Tag Archives: Freedom of religion

Religious Freedom & Discrimination

Sexuality confusion

(Photo credit: Wikipedia)

As this is being written, the Employment Non-Discrimination Act passed in the Senate and is awaiting the consideration of the House. This bill would protect employees from being fired based on their sexual orientation or gender identity. The bill exempts businesses that have less than 15 employees, religious non-profits, government owned businesses and businesses owned by Native American tribes.

Speaking against this bill, Republican Senator Dan Coats claimed that it violates the religious freedom of businesses owners. In making his case, he used the example of how faith-based daycare providers “could be forced to hire individuals with views contrary to the faith incorporated values of the daycare providers.” He also raised the concern that the bill also violated the right to free speech because it would “also would allow employers to be held liable to workplace environment complaints opening the door to the silencing of employees who express their deeply held beliefs.” There are two general issues here that I will address in turn.

The first issue is whether or not forbidding discrimination on the basis of sexual orientation or gender identity is a violation of the religious freedom of business owners.

Business owners do not lose their right to religious freedom just because they own a business. As such, they are free to hold to whatever religious belief (or disbelief) that they wish. However, the law can justly limit how they can act on those beliefs. For example, a person can freely worship a deity that they believe demands human sacrifice but they should not be granted an exemption in regards to the laws against murdering humans. In this case, the harms that would arise by allowing human sacrifice outweigh concerns about religious freedom. That is, the right of people not to be murdered trumps the right of people to freely exercise their faith.

In the case of the anti-discrimination law, the core question is whether or not the right of the owner to act on his religious belief trumps the right of employees not to be discriminated against. It is, of course, assumed that employees have such a right—but it could be argued that there is no such right and that employers should have the right to fire anyone, anytime for any reason. In this case, any laws that limited this alleged right would be wrong—thus making it morally acceptable for people to be fired for being Christian, straight, blue-eyed, ugly, smart, black, white, or anything at all. Presumably this would also allow employees to be fired for not having sex with the boss. This, however, seems absurd. As such, it seems reasonable to assume that employees have a right to be protected against discrimination.

It could be argued that firing someone solely on the basis of sexual orientation or gender identification would not be discrimination. However, firing an employee solely because of her sexual orientation or gender identification would clearly seem to be discrimination by its very nature. After all, the person is being fired for a reason that is not relevant to the job in question. This would also apply to non-firing cases, such as underpaying an employee. Naturally, if a person’s behavior arising from her sexual orientation or gender identity did impact her job in relevant ways, then the employer could act against the employee without it being discrimination. But this would be acting based on the detrimental behavior, not the orientation or identity.

Thus, it comes down to whether or not an employer should have the right to fire, etc.  an employee solely for the reason that the employee has a sexual orientation or gender identity that the employer regards as being against his religious beliefs. Given that the employee is not providing any other justification for being fired, etc. the answer would seem to be “no.” After all, firing someone solely for his sexual orientation or gender identity would be on par with firing someone solely because he was a Christian or Latino. If the employer had a faith that involved regarding being a Christian as wicked or one that involved racism that would not provide an exemption. Crudely put, just because someone has a bigoted and prejudiced faith that does not thus warrant his acting on it.

As a final argument, there is the fact that the harm done to employees would exceed the harm being done to employers. The fact that a religious person might have to endure having gay, women, Christian or Asian employees creates far less harm than allowing employers to engage in discrimination. Thus, the right to religious freedom does not trump the right to not be discriminated against.

The second issue is whether or not the right to free speech protects employees expressing religious beliefs in the workplace when these expressions express discriminatory views against the sexual orientation or gender identity of employees.

This issue is, obviously, very similar to the previous one. In this case, the question is whether or not the right to free expression trumps the right to not be subject to discriminatory expressions in the workplace.

On the face of it, there generally seems to be no compelling reason why people would need to express their views about sexual orientation or gender identity while at work—even if someone had faith-based views of these matters that involved regarding, for example, being gay as wicked.  To use the obvious analogy, there seems to generally be no compelling reason why people would need to express their views about race while at work—even if they had faith based views on these matters that involved, for example, ideas of white supremacy. In contrast, expressing discriminatory views against the sexual orientation or gender identity of people in the workplace would create a hostile workplace and this would be a harm. As such, the right of freedom of expression does not seem to trump the right of people to not be subject to such expressions in the workplace.

Crudely put, requiring people to not engage in discriminatory expression (whether it is faith based or not) while in the workplace imposes less of a burden than requiring people to endure it in the workplace.

In regards to both issues, one could argue that certain sexual orientations or gender identities are such that they would warrant firing a person and also speaking out in the workplace against them. For example, firing a person from a daycare job because he is a pedophile or speaking out against pedophiles in the workplace would not seem to unjustly discriminate against pedophiles.

