to anything that would count as a claim of conscience”).
The principal definitions in both the Merriam-Webster and the Oxford English Dictionaries define “conscience” in terms of “right and wrong.” Conscience , Merriam-Webster , http://www.merriam-webster.com/dictionary/conscience (last visited Nov. 26, 2013); Conscience , Oxford English Dictionary , http://www.oed.com/view/Entry/39460 (last visited Nov. 26, 2013).
Leiter , supra note 13, at 38.
Id. at 53, 55, 59, 60, 62, 65, 67, 80-81, 83-85.
Id. at 47 (emphasis omitted).
Id. at 52-53.
Id. at 46-47.
See Nathan S. Chapman, Disentangling Conscience and Religion , 2013 U. Ill. L. Rev. 1457, 1461 (noting that “religious liberty” and “liberty of conscience” overlap but are not identical).
United States v. Seeger, 380 U.S. 163, 176 (1965); see also Welsh v. United States, 398 U.S. 333, 340 (1970) (holding that “purely ethical or moral” beliefs may entitle an individual to a conscientious objector exemption).
See 42 U.S.C. § 300a-7 (2006) (forbidding health care providers receiving certain federal funds to require individuals to perform or assist in abortions in violation of their “religious beliefs or moral convictions”).
Leiter , supra note 13, at 1-3, 64-66, 93.
Id. at 39-40.
Id. at 94 (Leiter’s exclamation point).
This history is set forth in McConnell, supra note 36, at 1488-91.
Leiter , supra note 13, at x (emphasis omitted). Leiter sometimes seems to equate “falsity” with being “unwarranted,” see id. at 77 (“Religious belief is (epistemically) culpable false belief—that is, it is unwarranted and one ought to know it is unwarranted.” (emphasis omitted)), but some unwarranted beliefs are true.
For Leiter’s view of the kind of evidence that would support the reasonableness of religious belief, see id. at 40-42. For discussion of why this view of evidence is questionable, see Alvin Plantinga, Warranted Christian Belief (2000); and Nicholas Wolterstorff, Can Belief in God Be Rational if It Has No Foundations? , in F aith and Rationality: Reason and Belief in God 135 (Alvin Plantinga & Nicholas Wolterstorff eds., 1983), which offer criteria for the application of the concept “rational” that do not indulge in reductive evidentialism.
Leiter , supra note 13, at 58; see also id. at 39.
See, e.g. , Marcus J. Borg & N.T. Wright, The Meaning of Jesus: Two Visions 3-30 (1999) (discussing the impact of archeology, history, and cultural study in understanding the life and message of Jesus); Gary Dorrien, The Making of American Liberal Theology: Idealism, Realism, and Modernity 2 (2003) (describing the development of modern liberal theology in Protestant and Catholic thought as a movement characterized by the belief that “God was immanent in the evolutionary processes of nature and modern cultural development”); Hans W. Frei, The Eclipse of Biblical Narrative: A Study in Eighteenth and Nineteenth Century Hermeneutics (1974) (charting the broad ranging shift from precritical narrative readings of the Bible to historical-critical readings); The Oxford Handbook of Biblical Studies 567-674 (J.W. Rogerson & Judith M. Lieu eds., 2006) (offering a collection of essays in Biblical hermeneutics drawing on archeology, textual criticism, literary criticism, and feminist theory); J ohn Polkinghorne, Science and the Trinity: The Christian Encounter with Reality (2004) (exploring the relevance of claims of science and modern physics to Christian theology).
See Thomas M. Osborne, Jr., Practical Reasoning , in T he Oxford Handbook of Aquinas 276 (Brian Davies & Eleonore Stump eds., 2012); see also Daniel Westberg, Right Practical Reason: Aristotle, Action, and Prudence in Aquinas (1994).
Leiter , supra note 13, at 27.
See, e.g. , Thomas S. Kuhn, The Structure of Scientific Revolutions 157-58 ( 3d ed. 1996 ) ( noting that a decision to adopt a new scientific paradigm often demands “defiance of the evidence provided by problem-solving. [The scientist] must, that is, have faith that the new paradigm will succeed with the many large problems that confront it, knowing only that the older paradigm has failed with a few. A decision of that kind can only be made on faith”); see also Richard Rorty, Philosophy and the Mirror of Nature 341 (1st ed. 1979) (arguing that we should think of science as a “value-based enterprise”).
Leiter , supra note 13, at 149 n.18 (emphasis omitted).
Id. (quoting Alex Byrne, God , Bos. Rev. , Jan.-Feb. 2009, at 31).
See John Rawls, A Theory of Justice 207 (1971) [hereinafter Rawls, A Theory of Justice ]. Leiter declines to draw support from Rawls’s later work, John Rawls , Political Liberalism (2005), calling it an “unfortunate” development in Rawls’s thought, Leiter , supra note 13, at x, and asserting that it plays no role in his analysis, id . at 141-42 n.17.
Leiter , supra note 13, at 16 (quoting Rawls, A Theory of Justice, supra note 102 , at 207).
John Cotton, The Bloudy Tenet Washed and Made White in the Blood of the Lamb 13 (Quinta Press 2009) (1647).
Leiter , supra note 13, at 18.
Id . at 55.
Madison , supra note 50, at 51.
Leiter , supra note 13, at 47.
Id. at 38 .
Id. at 54-55.
Id. at 16 (quoting Rawls, A Theory of Justice, supra note 102 , at 206 ).
Id. at 55-56.
Id. at 57 (quoting John Stuart Mill, On Liberty 35 (Elizabeth Rapaport ed., Hackett 1978) (1863)).
John Stuart Mill, On Liberty 49 (Alan S. Kahan ed., Bedford 2008) (1863).
I am grateful to Mark Storslee for this point.
Leiter , supra note 13, at 80.
Id . at 12 (citing Frederick Schauer, Free Speech: A Philosophical Enquiry 86 (1982)).
Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962).
Leiter , supra note 13, at 12.
The Federalist No. 10, at 80 (James Madison) (Clinton Rossiter ed., 1961).
Madison, supra note 50, at 51-52.
Leiter , supra note 13, at 92.
Id. at 102.
Id. at 123.
Id. at 104.
Leiter , supra note 13, at 4.
Smith , 494 U.S. at 890 (criticizing a system “in which judges weigh the social importance of all laws against the centrality of all religious beliefs”). The Court also purported to rely on text and precedent, but these arguments were unpersuasive. See Michael W. McConnell, Free Exercise Revisionism and the Smith Decision , 57 U. Chi. L. Rev. 1109, 1114-16, 1120-27 (1990).
Smith , 494 U.S. at 890.
Leiter , supra note 13, at 100.
Id. at 107.
67 F.3d 883 (9th Cir. 1995) (arising under the Religious Freedom Restoration Act, prior to City of Boerne v. Flores , 521 U.S. 507 (1997)); see Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. §§ 2000bb to 2000bb-4 (1994)).
Cheema , 67 F.3d at 884, 886.
Id. at 892, 894.
See, e.g. , State v. Easterlin, 149 P.3d 366, 369 n.3 (Wash. 2006) (suggesting that a Sikh may argue to the trier of fact that he was not “armed” while wearing the kirpan ); State v. Singh, 690 N.E.2d 917, 920-21 (Ohio Ct. App. 1996) (holding that the trial court erred when it denied defendant’s motion for judgment of acquittal because there was no evidence the kirpan “was designed or adapted for use as a weapon” as required for a violation of the state concealed weapon statute); Hof van Beroep [HvP] [Court of Appeal] Antwerpen, Jan. 14, 2009, L204 P 2007 & L205 P 2007 (Belg.), http://www.sikhs.be/files/IMG_0003.pdf .
[2006] 1 S.C.R. 256 (Can.).
Leiter , supra note 13, at 3.
Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965).
Leiter , supra note 13, at 99.
Id. at 133.
Id. at 130. Leiter uses the term “burden-shifting” not with regard to burdens of proof in litigation, but as referring to cases where protection for one person’s conscience would impose a burden on someone else.
Id. at 99-100.
Id. at 100.
Letter from James Madison to Edward Livingston (July 10, 1822), in 9 The Writings of James Madison 98, 100 (G. Hunt ed., 1901).
