Tag Archives: Freedom of religion

Brian Leiter – “Should we respect religion?”

Posted by on November 20, 2012 12 comments

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

Posted by on November 20, 2012 15 comments

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)

Posted by on October 2, 2012 7 comments

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

Posted by on June 18, 2012 45 comments

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

Posted by on April 25, 2012 No comments

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.

Church & State II: Discrimination

Posted by on February 20, 2012 29 comments

English: Schopfheim: Catholic Church Deutsch: ...

In the United States, the American’s with Disabilities Act makes it illegal to discriminate against people based on their disabilities. Unless, apparently, the institution doing the discrimination is a church.

A disabled woman who was teaching at a religious school was fired and filed a claim under this act. The rather clever reply by the lawyers was to rely on the ministerial exception clause.

This clause was originally intended to grant religious groups the liberty to discriminate in their hiring (and firing) practices so as to allow them to act in accord with the doctrines of their faith.  To use the obvious example, the Catholic Church is allowed an exemption to practice gender discrimination based on its doctrine that only men can be priests.

On the face of it, it seems blindingly obvious that this exception was not intended to allow religious groups to simply fire people with impunity in regards to the anti-discrimination laws. While the application of the law is certainly a matter of interest, what I find more interesting is the exception itself.

On the one hand, this exception does have a certain appeal. After all, history shows that laws can be used to oppress or otherwise mistreat religious groups and one way to afford protection for religious freedom is to provide such “escape mechanisms” in laws that might be misused. Given that freedom of belief and freedom from oppression seem to be legitimate and worthwhile freedoms, this sort of exception has some merit.

On the other hand, there is the obvious concern that the mere fact that something is a religious belief should not be grounds for allowing an exception to the general law. In the case of this specific law, if churches can simply apply the exception when they fire people, churches would be effectively immune to anti-discrimination laws. This would allow them the freedom to engage in actions that seem to clearly be immoral (such as firing people on the basis of age, gender, sexual orientation, ethnicity or any other quality) and otherwise illegal merely because they are religious groups.

It might be countered that religious groups must have the liberty to hire and fire as they wish, otherwise religious freedom is in danger.  However, handing religious groups a license to discriminate hardly seems to be a necessary step in preserving religious liberty and, as such, this sort of broad exception seems to be morally unjustified.

There is also the obvious concern that while the right to religious freedom is worth considering, there are other rights as well. In the case of hiring and firing, it would seem that people have the moral (and legal) right not to be discriminated against and it does not seem obvious that the right to religious freedom should simply trump other rights.

For example, suppose a devout group of Thugee established a church of Kali in the United States and argued that religious freedom gave them the right to be exempt from the laws forbidding murder and theft. This, obviously enough, would be regarded as absurd. After all, the right not to be robbed and murdered outweighs the right of religious freedom.

As another example, suppose that a religious group that practiced polygamy claimed an exception based on religious views. This would, obviously enough, be denied. In fact, polygamy is illegal (although apparently sometimes tolerated). As such, religious freedom would once again not trump the law.

As a third example, suppose that a religious group wanted to hire or fire people in ways that violated  anti-discrimination laws. This, oddly enough, seems to be okay. However, the obvious question must be asked: why should religious groups be given an exception here? The answer seems to be that they should not, unless we wish to allow them the other exceptions.

Another point of concern is, obviously enough, why religious groups should get such exceptions. After all, there are other groups that hold discriminatory views (racist groups, for example) and it would seem to be, well, discrimination not to allow these groups to discriminate based on their beliefs. After all, these people are no doubt as sincere and devoted in their beliefs as religious folk and it seems rather difficult to prove that their is a magical something about religious beliefs that entitle religious groups to special exemptions that are denied to other groups.

Of course, if a religious group could prove that they have got it right when it comes to their desired exemptions, then that would be another matter. For example, if Catholics could prove that just as only women can biologically be mothers only men can be metaphysically priests, then they would be justly exempt from the law regarding gender discrimination in the case of priests.

Doing this should be easy enough. When a religious group claims a special exemption, all that needs to be done is for their deity to show up and sign the appropriate form after establishing his/her/its divine identity. For the religious groups who have the true view, this should present no problem. Naturally, groups whose deity fails to make an appearance (or that fails to send a suitably divine or infernal non-human agent, such as an angel) must be regarded as having gotten things wrong and thus would not be entitled to an exception. After all, a group that cannot prove that its  exemption from the law is justified should not be allowed that exemption. Obviously, referring to made up beliefs does not count as justification.

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Religious freedom and religious privilege

Posted by on February 19, 2012 24 comments

I enjoyed reading Mike LaBossiere’s post entitled “Church & State: Immaculate Contraception”, but I can’t resist the impulse to add a post of my own – perhaps because I lack free will in the matter, but mainly because I devote an entire chapter of Freedom of Religion and the Secular State to this sort of issue (so it is kind of on my mind), and certainly because it has become even more topical than usual.