The question would then be whether or not the protected sexual orientations and gender identities are such that merely having one would warrant firing, etc. a person. In regards to the sexual orientations and gender identities covered by the bill, the answer would seem to clearly be “no.”

Thus, it would seem that religious freedom and free speech do not warrant workplace prejudice.

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Corporations & Religious Freedom II: That Person Thing

U.S Postage Stamp, 1957

(Photo credit: Wikipedia)

In my previous essay on corporations and religious freedom, I addressed the issue of whether or not being compelled to provide a health plan that covers contraception is a violation of a corporation’s religious freedom. My conclusion was that it was not. I now turn to the more general issue of whether or not a for-profit corporation is the sort of legal (fictional) entity that can be justly ascribed the capacity for religious belief and hence a right to exercise religious freedom.

As noted in the previous essay, the corporations that are challenging Obamacare on the matter of contraception are doing so on the legal basis of the is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.

Since the act applies to person who hold religious beliefs, it is tempting to simply assert that corporations are not people and hence not covered by the act. However, in the United States corporations are taken to be people in regards to the law.

In fact, the status of corporations as people was critical in the Citizens United ruling that banned restrictions on corporate spending in politics. The general idea is that since a corporation is a person and a person has a right to free speech, then a corporation has the right to free speech.

Given this precedent (and argument), it would certainly seem to follow that a corporation has the right to freedom of religion: Since a corporation is a person and a person has a right to freedom of religion, then a corporation has the right to freedom of religion. This would thus seem to settle the legal matter.

There is an easy and obvious way to reduce this sort of “corporations are people” reasoning to absurdity:

Premise 1: A corporation is a person (assumed).
Premise 2: Slavery is the ownership of one person by another.
Premise 3: The 13th Amendment to the United States Constitution forbids slavery.
Conclusion: The ownership of a corporation is forbidden by the constitution.

This seems completely airtight. After all, if corporations get the right to free speech and the right to religious freedom because they are persons, then they also get the right not to be owned because they are persons. Naturally, this will seem silly or absurd to the very people who easily embrace the notion of corporation personhood in the case of unlimited campaign spending. However, this absurdity is exactly the point: it is okay to own corporations because they are not, in fact, people. They also do not get the right to free speech or religious freedom because they are not, in fact, people.

It could be countered that corporations are very special sorts of people that get certain rights but can be denied other rights in a principled way. Obviously enough, those who own corporations and their defenders might be inclined to hold that corporations get the rights that are useful to the owners (like the right to free speech) but do not get a right that would be a serious problem—like the right not to be owned. However, there is a serious challenge in regards to doing this in a principled manner (and the principle of what is good for me is not a principled principle). That is, the problem is to show that corporations are entities that can justly be ascribed freedom of speech and freedom of religion, but not freedom from ownership. Ironically, as I will endeavor to argue, claiming that corporations are such that they can be justly ascribed the qualities needed to ground a right to freedom of religion would also seem to involve claiming that they have the qualities that would forbid ownership.

In order to exercise religion and thus be entitled to freedom of religion, an entity would seem to require the capacity for religious belief. Belief is, of course, an intentional mental state—a belief is about something and it is mental in nature (although the mental might be grounded in the physical, such as in a nervous system). Being legal fictions, corporations have no mental states and no intentional states. That is, a corporation has no beliefs—religious or otherwise. As such, a corporation is not entitled to freedom of religion—since it has no capacity for religious belief.

This could be countered by claiming that the owner of the corporation provides the intentional states of the corporation. In the case of religion, the religious beliefs of the owner are the religious beliefs of the corporation. Thus, the personhood of the corporation rests on the personhood of the owner. However, if the corporation has the identical mental states as the owner, then it is the owner and vice-versa. While this would handle the freedom of religion matter, it would entail that the corporation is not a separate person in regards to freedom of speech and that ownership of the corporation would be ownership of the owner. If the owner is the sole owner, this would be fine (a person can self-own)—but if the corporation is owned by stockholders, then there would be a problem here since owning people is unconstitutional.

It could be replied that the above is mere philosophical cleverness (as opposed to the legal cleverness that makes a corporation a person) and that the beliefs of a corporation are simply those of the owner.

The obvious problem is that this would entail that the corporation does not have a religious belief that it can exercise. To use an analogy, if the Supreme Court ruled that my left running shoe is a person that I own like a corporation and that thus has my religious beliefs as its own, this would obviously be madness. My shoe, like a corporation, does not itself have any beliefs—religious or otherwise. The mere fact that I own it and it is legally a person does not grant it the capabilities needed to actually possess the foundation for the right to religious freedom. Or speech, for that matter—thus also showing that the idea that corporations have the capability to engage in free speech is absurd. What they do is, in effect, serve as legal puppet “people” manipulated by the hands of actual people. Obviously, if I put an actual puppet on my hand, it is not a person. Likewise, if I create a legal entity as my puppet, it is still not an actual person—its beliefs are just my beliefs and its words are just my words.