I discuss these provisions in greater detail in McConnnell, supra note 36, at 1455-58, 1461-66.
See, e.g. , United States v. Lee, 455 U.S. 252 (1982) (holding that the Free Exercise Clause did not mandate an exemption from social security taxes for an Amish employer because such accommodation would undermine the mandatory contribution system at the heart of the program); Sherbert v. Verner, 374 U.S. 398, 406 (1963) (noting that infringement of a claimant’s free exercise rights can be justified by only “the gravest abuses, endangering paramount [state] interests” (quoting Thomas v. Collins, 323 U.S. 516, 530 (1945))).
Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. §§ 2000bb to 2000bb-4 (1994)).
Pub. L. No. 106-274, 114 Stat. 803 (2000) (codified at 42 U.S.C. §§ 2000cc-1 to -5(2006)).
See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 437 (2006) (pointing out that the government had not advanced any argument as to why allowing a free exercise accommodation under the Religious Freedom and Restoration Act would cause the kind of “administrative harm” recognized as a compelling interest in earlier cases); Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) (mandating that when considering a prisoner’s free exercise claim under the Religious Land Use and Institutionalized Persons Act, courts take into account the burdens the accommodation imposes on non-beneficiaries).
Leiter , supra note 13, at 22 (quoting Rawls, A Theory of Justice, supra note 102 , at 215 ) .
Id. (quoting Mill , supra note 120, at 23).
406 U.S. 205 (1972).
See, e.g. , Beerheide v. Suthers, 286 F.3d 1179 (10th Cir. 2002) (finding a prison’s refusal to provide free kosher meals to claimants a violation of the First Amendment notwithstanding budgetary concerns).
Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) (holding that city ordinances prohibiting animal sacrifice violated free exercise principles).
Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) (rejecting the free exercise challenge to the government’s infringement on tribal sacred land).
See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (holding that employers with a religious objection to abortifacients cannot be required to include them in health insurance coverage).
Elane Photography, LLC v. Willock, 284 P.3d 428 (N.M. Ct. App. 2012).
Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013).
Leiter , supra note 13, at 162 n.11.
Stormans, Inc. v. Selecky, 844 F. Supp. 2d 1172 (W.D. Wash. 2012), appeal docketed , No. 12-35221 (9th Cir. Mar. 23, 2012); Morr-Fitz, Inc. v. Quinn, 976 N.E.2d 1160 (Ill. App. Ct. 2012).
See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) (holding that a “called” teacher was a “minister” under the ministerial exception, which barred teacher’s employment discrimination claim against her religious employer).
42 U.S.C. § 2000e-2(a) (2006).
Id. at 126.
Id. (Leiter’s exclamation point).
Interestingly, Leiter adds that the alternative sectarian schools in his hypothetical establishmentarian regime are funded by the state “in the manner of Britain.” Id. at 127. Does this suggest that our current system in which the government runs secular schools and (mostly) refuses to pay the costs of religious alternatives is intolerant?
Hunt, supra note 57, at 166.
Leiter , supra note 13, at 129-30.
Id. at 130.
Id. at 120-22.
See Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Bd. of Educ. of the Westside Cmty. Sch. v. Mergens, 496 U.S. 226 (1990); Widmar v. Vincent, 454 U.S. 263 (1981); see also Healy v. James, 408 U.S. 169 (1972) (applying a similar equal access principle to a radical political organization).
I discuss implications of the two meanings of “secular” in Michael W. McConnell, Reclaiming the Secular and the Religious: The Primacy of Religious Autonomy , 76 Soc. Res. 1333 (2009). See also Charles Taylor, The Polysemy of the Secular , 76 Soc. Res. 1143 (2009) (describing the developing and contested meanings of “secular” and noting that modern conceptions often emphasize some form of neutrality).
Leiter , supra note 13, at 129. To be sure, Leiter stops short of calling for an actual establishment of irreligion, but only because he has not (yet) “made the argument” that irreligion “is in fact a proper object of appraisal respect.” Id. That should not be a difficult argument for him to make, since the reason he regards religious beliefs as unworthy of appraisal respect revolves around the “falsity” of religion. See id. at 75-85. There is no indication Leiter believes irreligion is false.
Id. at 114-30.
Id. at 117.
Harris v. McRae, 448 U.S. 297, 319 (1980) (quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961)) (rejecting an Establishment Clause challenge to the denial of funding for abortions).
Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring).
McConnell, supra note 36, at 1444 (quoting 31 The Writings of George Washington, supra note 37 , at 93 n.65).
Berkley Center
Berkley Forum
The Debates Over Religious Freedom in the United States: What Debates?
By: James W. Fraser
February 13, 2020
Politics of School Prayer
Speaking on the 2020 Religious Freedom Day, January 16, President Donald Trump complained that “In public schools around the country, authorities are stopping students and teachers from praying, sharing their faith, or following their religious beliefs.” To combat this problem, the administration issued guidelines on when prayer was possible in schools and how student religious freedom rights should be respected. The new regulations seemed like one more volley in the growing national divide between defenders of religious activity and a feared liberal assault on the same…. Except that it wasn’t.
The first problem with the Trump complaint and the administration’s new guidelines is that the guidelines are very similar—indeed nearly identical—to guidelines issued by the administrations of George W. Bush and Bill Clinton. Both Clinton and Bush sought to resolve a three-decade culture war about prayer in schools that began with the Supreme Court’s 1962 Engel v. Vitale decision that banned officially sponsored prayer in schools. In fact, it was under Clinton and his Secretary of Education Richard Riley that the clearest guidelines came about. In 1995, the U.S. Department of Education issued guidelines saying that “Students therefor have the same right to engage in individual or group prayer and religious discussion during the school day as they do to engage in other comparable activity. For example, students may read their bibles or other scripture, say grace before meals, and pray before tests to the same extent they may engage in comparable nondisruptive activities.” President Clinton himself added that “the First Amendment permits—and protects—a greater degree of religious expression in public schools than many Americans now understand.”
In 1998 Secretary Riley expanded the guidelines to say:
"Generally, students may pray in a nondisruptive manner when not engaged in school activities or instruction, and subject to the rules that normally pertain to the applicable setting. Specifically, students in informal settings, such as cafeterias and hallways, may pray and discuss their religious views with each other...may also speak to, and attempt to persuade, their peers about religious topics...Students may also participate in before or after school events with religious content such as 'see you at the flag pole' gatherings."
Ironically, the 2020 guidelines, issued with such fanfare and a presidential provocation, say virtually the same thing—in some cases with the same words. (Although one wonders why the current administration dropped the word flag in the previous “see you at the flag pole.”) What is going on that in 2020, restating what has been settled bipartisan federal policy for 25 years has become fuel for a partisan fire that is raging in the country? The guidelines have remained pretty much the same through four administrations—two Republican and two Democratic. School districts generally follow these guidelines and when they don’t, it is often the liberal ACLU, not the Trump education department, that defends religious students. As both a liberal educator and a committed Christian (yes, people can be both), I strongly support these guidelines and the core First Amendment rights underpinning them. I also want them to be enforced for all students be they Christian, Jewish, Muslim, Hindu, Buddhist, Sikh, or “nones.” But something else is at stake with the fanfare surrounding the announcement of the Trump version of the old policies—at least two things:
I. President Trump depends on the voting support of conservative evangelical Christians. If the president can keep reassuring these voters that he is the only protector of their rights and that his opponents are a serious threat to them, then he once more solidifies this support in a presidential election year. It is unreasonable to assume that most people—religious or otherwise—will take the time to look up the previous Department of Education guidelines to note the similarities. If president Trump can convince conservative Christian voters that they need to look the other way about his many failings—moral and otherwise—because he is the only person standing between them and a liberal Democratic assault on their faith, he will be successful in holding an essential voting bloc. And, conversely, if the so-called “assault on faith” by liberals is seen to be a fabrication designed to blind voters, then Trump’s evangelical support may be in jeopardy. The new guidelines may be many things, but the Trump election year announcement of them is an effort to warp the truth to stay in power.