In setting the scene, Professor LaBossiere describes a provision that the Roman Catholic Church is currently objecting to in the United State: “This law requires that health insurance plans offer free birth control. Since this would include Catholic affiliated hospitals and schools, the Catholic Church has been pushing back against the law.” He adds: “Not surprisingly, this is being portrayed as an attack on religious liberty and the values of Catholicism. However, it is rather important to note that the law does not apply to churches, but rather only to institutions, such as hospitals and schools, that serve a large number of non-Catholics and also receive federal money.”

He raises an interesting point – can we really say that “birth control”, i.e. the use of contraceptive technologies, is against Catholic doctrine if (as is the case) most Catholics, at least in the relevant jurisdiction, are not morally opposed to it? I’ll leave that issue to him, though let me say in passing that, for now, and into the foreseeable future, birth control is most certainly against official Catholic doctrine. In particular, the encyclical letter Humanae Vitae is still binding in the sense of being the Church’s official and unmodified statement on the matter.

However, if for some reason you’re not convinced that Humanae Vitae and all that it represents really is valid Catholic doctrine, I’ll ask you to put that issue aside and deal with the problem as if it were the valid doctrine. Okay? In that case you can immediately see the problem with requiring Catholic employers to provide their employees with insurance schemes that in turn cover the cost of birth control. Or is there really a problem after all?

My starting point is that there is not necessarily a problem. The employers concerned have not been singled out for persecution on the ground that the US government believes that Roman Catholicism is a false or dangerous religion. In fact, they have not been singled out at all … and the intent of the law is not to persecute Catholics. An easy way to see that is to ask whether this law would have been made if the Roman Catholic Church didn’t even exist. It is, I suggest, plain that it would have been. The purposes behind the law are not in any sense to persecute a religion or group of religions, or to favour others. The law was made for ordinary religion-blind purposes relating to the health and worldly welfare of women. Whether or not it is a good law, whether or not it is a law that I would vote for (I probably would have, but even if I wouldn’t have), it has not been made out of a wish to persecute certain religions or to favour others. In that legal (but not terribly difficult) sense, the law is neutral.

The law is also one of general application. It is not as if the employers concerned find themselves objectively singled out. Rather, they find themselves merely having to do what every other employer has to do.

Alas, you’ll need to read my book to get the full argument for this, but I take the view (which was also the view of John Locke, and is also the view of the US Supreme Court, and most notably that good Catholic Justice Scalia) that there is no breach of the fundamental concept of freedom of religion if a law has been enacted for some kind of understandable worldly (or “secular”) purpose (such as the health and welfare of women), and is a neutral law of general application. It might or might not be a good law, but it is not a law that is contrary to the idea of religious liberty or freedom of religion.

If anything, it is contrary to freedom of religion if some people (or corporations or whatever) are exempted from a law because of religious sensitivities. That is not religious freedom; it is religious privilege. It is giving the religious people (etc.) a privilege that the rest of society does not have, as, after all, we are talking about a law of general application.

However, I won’t go quite that far. In some circumstances it might be okay to privilege people by exempting them from certain laws, where obeying those laws would be against their consciences. As so often pointed out, we allow for conscientious objection in some circumstances. I don’t rule this out, as long as we understand that it is a privilege we are granting, and that it is not an automatic right. In this case, the Catholic employers would have to argue why their acceptance of official Roman Catholic canons of conduct – i.e. a standard that specifies that using contraceptives is a sin – should give them the privilege of not being compelled by the same law that compels everyone else.

Yes, reluctance to force conscience, with the kind of mental suffering that it might entail, sometimes might be a reason to grant an exemption. It is a compassionate reason. There may be other reasons as well, including just plain practical ones, e.g. because there is no point in putting a rifle in the hands of a committed pacifist (but one reason that the government should never use to explain its actions is that such-and-such a religion is actually the true one).

However, granting the privilege of an exemption from the law will usually place more burden on someone else (in this case, employees who do not receive the same advantages as other employees in the work force). That is a good reason for being reluctant to grant religious privileges – and if we are going to grant them from time to time, it is a good reason to make the exemptions narrow, applying only where the case for them is at its strongest.

Restrictions on the Church as an employer of people – such as priests – who are necessary for its very survival will have a different effect from restrictions on the employment practices of commercial enterprises that might happen to be owned by the Church. There are obviously situations in between. In cases like this, there will be many considerations that need to be weighed up, and there is nothing wrong with a degree of political compromise in trying to take into account the interests of everyone affected. In the end, the processes of political deliberation will determine just what exemptions should be granted, but if they are going to be granted at all they should generally be narrow and carefully crafted.