The actual person who owns a corporation has the rights of a person—because she is a person. Thus, the owner of a corporation can contend that her religious freedom has been violated. But it is absurd to claim that a for-profit, secular corporation can have its religious freedom violated—it is simply not an entity that can have its own religious beliefs. This distinction between the owner and the corporation certainly seems fair. First, the owner still has all her rights. Second, having a distinction between the owner and the corporation is exactly the point of many of the laws government corporations (such as finances).

If someone insists on claiming that the corporation is not a legal puppet and that it has the capabilities that provide a foundation for these freedoms, then they would run afoul of the argument regarding the ownership of persons. After all, an entity that can hold religious beliefs would thus seem to be a person in a meaningful sense that would forbid ownership.

Thus, the dilemma seems to be this: if a corporation is a person and thus gains the rights of being a person, then it is unconstitutional to own a corporation. If a corporation is not really a person, then it is legal to own it but it is not entitled to the rights of a person, such as freedom of speech and freedom of religion.

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Corporations & Religious Freedom I: The Contraception Thing

English: A typical contraceptive diaphragm

(Photo credit: Wikipedia)

As this is being written, there are almost forty for-profit companies suing the United States government over the requirement in Obamacare that health plans include coverage of contraception. The basis for the lawsuit is that the requirement is a violation of religious freedom.  The company Hobby Lobby has attracted the media’s attention in this matter, serving as the “poster corporation” for this matter.

In the case of Hobby Lobby,  CEO David Green and his family claim that their and Hobby Lobby’s freedom of religion is being “substantially burdened” by being compelled to provide insurance that would cover “morning-after pills” and IUDs for employees who wanted such them. The Greens claim that these specific types of contraception prevent implantation of fertilized eggs and are thus equivalent to abortion, which they regard as being against their religious beliefs. There are also those who oppose contraception regardless of the type on religious grounds.

The legal foundation for this challenge is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.

From a moral standpoint, this exemption does seem acceptable if it is assumed that freedom of religion is a moral right. After all, there should be a presumption in favor of freedom and the state would need to warrant such an intrusion. However, if it can do so properly, then the imposition would be morally acceptable. The stock example here is, of course, limitations on the right of free speech.

From both a moral and legal standpoint, there seem to be two main points of concern. The first is whether or not a for-profit corporation is an entity that can be justly ascribed a right to freedom of religion. The second is whether or not such the contraceptive coverage imposes a substantial burden on the free exercise of religion. Obviously, if a corporation cannot be justly ascribed this right, then the second concern becomes irrelevant in this context. However, since it is a simpler matter, I will address the second concern first and then move on to the main point of interest regarding corporations and religious freedom.

For the sake of the discussion, I will assume that those bringing the lawsuit are sincere in their claim that contraception is against their religion and that this is not merely cover for an attack on Obamacare. I will also assume that their religious belief is about the use of contraception.

On the face of it, being compelled to follow the law would seem to not impose any substantial burden in regards to such a belief. After all, those impacted by the law are not required to use contraception. This would, of course, be a clear imposition on their freedom (religious and otherwise). They are also not required to directly give their employees contraception. This could be seen as an imposition by giving them a somewhat direct role in the use of contraception.  However, they are merely required to provide a health plan that covers contraception for those who are exercising their freedom to choose to use said contraception. As such, the burden seems minimal—if it exists at all.

It might be objected that to be forced to have any connection to a means by which employees could get contraceptives would be a significant imposition on the corporation. The rather obvious reply to this is that the corporations pay employees with money that can be used to buy contraceptives. So, if an employee would use contraception, then she would most likely just purchase it if it were not covered by her insurance. In cases where the contraceptive medicine is being used for medical reasons (as opposed to being used as contraception) the employee would probably be even more likely to purchase it (which raises the question of whether such use counts as using contraception in a way that would violate these religious beliefs).

As such, if a corporation can insist that health care plans not cover contraception on the grounds that they would be forced to play a role in situation in which an employee might get contraception by means connected to the corporation, it would seem that they could make the same claim in regards to the paychecks they issue. After all, paychecks might be used to acquire all manner of things that are against the religious views of the corporation’s owner(s). This is, of course, absurd and would be a clear violation of the rights and freedoms of the employees.

As such, the second issue is easily settled: being compelled to offer insurance that covers contraception is not a substantial burden on the religious beliefs of corporations. In my next essay I will turn to the more important issue, namely whether or not for-profit corporations are the sort of entities that can justly be ascribed religious beliefs (and thus be entitled to religious freedom).

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Splitting Marriage: Love Union

Author: Bagande

(Photo credit: Wikipedia)

In previous essays I argued in favor of splitting marriage by proposing theological unions (for the religious folks) and civil unions (to cover the legal contract aspect of marriage). However, there does seem to be one aspect of marriage left out, namely the matter of love.