II. There may be more, however, to the high-profile roll-out of the new guidelines. The administration’s embrace of relatively non-controversial school policies provides cover for other policies which represent a dangerous infringement of rights. While the right of every public-school student to speak about their faith and to pray in appropriate settings must be secure, the administration is also developing policies that will seriously undermine rights. Human Rights Campaign President Alphonso David is on target when he says, “The right to believe and to exercise one’s faith is a core American value. The right to discriminate with taxpayer dollars is not.”
But in step after step, the administration is advancing the right to discriminate against women, people of color, LGBTQ citizens, and immigrants. When federal funding is made available to schools that discriminate on the basis of belief or when federal grants are made to community agencies that refuse services on the basis of ethnicity, sexual orientation, or conviction, that is discrimination with tax dollars. It is not defending rights, religious or otherwise. And when such policies are announced in tandem with religious freedom rights with a purpose of strengthening the belief that if not for Trump the core rights of people of faith would be under siege, the obvious conclusion is that retaining voting blocs is more important to the administration than any concern for the rights of American citizens, religious or otherwise. We are better than that.
About the Author
James W. Fraser
James W. Fraser is professor of history and education at the Steinhardt School of Culture, Education, and Human Development, New York University. He is the author or editor of 12 books including Between Church and State: Religion in Public Education in a Multicultural America (second edition, Johns Hopkins University Press, 2016).
Three Essays on Religion
Author: King, Martin Luther, Jr.
Date: September 1, 1948 to May 31, 1951 ?
Location: Chester, Pa. ?
Genre: Essay
Topic: Martin Luther King, Jr. - Education
In the following three essays, King wrestles with the role of religion in modern society. In the first assignment, he calls science and religion “different though converging truths” that both “spring from the same seeds of vital human needs.” King emphasizes an awareness of God’s presence in the second document, noting that religion’s purpose “is not to perpetuate a dogma or a theology; but to produce living witnesses and testimonies to the power of God in human experience.” In the final handwritten essay King acknowledges the life-affirming nature of Christianity, observing that its adherents have consistently “looked forward for a time to come when the law of love becomes the law of life.”
"Science and Religion"
There is widespread belief in the minds of many that there is a conflict between science and religion. But there is no fundamental issue between the two. While the conflict has been waged long and furiously, it has been on issues utterly unrelated either to religion or to science. The conflict has been largely one of trespassing, and as soon as religion and science discover their legitimate spheres the conflict ceases.
Religion, of course, has been very slow and loath to surrender its claim to sovereignty in all departments of human life; and science overjoyed with recent victories, has been quick to lay claim to a similar sovereignty. Hence the conflict.
But there was never a conflict between religion and science as such. There cannot be. Their respective worlds are different. Their methods are dissimilar and their immediate objectives are not the same. The method of science is observation, that of religion contemplation. Science investigates. Religion interprets. One seeks causes, the other ends. Science thinks in terms of history, religion in terms of teleology. One is a survey, the other an outlook.
The conflict was always between superstition disguised as religion and materialism disguised as science, between pseudo-science and pseudo-religion.
Religion and science are two hemispheres of human thought. They are different though converging truths. Both science and religion spring from the same seeds of vital human needs.
Science is the response to the human need of knowledge and power. Religion is the response to the human need for hope and certitude. One is an outreaching for mastery, the other for perfection. Both are man-made, and like man himself, are hedged about with limitations. Neither science nor religion, by itself, is sufficient for man. Science is not civilization. Science is organized knowledge; but civilization which is the art of noble and progressive communal living requires much more than knowledge. It needs beauty which is art, and faith and moral aspiration which are religion. It needs artistic and spiritual values along with the intellectual.
Man cannot live by facts alone. What we know is little enough. What we are likely to know will always be little in comparison with what there is to know. But man has a wish-life which must build inverted pyramids upon the apexes of known facts. This is not logical. It is, however, psychological.
Science and religion are not rivals. It is only when one attempts to be the oracle at the others shrine that confusion arises. Whan the scientist from his laboratory, on the basis of alleged scientific knowledge presumes to issue pronouncements on God, on the origin and destiny of life, and on man's place in the scheme of things he is [ passing? ] out worthless checks. When the religionist delivers ultimatums to the scientist on the basis of certain cosomologies embedded in the sacred text then he is a sorry spectacle indeed.
When religion, however, on the strength of its own postulates, speaks to men of God and the moral order of the universe, when it utters its prophetic burden of justice and love and holiness and peace, then its voice is the voice of the eternal spiritual truth, irrefutable and invincible.,
"The Purpose of Religion"
What is the purpose of religion? 1 Is it to perpetuate an idea about God? Is it totally dependent upon revelation? What part does psychological experience play? Is religion synonymous with theology?
Harry Emerson Fosdick says that the most hopeful thing about any system of theology is that it will not last. 2 This statement will shock some. But is the purpose of religion the perpetuation of theological ideas? Religion is not validated by ideas, but by experience.
This automatically raises the question of salvation. Is the basis for salvation in creeds and dogmas or in experience. Catholics would have us believe the former. For them, the church, its creeds, its popes and bishops have recited the essence of religion and that is all there is to it. On the other hand we say that each soul must make its own reconciliation to God; that no creed can take the place of that personal experience. This was expressed by Paul Tillich when he said, “There is natural religion which belongs to man by nature. But there is also a revealed religion which man receives from a supernatural reality.” 3 Relevant religion therefore, comes through revelation from God, on the one hand; and through repentance and acceptance of salvation on the other hand. 4 Dogma as an agent in salvation has no essential place.
This is the secret of our religion. This is what makes the saints move on in spite of problems and perplexities of life that they must face. This religion of experience by which man is aware of God seeking him and saving him helps him to see the hands of God moving through history.
Religion has to be interpreted for each age; stated in terms that that age can understand. But the essential purpose of religion remains the same. It is not to perpetuate a dogma or theology; but to produce living witnesses and testimonies to the power of God in human experience.
[ signed ] M. L. King Jr. 5
"The Philosophy of Life Undergirding Christianity and the Christian Ministry"
Basically Christianity is a value philosophy. It insists that there are eternal values of intrinsic, self-evidencing validity and worth, embracing the true and the beautiful and consummated in the Good. This value content is embodied in the life of Christ. So that Christian philosophy is first and foremost Christocentric. It begins and ends with the assumption that Christ is the revelation of God. 6
We might ask what are some of the specific values that Christianity seeks to conserve? First Christianity speaks of the value of the world. In its conception of the world, it is not negative; it stands over against the asceticisms, world denials, and world flights, for example, of the religions of India, and is world-affirming, life affirming, life creating. Gautama bids us flee from the world, but Jesus would have us use it, because God has made it for our sustenance, our discipline, and our happiness. 7 So that the Christian view of the world can be summed up by saying that it is a place in which God is fitting men and women for the Kingdom of God.
Christianity also insists on the value of persons. All human personality is supremely worthful. This is something of what Schweitzer has called “reverence for life.” 8 Hunan being must always be used as ends; never as means. I realize that there have been times that Christianity has short at this point. There have been periods in Christians history that persons have been dealt with as if they were means rather than ends. But Christianity at its highest and best has always insisted that persons are intrinsically valuable. And so it is the job of the Christian to love every man because God love love. We must not love men merely because of their social or economic position or because of their cultural contribution, but we are to love them because God they are of value to God.
Christianity is also concerned about the value of life itself. Christianity is concerned about the good life for every child, man, and woman and child. This concern for the good life and the value of life is no where better expressed than in the words of Jesus in the gospel of John: “I came that you might have life and that you might have it more abundantly.” 9 This emphasis has run throughout the Christian tradition. Christianity has always had a concern for the elimination of disease and pestilence. This is seen in the great interest that it has taken in the hospital movement.
Christianity is concerned about increasing value. The whole concept of the kingdom of God on earth expressing a concern for increasing value. We need not go into a dicussion of the nature and meaning of the Kingdom of God, only to say that Christians throughout the ages have held tenaciouly to this concept. They have looked forward for a time to come when the law of love becomes the law of life.
In the light of all that we have said about Christianity as a value philosophy, where does the ministry come into the picture? 10
1. King may have also considered the purpose of religion in a Morehouse paper that is no longer extant, as he began a third Morehouse paper, “Last week we attempted to discuss the purpose of religion” (King, “The Purpose of Education,” September 1946-February 1947, in Papers 1:122).
2. “Harry Emerson Fosdick” in American Spiritual Autobiographies: Fifteen Self-Portraits, ed. Louis Finkelstein (New York: Harper & Brothers, 1948), p. 114: “The theology of any generation cannot be understood, apart from the conditioning social matrix in which it is formulated. All systems of theology are as transient as the cultures they are patterned from.”
3. King further developed this theme in his dissertation: “[Tillich] finds a basis for God's transcendence in the conception of God as abyss. There is a basic inconsistency in Tillich's thought at this point. On the one hand he speaks as a religious naturalist making God wholly immanent in nature. On the other hand he speaks as an extreme supernaturalist making God almost comparable to the Barthian ‘wholly other’” (King, “A Comparison of the Conceptions of God in the Thinking of Paul Tillich and Henry Nelson Wieman,” 15 April 1955, in Papers 2:535).
4. Commas were added after the words “religion” and “salvation.”
5. King folded this assignment lengthwise and signed his name on the verso of the last page.
6. King also penned a brief outline with this title (King, “The Philosophy of Life Undergirding Christianity and the Christian Ministry,” Outline, September 1948-May 1951). In the outline, King included the reference “see Enc. Of Religion p. 162.” This entry in An Encyclopedia of Religion, ed. Vergilius Ferm (New York: Philosophical Library, 1946) contains a definition of Christianity as “Christo-centric” and as consisting “of eternal values of intrinsic, self-evidencing validity and worth, embracing the true and the beautiful and consummated in the Good.” King kept this book in his personal library.
7. Siddhartha Gautama (ca. 563-ca. 483 BCE) was the historical Buddha.
8. For an example of Schweitzer's use of the phrase “reverence for life,” see Albert Schweitzer, “The Ethics of Reverence for Life,” Christendom 1 (1936): 225-239.
9. John 10:10.
10. In his outline for this paper, King elaborated: “The Ministry provides leadership in helping men to recognize and accept the eternal values in the Xty religion. a. The necessity of a call b. The necessity for disinterested love c. The [ necessity ] for moral uprightness” (King, “Philosophy of Life,” Outline, September 1948-May 1951).
Source: CSKC-INP, Coretta Scott King Collection, In Private Hands, Sermon file.
© Copyright Information
If you're seeing this message, it means we're having trouble loading external resources on our website.
If you're behind a web filter, please make sure that the domains *.kastatic.org and *.kasandbox.org are unblocked.
To log in and use all the features of Khan Academy, please enable JavaScript in your browser.
US government and civics
Course: us government and civics > unit 3.
- The First Amendment
Freedom of religion: lesson overview
- Freedom of religion
Cases to know
Key takeaways, review questions, want to join the conversation.
- Upvote Button navigates to signup page
- Downvote Button navigates to signup page
- Flag Button navigates to signup page
Home — Essay Samples — Religion — Religious Freedom
Essays on Religious Freedom
Should religious studies be taught in schools, freedom of religion, made-to-order essay as fast as you need it.
Each essay is customized to cater to your unique preferences
+ experts online
Religious Freedom Controversies in Democratic Societies
Importance of religious freedom in the government systems, fundamental human right: religious freedom, religious freedom: the impact on children, let us write you an essay from scratch.
- 450+ experts on 30 subjects ready to help
- Custom essay delivered in as few as 3 hours
Critical Analysis of The Hobby Lobby Case
Same sex marriage and religious freedom, the existence of religious liberty, religious freedom and government's restrictions, get a personalized essay in under 3 hours.
Expert-written essays crafted with your exact needs in mind
A Question of Religion at Rhode Island
Abigail williams as a first seeker of religious freedom, the controversies around religious freedom in the united states, the reconciliation of religious freedom and gender equality in ontario’s family courts, you can get freedom through keeping god's covenant, the issue of religious freedom for lgbt community, benefits of immigrating to western countries: education, religious freedom and career, the rise of religious tolerance in protestant england in the mid to late 17th century, pluralism takes over religion: discussion, the fine line between religious freedom and discrimination, women's right to wear what they want: burkini ban, the right to freedom of religion: significance and controversies, freedom of religion: a cornerstone of liberty, the importance of freedom of religion, relevant topics.
- Creation Myth
- Religious Tolerance
- Religion Involvement of American Adolescents
- Religious Pluralism
- Religious Liberty
- Westboro Baptist Church
By clicking “Check Writers’ Offers”, you agree to our terms of service and privacy policy . We’ll occasionally send you promo and account related email
No need to pay just yet!
We use cookies to personalyze your web-site experience. By continuing we’ll assume you board with our cookie policy .
- Instructions Followed To The Letter
- Deadlines Met At Every Stage
- Unique And Plagiarism Free
Argumentative Essay on Religion
Here you have an argumentative essay on Religion with Pdf. Let’s Start!
Religion has been given different interpretations over time. Webster defines it as “the cause, principle, or principle of the beliefs held by zeal and faith”; Tyler (1871) describes it as belief in spiritual things. McNamara put it bluntly in the definition of religion in his statement, “Try to define religion and create conflict.” No matter what the number of meanings they have, all words have the same meaning in their meaning. It affects a personal way of life, sometimes meaning that it is part of one’s life and religion. This effect is due to a positive lifestyle, lifestyle, and energy, rather than being a barrier to religion. One can see this in the three major religions, Christianity, Buddhism, and Islam.
A summary of the history of the three religions shows how restrictive and oppressive it was for one follower. For both Catholics and Christians in the time of Jesus Christ, public declaration of one’s faith can be dangerous. Lyes (1998) states that Christians were considered criminals even though few understood why. Too often, Catholics separate themselves from practicing their faith. Says Haywood (2006), “Catholics had to practice their faith secretly, and priests were often smuggled from house to house, trying to get ahead of those who wanted the priesthood.” This situation referred to a time much later than that of Jesus Christ, when the people of England hunted for priests. The penalty for arrest is as severe as persecution.
The Muslims did not face such harsh punishments as the Christians. However, they were always considered goats, or those who should always be blamed for something unusual. This is due to the increase in population for Muslims, that Muslims are linked to terrorism, and so on. In the meantime, Buddhists have never faced such discrimination in their history. Stahl (2006) points out that Buddhists have never encountered what they call “missionary zeal” compared with other religions. Because of the specific punishments brought by faith, people find it difficult to express their feelings, such as finding peace and comfort in the personal sense of the word. Religion was restricting your freedom of speech and action.
As mentioned, religion helps to develop personal ability rather than hinders it. Soon in modern times, religious followers have been able to elevate themselves. Indeed, times have changed, though admittedly, religious discrimination still exists but not to a great extent. Christians, Buddhists, and Muslims alike are already using religion as a power source. Apart from being empowered, all religions have a human value, agreeing that each individual should be respected. Christians now have a strong belief in God and heaven, and the goal is to reach him. To achieve this goal, a person must be sensitive to their actions. In their belief in reincarnation, Buddhists have been used to treating one another with respect and dignity, fearing that the reincarnation will occur after their death. On the other hand, Muslims believe in Paradise being their partner and heaven. They think they must please their God, Allah, to enter Paradise.
Following their beliefs has helped shape each follower’s actions, regardless of religion. Vernon (2012) stated in his article that based on recent research, faith practices positively affect a person’s health. It empowered them to do good rather than evil. Fulfilling their full potential for believers can help in their spiritual lives. People’s faith in their religion, no matter how different, has become stronger and stronger, especially in modern times, despite the dark history of each religion. Times have changed dramatically, as religion plays a vital role in people’s lives.
Download Pdf of Argumentative Essay on Religion
If you want to Download the Pdf of Argumentative Essay on Religion then click on the given link it is free of cost.
Leave a Comment Cancel Reply
Your email address will not be published. Required fields are marked *
Save my name, email, and website in this browser for the next time I comment.
Notify me of follow-up comments by email.
Notify me of new posts by email.