On the one hand, it is sensible to not include the notion of love in marriage. After all, a couple that is getting married does not have to prove that they are in love. People who do not love each other can get married and people who do love each other (in the romantic sense) need not get married.

On the other hand, the notion of marriage for love does have a certain romantic appeal—fueled by literature and movies (if not reality). As such, it seems worthwhile to include a third type of marriage, namely the love union. While the romantic image is appealing, there is also a more substantive basis for the love union.

As noted in another essay, the theological union was proposed to allow people to exercise both freedom of religion and freedom from religion. As was noted in the essay after that, the civil union was proposed to handle the legal aspects of marriage. In the case of the love union, the purpose is to allow couples to create their own relationship bond (and rules) apart from that of religion and the state. That is, this is a relationship defined entirely by the couple. While the couple might involve others and have a ceremony, a love union would not be a theological union and would have no legal status.  That is, the rules are only enforced (or not) by the couple. Naturally, a love union can be combined with the other types. A couple could, for example, get a theological union at their mosque, get a civil union from the state, and then have an event with friends to announce their love union.

Given that the love union has no theological status or legal status, it might be wondered what it would actually do. The answer is, of course, that this would vary from union to union. However, the general idea is that the couple would define the aspects of their relationship that are not covered by theology (which might be all of it) and do not fall under the dominion of the state. This sort of definition might be something as simple as a declaration of eternal love to a fairly complex discussion of the nature of the relationship in terms of rights, expectations and responsibilities. While not every couple will want to establish a love union, this does seem like a good idea.

Love is, apparently, the least important aspect of marriage when it comes to the political debates over the matter. This might be a reflection of the reality of marriage (that it is about religion and legal rights) or a sign of misplaced values. Because of this, I thought I would at least give love a chance.

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Splitting Marriage: Theological Union

U.S Postage Stamp, 1957

(Photo credit: Wikipedia)

In my short book on same-sex marriage I make the suggestion that marriage be split up into different types. I thought it would be  worthwhile to write a bit more on this subject. While this suggestion might be regarded as satire (a rather inferior modest proposal) and I do tend to be a bit sarcastic, this is actually a serious proposal that I believe would solve some of the problems associated with the marriage issues.

While the acceptance of same-sex marriage has become mainstream in some Western countries, there are still those who strongly oppose it. While it is tempting to simply dismiss such people as mere bigots, it does seem worth considering that their values should be tolerated. Of course, even if a set of values should be tolerated on the grounds of the freedom of thought and belief it does not follow that those who have such values have the right to impose these values on others. In the case of those who oppose same-sex marriage, the fact that they consider it against their values does not entail that they have the right to make their values the law of the land.

Since nearly all (or all) of the resistance to same-sex marriage is based on religious beliefs, it is also worth considering the importance of the freedom of religion. While this is a sub-freedom of the more general freedom of thought and belief, it does seem worth considering religious freedom separately,  if only for historic reasons. Interestingly, some who oppose same-sex marriage contend that making same-sex marriage legal imposes on their religious freedoms. However, this is obviously not the case. Making same-sex marriage legal does not, by itself,  infringe on a person’s religious freedom. After all, the legality of same sex-marriage does not require that people get gay-married against their will (which would be a violation of  freedom).

It could be contended that the legality of same-sex marriage could violate a person’s religious freedom in that a person opposed to same-sex marriage who had some sort of official capacity involving marriage in some way might thus be required to recognize the legality of same-sex marriage. For example, a justice of the peace in a state where same-sex marriage is legal would be required to recognize the legality of same-sex marriage. As another example, the clerk who handles marriage licenses in a state where same sex-marriage is legal would also be required to recognize its legality. This is, of course, not unique to same-sex marriage. In the United States, officials refused (and sometimes still refuse) to accept marriage between people of different ethnic groups (typically a black person marrying a white person).

On the one hand, cases such as these can be seen as violation of a person’s religious freedom. Using the justice of the peace example, if Sally’s religious belief is that same-sex marriage is an abomination in the eyes of God, then compelling her to marry Jane and Denise would thus seem to violate her religious freedom. After all, she would be compelled to act contrary to her religious beliefs.

On the other hand, these cases can be seen as not violating a person’s religious freedom. After all, having religious freedom is rather distinct from having the right to impose one’s religious beliefs on other people. In the example, Sally would be imposing her religious view on Jane and Denise rather than exercising her freedom of religion. By not marrying another woman and by regarding such marriages as abominations, Sally would be exercising her freedom of religion.

This can be countered by insisting that Sally’s religious freedom is being violated. After all, as a justice of the peace she is required to act contrary to her faith and she should have the freedom to refuse to do so.

The obvious reply is that she does have the freedom to do so. She can quit her job as justice of the peace on the grounds of her faith. To use an analogy, suppose that Velma believes that eating pork is a abomination on religious grounds. If Velma works at Betty’s BBQ Pit, it is not a violation of her religious freedom for Betty to expect her to serve barbecued pork to the customers. Betty can exercise her freedom by quitting her job and getting one at Paul’s Porkless BBQ Pit.

A counter to this could be based on the argument that a person who regards something a seriously violating their religious views would be wrong to simply walk away. Rather, they should refuse to allow it to occur. Going back to the analogy, suppose that a law was passed allowing human slavery again. If Velma was working at Betty’s Slave Auction and she opposes slavery on religious grounds, it would seem rather problematic to claim that Velma should simply quit. Rather, she should surely try to get the law changed. To avoid any confusion, my point here is not to draw a moral comparison between same-sex marriage and slavery. Rather, the point of using slavery is to use something that should be seen as obviously wrong and that should not be tolerated. To those who oppose same-sex marriage, same-sex marriage is regarded as being something that is obviously wrong and that should not be tolerated.

The sensible reply here is to contend that same-sex marriage is not wrong. That is, that the religious people who oppose it on religious grounds are in error. Interestingly, the same reply has been given by the defenders of slavery, namely that it is not wrong.  Thus, a key part of the matter would involve sorting out the morality of same-sex marriage.

The easy and obvious way out is to note that legalizing same-sex marriage does not inflict any meaningful involuntary harm. In contrast, something like slavery obviously does inflict harm on people. As such, while a person would be right to prevent others from engaging in the practice of something like slavery, the same does not hold in the case of same-sex marriage. Even if same-sex marriage were wrong, the fact that it generates no harm to others would seem to entail that those who oppose same-sex marriage have no grounds on which to claim an obligation to prevent others from engaging in the activity. While saying “I have a moral right to stop you from practicing slavery because you are harming others” seems right, saying “I have a right to stop you from  marrying someone of the same-sex because it is against my religion” seems mistaken.

Thus, those who oppose same-sex marriage on religious grounds do not seem to have adequate justification to deny others legal marriage (that is, the legal relationship recognized by the state). However, the appeal to religious freedom might still be able to provide legitimate grounds for religious groups denying others a certain type of marriage. The key concerns are, of course, what sort of marriage this might be and what might warrant religious discrimination.

Obviously enough, a religious group does not have a legitimate right to deny other people the legal right to marry because the marriage is against their religion. However, voluntary religious groups (like other voluntary associations) do have the right to set certain rules for their members. For example, a tabletop gaming group can set rules about what expansion books are allowed in the game. As another example, a track club might define the rules for their grand prix. As a fourth example, a couple that is “going steady” might set rules about their relationship, such as it being monogamous. These rules are based on the beliefs of the members and typically have no legal status. For example, if Sam is “going steady” with Ted, Sam cannot have Ted arrested simply because he went on a date with Sally. Such rules are often used to help define the identity of the group and set what is regarded as acceptable and unacceptable behavior (such as playing a dragon as a character). Provided that such rules are voluntarily accepted and not harmful, there is certainly nothing wrong with groups having such rules.

Turning back to the main issue of marriage, it seems reasonable to allow voluntary religious associations to have their own rules for marriage, just as it is reasonable to allow gaming groups to determine whether they require their members to dress in character (as an elf wizard, for example). However, just as gaming groups do not have a right to impose their views on others (making everyone dress up as fantasy characters, for example) neither do religious groups. As such, the marriage rules of a religious group cannot have legal status. However, they can be voluntarily accepted by the members of the group.

This, as I have said before, could be called a “theological union.” It would be a religious marriage as defined by the religious group in question and could have all the rules and requirements that the group wishes to accept (subject to the law, of course). However, the marriage would have no legal status at all-that is, it would grant no legal rights nor impose any legal obligations.  So, for example, one church could forbid same sex theological unions while another could embrace them. People who do not agree with the theological unions of a group would be free to leave the group to join or create another that suits their values. Just as people can do so in other theological matters, such as whether or not women can be priests. Naturally, a couple that gets a theological union can also get a legal marriage (a civil union) that would give them all the legal rights and obligations as defined by the law.

Since these unions would have no legal status, there would be no discrimination in the legal sense and thus the specific rules of a religious group would not generally be a matter of concern for the state. This would respect religious freedom by allowing people to define their theological union rules as they see fit, without interference from the state. It would also respect the freedom from religion-that is, the right not to have other folks’ religion imposed on you. So, religious people who oppose same-sex marriage can say “if you are part of our religion that rejects same-sex unions, you cannot get same-sex theological unioned” but they cannot justly say “same-sex marriage is against my religion, so you can’t get a civil union that provides legally defined obligations and rights.”

This approach seems quite sensible, since it respects religious freedom while also protecting people from religious based impositions on freedom.

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Brian Leiter – “Should we respect religion?”