- History Classics
- Your Profile
- Find History on Facebook (Opens in a new window)
- Find History on Twitter (Opens in a new window)
- Find History on YouTube (Opens in a new window)
- Find History on Instagram (Opens in a new window)
- Find History on TikTok (Opens in a new window)
- This Day In History
- History Podcasts
- History Vault
Freedom of Religion
By: History.com Editors
Updated: July 28, 2023 | Original: December 7, 2017
Freedom of religion is protected by the First Amendment of the U.S. Constitution, which prohibits laws establishing a national religion or impeding the free exercise of religion for its citizens. While the First Amendment enforces the “separation of church and state” it doesn’t exclude religion from public life. From the colonial era to present, religion has played a major role in politics in the United States. The U.S. Supreme Court over the years has ruled inconsistently on matters of religious freedom, such as the display of religious symbols in government buildings.
Religion In Colonial America
America wasn’t always a stronghold of religious freedom. More than half a century before the Pilgrims set sail in the Mayflower , French Protestants (called Huguenots) established a colony at Fort Caroline near modern-day Jacksonville, Florida .
The Spanish, who were largely Catholic and occupied much of Florida at the time, slaughtered the Huguenots at Fort Caroline. The Spanish commander wrote the king that he had hanged the settlers for “scattering the odious Lutheran doctrine in these Provinces.”
The Puritans and Pilgrims arrived in New England in the early 1600s after suffering religious persecution in England. However, the Puritans of Massachusetts Bay Colony didn’t tolerate any opposing religious views. Catholics, Quakers and other non-Puritans were banned from the colony.
Roger Williams
In 1635 Roger Williams , a Puritan dissident, was banned from Massachusetts. Williams then moved south and founded Rhode Island . Rhode Island became the first colony with no established church and the first to grant religious freedom to everyone, including Quakers and Jews.
As Virginia’s governor in 1779, Thomas Jefferson drafted a bill that would guarantee the religious freedoms of Virginians of all faiths—including those with no faith—but the bill did not pass into law.
Religion was mentioned only once in the U.S. Constitution . The Constitution prohibits the use of religious tests as qualification for public office. This broke with European tradition by allowing people of any faith (or no faith) to serve in public office in the United States.
First Amendment
In 1785, Virginia statesman (and future president) James Madison argued against state support of Christian religious instruction. Madison would go on to draft the First Amendment , a part of the Bill of Rights that would provide constitutional protection for certain individual liberties including freedom of religion, freedom of speech and the press, and the rights to assemble and petition the government.
The First Amendment was adopted on December 15, 1791. It established a separation of church and state that prohibited the federal government from making any law “respecting an establishment of religion.” It also prohibits the government, in most cases, from interfering with a person’s religious beliefs or practices.
The Fourteenth Amendment, adopted in 1868, extended religious freedom by preventing states from enacting laws that would advance or inhibit any one religion.
Religious Intolerance In the United States
Mormons , led by Joseph Smith , clashed with the Protestant majority in Missouri in 1838. Missouri governor Lilburn Boggs ordered that all Mormons be exterminated or expelled from the state.
At Haun’s Mill, Missouri militia members massacred 17 Mormons on October 30, 1838.
In the late nineteenth and early twentieth centuries, the U.S. government subsidized boarding schools to educate and assimilate Native American children. At these schools, Native American children were prohibited from wearing ceremonial clothes or practicing native religions.
While most states followed federal example and abolished religious tests for public office, some states maintained religious tests well into the twentieth century. Maryland , for instance, required “a declaration of belief in God,” for all state officeholders until 1961.
Landmark Supreme Court Cases
Reynolds v. United States (1878): This Supreme Court case tested the limits of religious liberty by upholding a federal law banning polygamy. The Supreme Court ruled that the First Amendment forbids government from regulating belief but not from actions such as marriage.
Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them to close their stores on Saturdays as well.
Sherbert v. Verner (1963): The Supreme Court ruled that states could not require a person to abandon their religious beliefs in order to receive benefits. In this case, Adell Sherbert, a Seventh-day Adventist, worked in a textile mill. When her employer switched from a five-day to six-day workweek, she was fired for refusing to work on Saturdays. When she applied for unemployment compensation, a South Carolina court denied her claim.
Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court case established the “Lemon Test” for determining when a state or federal law violates the Establishment Clause—that’s the part of the First Amendment that prohibits the government from declaring or financially supporting a state religion.
Ten Commandments Cases (2005): In 2005, the Supreme Court came to seemingly contradictory decisions in two cases involving the display of the Ten Commandments on public property. In the first case, Van Orden v. Perry , the Supreme Court ruled that the display of a six-foot Ten Commandments monument at the Texas State Capital was constitutional. In McCreary County v. ACLU , the U.S. Supreme Court ruled that two large, framed copies of the Ten Commandments in Kentucky courthouses violated the First Amendment.
Muslim Travel Bans
In 2017, federal district courts struck down the implementation of a series of travel bans ordered by President Donald J. Trump , citing that the bans—which discriminate against the citizens of several Muslim-majority nations—would violate the First Amendment’s Establishment Clause.
America’s True History of Religious Tolerance; Smithsonian.com . Religious Liberty: Landmark Supreme Court Cases; Bill of Rights Institute . First Amendment; Legal Information Institute .
Sign up for Inside History
Get HISTORY’s most fascinating stories delivered to your inbox three times a week.
By submitting your information, you agree to receive emails from HISTORY and A+E Networks. You can opt out at any time. You must be 16 years or older and a resident of the United States.
More details : Privacy Notice | Terms of Use | Contact Us
Elimu Centre
Education Centre
Argumentative Essay Topics On Religion
Christian argumentative essay topics, religion argumentative essay topics , argumentative essay topics about religion.
- Conclusion: Argumentative Essay Topics On Religion
Argumentative Essay Topics On Religion: Looking for Argumentative essay topics on religion? In this article, we have come up with religious Argumentative essay topics that will give a good base to write your essay.
Argumentative Essays also known as persuasive essays, give the author’s perspective about certain things and go ahead to justify and defend the issue.
When you choose one of the below topics you will be able to expound on the details by giving evidence and examples from life experiences, literature, and history.