In Chapter IV of Why Tolerate Religion? Brian Leiter asks whether/why we should respect religion. The point here is to consider whether religion might merit something more than mere toleration, i.e. putting up with something that you don’t (necessarily) approve of.

At an earlier stage of the book, Leiter has argued that both Kantians and utilitarians have reasons to tolerate religious views and practices that they disapprove of. So far, so good – although Kantian and utilitarian moral theories are controversial, and I’d be looking for a rather different basis for toleration myself (I actually ground it in what I think many people, including many religious people, can see as the point or role of the institution of the state … but let’s skip over that).

Very well, let’s stipulate that there is some moral basis for tolerating religion, particularly in the sense of not bringing organised political power to bear (with fire, swords, police cars, jails, and so on) in an attempt to suppress it, even if we’re talking about a form of religion that we dislike. But Leiter wants to know whether we should be doing more than that, perhaps based on a claim that religion merits respect in some strong sense.

Here he offers what seems to me a useful discussion of respect. He leans on some terminology from Stephen Darwall, distinguishing between recognition respect and appraisal respect. Recognition respect is what I would simply call “respect” – i.e. recognising something’s properties that ought to be taken into account in some way, and moulding your behaviour so that you actually do take them into account in whatever is the appropriate way. Appraisal respect is more like deciding that something is worthy of esteem. (I’ve made a similar distinction many times, without being aware of Darwall’s 1977 article that Leiter refers to. I’m not the only one, as, irrespective of terminology, these different conceptions of respect are frequently discussed in one way or another. In an endnote, Leiter observes that Darwall’s views have changed since the 1977 article, but that need not detain us.)

Let’s all concede that religion has certain properties that we’d better take into account in some way, perhaps by not making it a political issue whether a particular religion ought to be imposed by the power of the state or whether certain religions ought to be suppressed by state power. Thus, we could agree that we ought to give religion recognition respect, which will then make us circumscribe our behaviour in certain ways. These ways might be important if they make the difference between whether or not we live in a society with bloody religious persecutions. All the same, the effect on our behaviour as individuals may be slight. The appropriate level of recognition may not be demanding in how it constrains our behaviour, at least for most of us.

It does not follow that religion per se merits any esteem, or anything similar that might motivate us to treat it with special deference or solicitude. Does religion (again, religion per se, not some particular, especially “nice” religion) merit appraisal respect, i.e. we ought to appraise it as meritorious, worthy of esteem, and so on? I don’t see why, and neither does Leiter. Religion may have its good side, but it also has a dark side. Taken as a whole, it is not obviously something that is worthy of our esteem, or even something that is all to the good.

For Leiter, it follows that there is no requirement, above and beyond his basic argument for toleration, to give religion any special rights. It is in the same boat as other matters of individual conscience, deserving no more (though no less) deference by the state. Although I argue for religious toleration from a different philosophical viewpoint, I think Leiter is clearly right on the basic issue here.

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Accommodations for religious and family/cultural purposes

I’ve just begun reading Brian Leiter’s new book, Why Tolerate Religion?, about which I’ll doubtless have more to say – here and elsewhere. Meanwhile, I can report that the book is focused on one main topic within the larger field of freedom of religion (and/or secular government). Leiter concentrates on the topic of why we should accommodate religious practices, even if they fall within the terms of prohibitory laws that are religiously neutral and of general applicability.

For those of you who are familiar with my book, Freedom of Religion and the Secular State, Leiter is covering the terrain that I deal with mainly in Chapter 7 (although the issues do come up to an extent elsewhere).

Leiter raises the particular issues that he has in mind by presenting us with the example of a Sikh boy who is required by the canons of conduct of his religion to wear a dagger at all times. Should he be exempt from a generally applicable legal rule, with no religious or anti-religious purpose behind it, that forbids weapons at school? If so, what do we say of a boy of the same age who is required to carry a particular dagger that is a family heirloom: one that has been passed down to him ceremonially as part of a longstanding family custom that is, in turn, well grounded in the local culture? Imagine that Boy A (the Sikh) and his family will suffer about the same amount of emotional distress as Boy B and his family… if they are not exempted from the rule to the necessary extent.

Thus, we assume that the family/cultural custom binding Boy B is very meaningful or emotionally important to Boy B and his family, even though the custom is not enjoined by anything that courts of law would regard as a religion (e.g., the custom is not entangled with beliefs about an otherworldly order, or a transcendent way for human beings to flourish, or ideas of immortality or spiritual salvation, or anything that seems closely analogous to any of these).

Leiter offers a fair bit of detail about the two scenarios to make them seem emotionally about equivalent. Should Boy A be exempt from the rule? Should Boy B be exempt from the rule? Both of them, perhaps? Neither of them?

Leiter hasn’t raised this so far, but who, in a liberal democracy, should decide this issue? The legislature (or someone with delegated authority to create rules with the status of subordinate legislation)? The courts? Someone else?

Please discuss.