1. Should religion be taught in schools?
2. Is the atheist group likely to end in the future?
3. Should catholic priests be allowed to marry?
4. Between Islam and Hinduism, which one has stricter beliefs?
5. Mohammed and Buddha who had better teaching?
6. Does Islam have more supporters and power than Hinduism?
7. Is polygamy in Islam a good thing?
8. Christians and Islam, which of these two groups have better moral habits?
9. What is the right age to become a pastor?
Read: Christian Debate Topics
10. Should freedom of worship be introduced to every part of the world?
11. Between the Bible and Quran which of these two religious books are mostly read?
12. Do Christians follow the instruction in the Bible?
13. Is behavior important in determining someone’s religious faith?
14. Who is better, someone who prays often or someone who does good deeds?
15. Is the Bible the most important tool in a Christian’s life?
16. Is it proper for people to change their religion each time they want?
17. Should schools have religious subjects in their curriculum?
18. Should praying in public in our schools be reintroduced?
19. Is there a link between increased moral decay in our schools and the removal of religious activity?
20. Do priests play any role in promoting good moral standards in society?
Find Also: Christian Persuasive Speech Topics
1. Which is more important faith or works?
2. Which is the 7 th day, Saturday or Sunday?
3. Who was worse, Cain or Judas?
4. Can persecution of Christians lead to the extinction of Christianity?
5. Is it possible to distinguish between a false and true proa phet of God?
6. Should all churches unite and become one?
7. Between Moses and Abraham, who is the most influential?
8. Should teenagers be allowed to have a church wedding?
9. Is there life after earth?
10. Is it okay to cohabit before you do a church wedding?
11. Can the Bible be referred to as the most popular book in the world?
12. What makes people change to another religion?
13. What is the right age for someone to marry?
14. Is material wealth important to a Christian?
15. How often should a Christian pray?
16. Do angels exist in the current world?
17. Is going to church important?
18. Is sex before a wedding day right or wrong?
19. Have the 10 commandments been altered?
20. At what age should one be ordained as a pastor?
Read: Medical Compare and Contrast Essay Topics
1. Does religion have a role to play in extreme groups and terrorists?
2. Is religion in modern society fulfilling its intended role?
3. According to Christian standards is gay marriage acceptable?
4. Is there any fulfillment in knowing there is life after death?
5. Does being associated with certain religions make you a content human being?
6. Is praying in faith a safer substitute for conventional medicines?
7. Are all calamities associated with the sinful nature of man?
8. Are there any challenges faced by interfaith families?
9. Do parents’ religious faith affect their children in any way?
10. Are there any religious practices that have been passed over time?
11. Should the church be involved in state matters?
12. Is cloning religiously correct?
13. In Christianity is the slave trade acceptable?
14. Is it proper to marry a person of different religious background?
15. Should religion set guidelines on whom to marry?
16. Should the church officiate same-sex marriages? Why?
17. Currently, is the church playing its golden rule of upholding morality?
Read: Argumentative Essay Topics about Mental Health
1. Are the religious movements impacting society?
2. The impact of the story of Jesus on the Christian life.
3. The Origin of Buddhism
4. The importance of the book of Genesis.
5. Is there common ground between religion and science
6. Who has impacted the world more, Islam or Christianity
7. Are some of the current Christian religious practices adopted from ancient pagan religion
8. What is the origin of Christmas? Was it Biblical?
9. Life after death, is it assured to everyone?
Read: Argumentative Essay Topics about Animals
10. Is the belief in purgatory Biblical?
11. How often should a person forgive?
12. Is Jesus the only way to heaven?
13. We are all descendants of Adam and Noah?
14. Jacob was better than Esau?
15. Is Jerusalem the most religious city in the world?
16. Are there any similarities between Christianity and Islam?
17. How important are the mosques to Islam?
18.. Participation of the religious group in maintaining international peace
19. The relevance of religion in education.
20. Is prayer and fasting important to a believer?
Read: Argumentative Essay Topics on Social Media
Argumentative Essay on Religion
1. Is it possible to have one religion in the world?
2. Will the world end in destruction?
3. Between Rachel and Leah who was the better wife to Jacob?
4. Does science have any role in Christianity?
5. What is a generation in the Bible?
6. Is it okay to eat any type of food?
Read: LGBT Argumentative Essay Topics
7. Should religion predict the mode of dressing for its followers?
9. Is it justified to alter the Bible in any way?
10. Should Christian drink alcohol?
11. Is possible to be a true Christian and never pray?
12. What does it mean to have an idol in Christian life?
13. According to religious books is abortion a crime?
14. If you were to seek counseling sessions would you go to a Priest, Imam, or Monk?
15. How do Christians take abortion, and it is right to carry out an abortion?
16. Can faith in God improve one’s emotional and mental wellness?
Read: Informative Speech Topics about Education
Conclusion: Argumentative Essay Topics On Religion
As you write your Argumentative Essay Topics On Religion, ensure you have selected the appropriate topic. Begin with an introduction before you start discussing your main point in the main body. Support your work with good evidence and ensure the points are clear. Lastly, summarize your essay by mentioning your main points in the conclusion section. Let the topic acts as the face of your essay. A good essay topic will attract readers therefore choose an eye-catching topic that you will be able to dig deep into and give relevant information.
Betty is a qualified teacher with a Bachelor of Education (Arts). In addition, she is a registered Certified Public Accountant. She has been teaching and offering part-time accounting services for the last 10 years. She is passionate about education, accounting, writing, and traveling.
- Election Integrity
- Immigration
Political Thought
- American History
- Conservatism
- Progressivism
International
- Global Politics
- Middle East
Government Spending
- Budget and Spending
Energy & Environment
- Environment
Legal and Judicial
- Crime and Justice
- Second Amendment
- The Constitution
National Security
- Cybersecurity
Domestic Policy
- Government Regulation
- Health Care Reform
- Marriage and Family
Religious Liberty
- International Economies
- Markets and Finance
Why Does Religious Freedom Matter?
Select a Section 1 /0
Religious liberty and a thriving religious culture are defining attributes of the United States, characterizing the American order as much as its political system and market economy. [1] From the earliest settlements of the 17th century to the great social reform causes led by religious congregations in the late 19th century and again in the 20th century, religion has been a dominant theme of American life.
Today, almost 90 percent of Americans say that religion is at least “somewhat important” in their lives. [2] About 60 percent are members of a local religious congregation. [3] Faith-based organizations are extremely active in providing for social needs at home and in sending aid abroad.
Why does religious liberty matter—to America and to the world?
Freedom of religion is a cornerstone of the American experiment. That is because religious faith is not merely a matter of “toleration” but is understood to be the exercise of “inherent natural rights.” As George Washington once observed: “[T]he Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.” And “what is here a right towards men, is a duty towards the Creator,” James Madison wrote in his 1786 Memorial and Remonstrance . “This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.”
The model of religious liberty brilliantly designed by Madison and the other American Founders is central to the success of the American experiment. It is essential to America’s continued pursuit of the ideals stated in the Declaration of Independence, the ordered liberty embodied in the Constitution, and peace and stability around the world.
The key to America’s religious liberty success story is its constitutional order. The Founders argued that virtue derived from religion is indispensable to limited government. The Constitution therefore guaranteed religious free exercise while prohibiting the establishment of a national religion. This Constitutional order produced a constructive relationship between religion and state that balances citizens’ dual allegiances to God and earthly authorities without forcing believers to abandon (or moderate) their primary loyalty to God.
This reconciling of civil and religious authorities, and the creation of a Constitutional order that gave freedom to competing religious groups, helped develop a popular spirit of self-government. All the while, religious congregations, family, and other private associations exercise moral authority that is essential to maintaining limited government. The American Founders frequently stated that virtue and religion are essential to maintaining a free society because they preserve “the moral conditions of freedom.” [4]
Religion and good morals are the only solid foundation of public liberty and happiness. – Samuel Adams October 16, 1778
Today, the religious roots of the American order and the role of religion in its continued success are poorly understood. One source of the confusion is the phrase “separation of church and state,” a phrase used by President Thomas Jefferson in a widely misunderstood letter to the Danbury Baptist Association of Connecticut in 1802. [5] Many think this means a radical separation of religion and politics. Some have gone so far as to suggest that religion should be entirely personal and private, kept out of public life and institutions like public schools.
That is incorrect: Jefferson wanted to protect states’ freedom of religion from federal government control and religious groups’ freedom to tend to their internal matters of faith and practice without government interference generally. Unfortunately, Jefferson’s phrase is probably more widely known than the actual text of the Constitution’s First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
The American model of religious liberty takes a strongly positive view of religious practice, both private and public. While it does not mean that anything and everything done in the name of religious liberty is not subject to the rule of law, it does mean that the law ought to make as much room as possible for the practice of religious faith. Far from privatizing religion, it assumes that religious believers and institutions will take active roles in society, including engaging in politics and policy-making and helping form the public’s moral consensus. In fact, the American Founders considered religious engagement in shaping the public morality essential to ordered liberty and the success of their experiment in self-government.
Defying predictions that political and social progress would eventually marginalize religion, religious belief and practice remain widespread and vibrant around the world.
“The very things that were supposed to destroy religion—democracy and markets, technology and reason—are combining to make it stronger,” write the authors of a book about religion’s persistence in culture and politics around the world. [6]
In this era—as in all prior human history—God has occupied the thoughts of man. Conscience, the mystery of existence, and the prospect of death challenge every human being to grapple with questions of transcendence and divine reality.
Religious freedom recognizes the right of all people to pursue these transcendent ends. This right is granted not by government but by the Creator. By respecting it, a government acknowledges that such ultimate issues are outside its jurisdiction, and that conscience is answerable to a higher authority than the law of the land. Individuals and institutions should be free to believe and to act in response to divine reality.
Because religious liberty is the bedrock for all human freedom, it provides a sturdy foundation for limited government. Liberty of conscience demands, and ultimately justifies, limited government.
Conversely, limited government requires individual responsibility. Freedom engages the moral responsibility of each and every person. In a free society, religion is an ally of good government as it forms the moral character of individuals and communities.
Religious freedom is a fundamental human right that ought to be enjoyed by the people of all nations. This principle has been recognized in the 1948 Universal Declaration of Human Rights and subsequent international agreements. Despite widespread recognition, many people are unable to exercise this basic liberty.
Even with religion’s global prevalence, religious freedom is far from universally respected. About a third of the world’s nations restrict religion to a high or very high degree, according to the Pew Forum on Religion & Public Life. Seventy percent of the world’s population lives in these countries. [7]
In some cases, totalitarian governments have oppressed religious individuals and groups generally. In others, statist regimes built on an established religion have persecuted religious minorities.
Countries designated by the U.S. State Department as “countries of particular concern” because they restrict religious freedom (such as North Korea, Iran, and Burma) suffer in other ways as well. They also tend to have the least economic liberty—and some of the worst economic outcomes.
On the other hand, governments that respect religious liberty tend to respect other freedoms as well. Religious freedom is strongly related to political liberty, economic freedom, and prosperity. As one researcher of international religious liberty notes, “[W]herever religious freedom is high, there tends to be fewer incidents of armed conflict, better health outcomes, higher levels of earned income, and better educational opportunities for women.” [8]
The 1998 International Religious Freedom Act made religious liberty an official part of U.S. foreign policy. The United States committed to promote freedom of religion as “a fundamental human right and as a source of stability for all countries” and to “identify and denounce regimes” that engage in persecution on the basis of religion.
Condemning and curtailing religious persecution is a critical goal, but religious freedom includes much more. Our vision of religious liberty must be robust.
Attempts to relegate religion to private life or to prevent religious institutions from conducting their business according to their beliefs threaten this fundamental freedom. Religious individuals and institutions should be free to exercise their religious belief within their private spheres as well as to engage publicly on the basis of religion. Believers should be free to persuade others to embrace their beliefs. Individuals should be able to leave or change their religion without fear of reprisal, and all should have the right to protection under the rule of law regardless of belief.
The church must be reminded that it is not the master or the servant of the state, but rather the conscience of the state. It must be the guide and the critic of the state, and never its tool. – Martin Luther King, Jr. 1963
The most secure and consistent protection for religious liberty needs to be rooted in constitutional government. U.S. public diplomacy can support the development of such robust religious freedom by telling America’s success story.
That requires that U.S. policymakers understand and be able to articulate the role of religion in the American constitutional order. In the 21st-century war of ideas, U.S. public diplomacy must rely on the bedrock of American founding principles in the fight against potent ideologies that present strong, coherent, and deeply misguided explanations of the nature and purpose of human existence. Evaluating religious dynamics around the world should become a regular function of analysis, and articulating the role of religion in the U.S. should be a consistent feature of communications strategy.
Religion and traditional morality continue to play a significant role in American public life. Most Americans continue to attach great significance to religious faith and practice, marriage, family, and raising children in a morally rich and supportive environment—values shared in many highly religious societies around the world.
Religious freedom is the birthright of all people, but too few governments around the world acknowledge it and far too many people have never enjoyed it.
One of the gifts of providence to the United States is a Constitution that has successfully safeguarded this fundamental right. It is a gift Americans should cherish and a model for all throughout the world.
Jennifer A. Marshall is Director of the Richard and Helen DeVos Center for Religion and Civil Society at The Heritage Foundation .
Enduring Truths
- George Washington, Letter to the Hebrew Congregation at Newport, Rhode Island The first president’s letter to this Hebrew Congregation—and by extension to one of the most persecuted religious groups in world history—eloquently articulates the American position that religious liberty is not merely a matter of tolerance but is an inherent right to be guaranteed by government.
- Gerard V. Bradley, Religious Liberty in the American Republic In this monograph, Bradley explains the Founders’ view of the relationship between religion and politics, and demonstrates how the Supreme Court radically deviated from this view in embarking on a project aimed at the secularization of American politics and society.
- J. D. Foster and Jennifer A. Marshall, “ Freedom Economics and Human Dignity ” The way we talk about freedom in the economic sphere tends to overlook the aspects of human experience that transcend the material. This essay explains how economic freedom helps order our lives together in a way that reflects the nature of man, the purpose of human life, and the satisfying of material needs and wants.
Current Issues
- PROMOTING RELIGIOUS LIBERTY. Thomas Farr, Ph.D. and Ambassador Terry Miller, “ Diplomacy in an Age of Faith: How Failing to Understand the Role of Religion Hinders America’s Purposes in the World ,” December 17, 2008. Farr and Miller argue that the American foreign affairs establishment has failed to grasp the significance of the resurgence of public religion around the world. As a result, it has missed an opportunity to incorporate the advancement of international religious freedom and the promotion of religious liberty into the general freedom agenda. This missed opportunity has harmed our interests.
- DEFAMATION OF RELIGION. Steven Groves, “ Why the U.S. Should Oppose ‘Defamation of Religions’ Resolution at the United Nations ,” November 10, 2008. The United Nations, with the backing of the Organization of the Islamic Conference, seeks to promote the concept of “defamation of religion,” which would establish an international ban on any speech that would insult, criticize, or disparage any religion. But the First Amendment to the Constitution protects the freedom of religion, which includes the right both to follow a faith and to criticize it. Groves demonstrates that the U.S. must oppose any effort to make “defamation of religion” part of U.S. law, and must resist spread of this concept inside the U.N. system.
- PUBLIC DIPLOMACY. Jennifer A. Marshall, “ Religious Liberty in America: An Idea Worth Sharing Through Public Diplomacy ,” January 15, 2009. U.S. public diplomacy seeks to impart to foreign audiences an understanding and appreciate of American ideals, principles, and institutions. In the United States, religious freedom is compatible with a positive and public role for religion. This is an American success story that should be told around the world. Marshall shows that, if public diplomacy is to play its full role in advancing American interests and ideals, it must systematically address both the role of religion and religious audiences.
Download the Report:
- PDF (Black and White)
- PDF (Color)
[1] Michael Novak, The Spirit of Democratic Capitalism (New York: Madison Books, 1991), p. 16.
[2] Pew Forum on Religion & Public Life, “U.S. Religious Landscape Survey: Religious Beliefs and Practices: Diverse and Politically Relevant,” June 2008, p. 22, at http://religions.pewforum.org/pdf/report2-religious-landscape-study-full.pdf (November 16, 2010).
[3] Pew Forum on Religion & Public Life, “U.S. Religious Landscape Survey: Religious Beliefs and Practices: Diverse and Politically Relevant,” pp. 36 and 39.
[4] Thomas G. West, “Religious Liberty,” Claremont Institute, January 1997, at http://www.claremont.org/writings/970101west.html (November 16, 2010).
[5] Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State (New York: New York University Press, 2002).
[6] John Micklethwait and Adrian Wooldridge, God Is Back: How the Global Revival of Faith is Changing the World (New York: Penguin, 2009), p. 12.
[7] Pew Forum on Religion & Public Life, “Global Restrictions on Religion,” December 2009, at http://pewforum.org/Government/Global-Restrictions-on-Religion.aspx (December 6, 2010).
[8] Brian Grim, “Religious Freedom: Good for What Ails Us?” The Review of Faith & International Affairs , Vol. 6, No. 2 (Summer 2008).
Former Senior Visiting Fellow
The moral and religious beliefs of individuals and organizations should be respected in law.
Learn more policies that protect right of conscience in everyday living with Solutions .
Download Our “What You Need To Know About Religious Freedom” Guide Here .
COMMENTARY 2 min read
LEGAL MEMO About an hour read
COMMENTARY 3 min read
Subscribe to email updates
© 2024, The Heritage Foundation
The Importance of Religious Freedom
Freedom of religion essay introduction.
Religious freedom is a vital human right that should be ensured in all democratic nations. Without the freedom to worship or not to worship, it would be difficult to preserve other freedoms that society holds dear in America. It is for this reason that the U.S. Constitution supports the precise separation of the state and church. Moreover, the majority regard the United States as a light to the entire world serving a great example of the ethical standards that other nations should also uphold.
Since the establishment of this right, individuals of various religious confessions have often suffered discrimination mostly because of their religious beliefs. The struggle to protect religious liberty has long been closely linked to the civil rights movement. Over the past years, advocates of civil liberties and rights have repeatedly fought the attempts to restrict free religious expression and break the wall between the state and church (“Why You Should Care about Religious Freedom”, 2013).