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Freedom of religion and the contraceptive mandate (Missouri court case)

In the case of O’Brien v. US Department of Health and Human Services (go here for an analysis that links to the actual judgment), a judge of the United States District Court for the Eastern District of Missouri has upheld the so-called contraceptive mandate in its application to a secular mining company controlled (and apparently owned) by a practising Catholic, Mr O’Brien.

The challenged federal provision requires employers to provide group health plans for their employees, with content conforming to regulatory guidelines that (among other things) require coverage of the cost of contraception. The plaintiffs, Mr O’Brien and his company, argued that this was in breach of (among various other provisions) the US Constitution’s First Amendment. In particular, the main First Amendment argument was that the provision impinged on Mr O’Brien’s free exercise of his religion, which, he argued, includes running his business along Catholic lines. It was also argued to impinge on the free exercise of religion by the company itself.

I submit this much should, in principle, have been straightforward. The provision is 1. a neutral law (its purpose or object is not the persecution or imposition of a religious viewpoint, and nor can this be seen as somehow being its main effect) of 2. general applicability (it applies to the generality of employers, subject to some specific exemptions). Based on principled reasoning, philosophical theory going back at least to John Locke, and Supreme Court precedent, this should be enough to uphold the law against First Amendment review. Freedom of religion requires that the state not persecute disliked religions or impose, or endorse, a favoured religion, but there was no persecution here. The mining company was simply required to obey the same law as other employers. However annoying or inconvenient that might be, it is not religious persecution.

Nor was it establishment of religion. No religion was imposed or endorsed, or anything of the kind, though the plaintiffs attempted to argue that the provision was impermissibly entangled with religion, insofar as strictly religious employers were exempt – which meant that the state had had to draft criteria as to which these would be. Thus, in a sense, the state was playing favourites. I hope it is plain that this argument lacks merit. At the very least, it flies in the face of a large body of American constitutional jurisprudence. To nail the point down completely would require a close look at the criteria used, and this would take me away from what I see as the crucial issue arising from the case. Suffice to say that the court considered the criteria to be logical, and I agree.

In the upshot, the court had little trouble disposing of the First Amendment challenge (a freedom of speech argument was also run, but this need not detain us).

If it is relevant, we might add to the paragraphs above that no one is actually required by her religion (or at least by Catholicism) to run a mining company, or any sort of company at all. The law might make it less convenient for some people to do so, but that is another question.

Moreover, it is not as if this law somehow impinged on the core services and operations of a church or similar body, such as by controlling who can and cannot be made a priest. Indeed, as I’ve noted above, strictly religious employers were exempt from the law.

However, I’d prefer to leave the freedom of religion considerations on the basis that there simply was no state imposition or even endorsement of a religion, and no persecution of any religion. For further discussion, at some considerable length, of how all this relates to religious freedom, I refer you to my book, Freedom of Religion and the Secular State .

So far, so good. These American cases get complicated, however, partly because they are decided not only under the First Amendment but also under the Religious Freedom Restoration Act (RFRA). Back in the 1990s this was struck down in its application to state laws, but it still affects laws at the federal level.

RFRA empowers the courts to craft religious exemptions from legislation, even where the law concerned would not breach the First Amendment. In my opinion, this statute should never have been enacted and relies on a bogus concept of religious freedom. It enables laws to be struck down, at least in some of their specific applications, even though nothing like an imposition, endorsement, persecution, etc., of religion is discernible. That, in fact, means that judges are entrusted with the task of deciding whether or not to grant the privilege of an exemption from a law that is, ex hypothesi, religiously neutral and generally applicable. To quote from the judgment:

The Religious Freedom Restoration Act … forbids government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

Thus, the court had to consider whether the contraceptive mandate substantially burdened a person’s exercise of religion. This further raised the question of whether the company was a person capable of exercising a religion, but the court ultimately did not need to decide that issue. Instead, it held that the case could not succeed even if the point were decided in favour of the company.

The essence of the case is that any burden on religious exercise, applying to either Mr O’Brien or the company, was not “substantial” within the meaning of the RFRA. Any burden was too slight and indirect to count as substantial – e.g. no one was actually required to use contraception. The requirement was merely that a benefit be provided to employees that they could utilise, if they wished, for obtaining and using contraceptives (something that they could have done anyway out of their wages – the benefit simply made it easier for them).

While this outcome is defensible, some sort of defence could also have been given if the court had decided the other way on the “substantial burden” point. In that case, it would then have been a matter of judgment just how “compelling” was the government interest in availability of contraception, and whether some less restrictive means was available to pursue it. In practice, once a substantial burden is found and the compelling state interest test is consequently applied, it becomes very unlikely that a court will uphold the challenged law.