Freedom of Religion Essay Body Paragraphs
Religious freedom benefits anyone since it creates conditions for development, peace, democratization, and other fundamental human rights. Unfortunately, nowadays, there are various instances throughout the world where violations of this most important human right occur. The protection and promotion of religious freedom is not a matter of the church’s self-interest. A lack of religious freedom generates social and economic discrimination. It decreases humans’ abilities to become agents and come together for peaceful changes. In addition, it may cause extremism and inter-community tension. If religious freedom is rejected, human prosperity and development are worsened. Upholding and promoting religious freedom is an important practice for the church to decline poverty as well as achieve development and democratization.
Contemporary policymakers have long sidelined the promotion of religious liberty as a niche concern. However, its significance cannot be understated. The opportunity to trust and distrust enables individuals to think critically and be assured in a matter of choice as opposed to restricting. A society that respects religious liberty also allows different claims of truth to compete with each other creating an atmosphere of civil respect, transparency, and debates. Regarding the basic role of religion in the culture, it makes sense to believe that a way the society treats religious assurance helps to identify its perception of human freedoms more widely.
Client's Review
" I ordered a cheap essay on this website. Guys, I was so surprised the essay was written better than I thought it'd be. "
Sara J. reviewed EliteWritings on August 15, 2018, via SiteJabber Click to see the original review on an external website.
The U.S. model of religious liberty takes a strongly positive view of public and private religious practices. It does not mean that everything completed in the name of religious liberty is not subject to the rule of laws. However, it does indicate that the law should create as many opportunities as possible for the practice of religious faith. It is supposed that institutions and religious believers will take active participation in the life of society helping generate the public’s moral consensus and engaging in policy-making. In reality, the Founding Fathers of the United States regarded the religious engagement in generating the public morality as a vital aspect to ordered liberty and the success of their experience in self-government (Marshall, 2010).
Freedom of Religion Essay Conclusion
In modern times, religion continues to play a significant role in America’s public life. The majority of Americans continue to attach great importance to the religious practice and faith, family, raising children, and marriage in a morally supportive and prosperous environment. These values are shared in most of the highly religious nations throughout the world. Today, people regard religious freedom as their birthright. However, just a few governments around the world recognize it and far too many individuals have never enjoyed it. For many years, the U.S. Constitution has successfully safeguarded the fundamental human right of religious freedom. It is a good example for all human beings throughout the world and, undoubtedly, a great gift for the American nation that they should cherish to achieve the glorious future.
More About Persuasive Essay Writing
- What is the purpose of a persuasive essay ?
- How to write a persuasive essay ?
- What persuasive essay topics were good in 2016 ?
- How to choose good persuasive essay topics in 2020 ?
Free Persuasive Essay Examples from Elite Essay Writers
Argumentative, book report, environment, evidence-based practice, informative, please notice.
Some text in the modal.
IMAGES
VIDEO
COMMENTS
Argumentative Essay On Freedom Of Religion. 948 Words4 Pages. "Religious liberty might be supposed to mean that everybody is free to discuss religion. In practice, it means that hardly anybody is allowed to mention it.". ― G.K. Chesterton. Many occasions in the United States history have shown that religion has caused many controversial ...
A needed Argument. The first thing to note is that the dignity and the freedom of the human person should receive primary attention since they pertain to the goods that are proper to the human spirit. As for these goods, the first of which is the good of religion, the most important and urgent demand is for freedom.
Freedom of religion is essential for the protection of individual rights. People should have the freedom to practice and express their religious beliefs. Because of differences in religious traditions, some practices may interfere with others. In some cases, religious practices may be incompatible with contemporary social norms and practices.
Conclusion. Freedom of religion is a fundamental human right that is essential for the promotion of peace, social harmony, and individual well-being. This right is enshrined in international law and is crucial for fostering diversity, inclusivity, and respect within societies. The protection of freedom of religion is imperative for addressing ...
Introduction. The right to freedom of religion is a fundamental human right that plays a pivotal role in shaping personal and societal values. In this essay, we will delve into the significance of this right and how it can be harnessed to promote both personal and social growth.
Introduction. Religious beliefs have always generated controversy.But religious freedom—the right of individuals and groups to form their own religious beliefs and to practice them to the extent consistent with the rights of others and with fundamental requirements of public order and the common good—has long been a bedrock value in the United States and other liberal nations.
Politics of School Prayer. Speaking on the 2020 Religious Freedom Day, January 16, President Donald Trump complained that "In public schools around the country, authorities are stopping students and teachers from praying, sharing their faith, or following their religious beliefs.". To combat this problem, the administration issued ...
Details. In the following three essays, King wrestles with the role of religion in modern society. In the first assignment, he calls science and religion "different though converging truths" that both "spring from the same seeds of vital human needs.". King emphasizes an awareness of God's presence in the second document, noting that ...
Prayer that does not advocate the beliefs of a specific religion but that acknowledges the existence of a divine being. secular. Nonreligious or unaffiliated with religion. "wall of separation" between church and state. A phrase coined by Thomas Jefferson in an 1802 letter, which described his view that there should be complete separation ...
Argumentative Essay On Freedom Of Religion 948 Words | 4 Pages "Religious liberty might be supposed to mean that everybody is free to discuss religion. In practice, it means that hardly anybody is allowed to mention it." ― G.K. Chesterton Many occasions in the United States history have shown that religion has caused many controversial ...
Freedom of Religion. 2 pages / 693 words. Religious freedom is a fundamental principle that has been advocated for centuries. Nevertheless, it has not always been honored and protected. Today, many people are still denied the right to practice their religion freely, which infringes upon their basic human rights.
The Free Exercise Of Religion Essay. The free exercise of religion, the freedom of speech, and the freedom of assembly are each absolutely essential for the health of our Republic. That is why the Founding Fathers enshrined them all in the First Amendment. While some people up hold the first amendment and respect its meaning.
Essay On First Amendment. The First Amendments is a blessing that the United States is fortunate enough to have. First and foremost, First Amendment protects the right to freedom of religion and expression, without any government interference ("First Amendment" n.p.). The freedom of expression includes the right to free speech, press, assembly ...
The motive of the founders of the U.S. was to establish religious freedom in the colonies; therefore, religion was of importance to them. When the policy of the separation of church and state was enacted by the founding fathers through the Constitution, it meant that under a secular government, religious freedom would always be protected.
Here you have an argumentative essay on Religion with Pdf. Let's Start! Religion has been given different interpretations over time. Webster defines it as "the cause, principle, or principle of the beliefs held by zeal and faith"; Tyler (1871) describes it as belief in spiritual things. McNamara put it bluntly in the definition of ...
Getty Images. Freedom of religion is protected by the First Amendment of the U.S. Constitution, which prohibits laws establishing a national religion or impeding the free exercise of religion for ...
Conclusion: Argumentative Essay Topics On Religion As you write your Argumentative Essay Topics On Religion, ensure you have selected the appropriate topic. Begin with an introduction before you start discussing your main point in the main body. Support your work with good evidence and ensure the points are clear.
Religious freedom is a fundamental human right that ought to be enjoyed by the people of all nations. This principle has been recognized in the 1948 Universal Declaration of Human Rights and ...
The motive of the founders of the U.S. was to establish religious freedom in the colonies; therefore, religion was of importance to them. When the policy of the separation of church and state was enacted by the founding fathers through the Constitution, it meant that under a secular government, religious freedom would always be protected.
Freedom of Religion Essay Introduction. Religious freedom is a vital human right that should be ensured in all democratic nations. Without the freedom to worship or not to worship, it would be difficult to preserve other freedoms that society holds dear in America. It is for this reason that the U.S. Constitution supports the precise separation ...
Damon Fowler's Argumentative Essay: Religious Freedom In Public Schools. Damon Fowler, a juvenile protestant against religious activities, expressed his perspective of religious affairs before an upcoming graduation ceremony. Thus, his acts to stop the forthcoming religious practice that would have occurred during the ceremony took place, and ...
Argumentative Essay On Religious Freedom. Religious freedom is one of the rights explicitly protected by our country's Constitution. In the First Amendment, any establishment of a state sponsored religion or restriction on the free practice of an individual's religion is specifically prohibited. Despite this specificity, there are still ...
Argumentative Essay On Race And Religion. One fish, two fish, red fish, blue fish, I wish that society would overcome the crippling and arbitrary views on race and religion. The very concept of dividing and separating members of the humanity based on color and nationality is asinine given that race is a social construct.