Although I welcome the outcome of this case, I expect to see it appealed, and I’m not confident that other, similar, cases will be decided in the same way when they are determined by courts in other jurisdictions. I am not totally opposed to exemptions from neutral laws of general application, but I submit that they should be rare and should not be handed out by the courts. They should be issues for the legislature when it balances the interests of affected parties in the process of crafting and enacting legislation. Note that any exemption partly defeats the purpose of the law, and some exemptions shift an additional burden onto other parties that are not made exempt.

The courts should be making findings on such issues as whether the state has acted to endorse or impose a religious viewpoint, or to persecute one … or whether the state has merely enacted a neutral law of general application, with some secular and non-persecutorial purpose. In the latter case, there should be no further issue for the courts as to whether some side effect on religion amounts to a “substantial burden”. Or so I submit. At least we can hope, based on O’Brien v. US Department of Health and Human Services, that a substantial burden, in the legal meaning of that term, won’t be found lightly by the American courts.

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Peter Singer on freedom of religion

Peter Singer has written a piece in which he argues that your freedom of religion has not been violated unless the state enacts a law that effectively prohibits you from doing something which is required by your religion. Thus, if it bans killing animals for meat in a certain way prescribed by your religion, that is not actually a violation of your freedom of religion unless your religion makes eating of meat compulsory. If it doesn’t do that, you can comply with the law by not eating meat all!

This is especially neat if you have reasons for thinking that people shouldn’t be (say) eating meat in any event. If some people are driven to give up eating meat in order to comply, you might think that a good collateral outcome, or side benefit, from a law requiring that animals be killed only in a certain way.

To be fair to Singer, though, another example that he gives is public transport – something that he doubtless approves of. If public transport is regulated in a certain way, e.g. to ensure that there is no gender separation, this might mean that certain people cannot comply with both the law and the rules of their (perhaps misogynist) religion. However, Singer suggests, they can’t complain that their religious freedom is being violated unless their religion makes it compulsory for them to use public transport. If it doesn’t, they can comply with the law simply by not using public transport.

Unfortunately, this analysis won’t work. I discuss such an approach in Freedom of Religion and the Secular State, where I conclude that it is not convincing. There’s much to say about this, but perhaps we don’t need to get too deeply into it in this post.

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

I think that Singer’s argument is, in some ways, too harsh and in some ways not harsh enough. It is not harsh enough if a law bans some practice that actually is required by a religion, provided that the negative effect on the religion is not the purpose of the law, and is merely the result of a general law enacted on some kind of secular ground that is neutral about the truth and false and falsity of various religions – essentially, a law that would have been enacted whether this religion existed or not.

Thus, imagine that some religion actually requires human sacrifice. Nonetheless, the ordinary law of murder does not breach the freedom of religion of its adherents. The law would have existed whether this religion did or not, and it is not aimed at suppressing the religion or persecuting its followers. It has the obvious secular purpose of protecting people from harm. I submit that the practitioners of the religion cannot claim that they are being persecuted, or anything of the kind.

But what if a law bans certain practices that, although not compulsory, are highly valued in the traditions of the religion concerned? What if the law is not a neutral one of general application (like banning loud noises after 1 am) but one tailored to make life just that bit less convenient and enjoyable to adherents of the religion (again, imagine a ban on singing Christmas carols)? This looks like the state is overreaching – it is acting out of a sense of hostility toward a particular religion, not enacting a law that it would have enacted anyway whether the religion existed or not.

Thus the test relates to whether the religion is affected by a religiously-neutral, generally-applicable law (with some entirely worldly purpose, not a purpose such as deterring heresy). The test is not whether the banned practice is compulsory within the religion.

All that said, neutral, generally-applicable laws can turn out to be especially onerous for particular groups of people. This can happen for all sorts of reasons. One reason might be that a law has the practical effect of forbidding people from engaging in a religious practice of some kind.

On occasion, we might want to give exemptions from a law, and our reasons might take into account how important it is that this particular law obtains universal compliance. They might also take into account just how onerous the effect is on people who are especially affected. If we’re getting into this weighing exercise, it will, indeed, seem more important if the effect of the law is to ban something that is considered compulsory for, say, spiritual salvation than if it merely makes life less enjoyable and convenient. But even the latter can be given some weight, depending on the circumstances.

Note, though, that even if human sacrifice were considered compulsory by some group for spiritual salvation, we would not grant exemptions from the law relating to murder. The starting point is whether this is a neutral law of general application with a good secular purpose. If it is, it is not an attack on freedom of religion. It is only when we get to considering any exemptions from the law that we take into account just how much difficulty the law might create for certain groups, including religious groups.

Alexander Aan case

Just briefly, I care enough about this case to have joined the letter-writing campaign … and it’s possible that you will, too. If you want to know more, go here (a post on my personal blog, which I won’t repeat in full) – and follow the further link, where you can write a letter in whatever terms you see fit.

This is about the guy who is in jail in Indonesia for expressing his atheist views, and criticising Muhammad, on Facebook.