As far as I can see, the Obama administration was well within its rights to impose this neutral law of general application on Catholic employers, with only relatively narrow exemptions. I see no issue here of anyone’s religious freedom coming under attack. What I do see is some special accommodation of religious sensibilities – which, again, is a privilege granted by the law-makers – that has been kept within appropriately narrow bounds, developed throught the political process.

People who see this action by the Obama administration as an attack on religious freedom should go back and read John Locke, even if they don’t want to read my book. In fact, they could just go back and read Antonin Scalia.

Do we need laws banning polygamy?

Posted by on November 28, 2011 15 comments

This is the hot topic for the week, following the judgment of a Canadian court upholding a ban on polygamous marriages.

Here are two online articles criticising the outcome of the case: one by Kate Heartfield, writing for The Province; the other by Stephanie Zvan in a post on her blog at freethoughtblogs.com.

I have a lot of sympathy for both of these pieces. That’s not to say that the case is wrongly decided as a matter of law – I think that’s quite a difficult question, and I’d like to think about it further. In particular, I would like to – *sigh* – read the 300+ page judgment in its entirety (does anyone have a link for it?).

One interesting issue for legal theorists is this: what if a statute was initially enacted to achieve a purpose that was in breach of such concepts as freedom of religion (which might have constitutional protection), but is now, generations later, best rationalised on some other, seemingly legitimate, basis? Should we now see the statute as serving a legitimate secular purpose? Perhaps … but it’s not just obvious. What if the constitutional protection of freedom of religion came along after the statute was enacted? Does that make a difference? I don’t see a clear philosophical answer to questions like that. Maybe it’s just a policy question. I’m open to hearing some views.

In any event, public policy on this issue in Canada will now be in a mess. It’s clear that the state won’t register polyamorous relationships (polygynous, polyandrous, or more complicated) as marriages. I could agree with this – in fact, I argue for exactly this in Freedom of Religion and the Secular State (though not with any great enthusiasm … see for yourself if you don’t mind shelling out).

But that doesn’t mean that all such relationships are prohibited. You’d think it might end there, in fact: in Canada, polyamorous relationships are not prohibited, but nor are they registrable as marriages with whatever social and legal benefits that might entail. Full-stop. I could go along with that. But it seems that there is going to be a middle category of relationships that are actually prohibited, if they show sufficiently marriage-like properties – perhaps including extra-legal recognition as marriage through a religious ceremony. If so, that is just a mess. I don’t necessarily mind the state deciding what relationships it will extend its blessing – and certain legal privileges – to. But I don’t want it getting into the bedrooms of consenting adults with criminal bans on their private erotic arrangements, for which they are asking for no particular privileges from the state.

We should try to avoid dogma … especially if we haven’t read a legal judgment in its entirety, so as to see the full argument. I’d like to know more about the judge’s reasoning. But at the moment, I’m very sympathetic to Heartfield and Zvan.

What do you think?

Burning Books & Building Mosques

Posted by on September 9, 2010 49 comments
Front of the Quran
Image via Wikipedia

9/11 marks the anniversary of the most destructive terrorist attack on America.  While this date is often marked with solemn events in memory of the dead, a pastor in my adopted state of Florida (I’m from Maine) has planned to hold a Quaran burning on this day. Oddly enough, he has also claimed that only the radicals would be against burning the Quran.

Government and military officials in the United States have tried to encourage the pastor to cancel his event. The main reasons are that this action will harm America’s relationship with Muslims and that it will put American forces in danger. Of course, the officials do agree that the pastor has the right to take this action on the basis of the right to free expression.

Not surprisingly, the people who are opposed to the mosque that is supposed to be constructed near ground zero were quick to argue that the two situations are analogous. The gist of the analogy is that while people have a right to build a mosque near ground zero (just as they have a right to burn the Quran), they should not do so (just as people should not burn the Quran).  This does have a certain appeal. After all, if the fact that burning the Quran will antagonize Muslims means that it should not be burned, then it would seem to also be the case that the mosque should not be built because it will antagonize people. Some might even go so far as to say that the mosque should not be built so as to avoid violence against Muslims (just as the Quran should not be burned to avoid an increase in violence against American soldiers).

Perhaps the two situations are analogous and both fall under a single principle: actions should not be taken that will damage relations and lead to increased violence. In the case of burning the Quran, this would certainly seem to damage relations with Muslims and also incite some Muslims to seek vengeance by attacking people (most likely those who have no significant connection to those burning the books). In the case of the mosque, its construction will damage relations between some Americans and Muslims and might well lead to violence against Muslims. As such, if the Quran should not be burned, then the mosque should not be built near ground zero (and vice versa).

Of course, accepting a principle that we should be, in effect, hostage to those who are willing to engage in violence in response to what they do not like does not seem very appealing (whether the violence is in response to a book burning or a mosque building).

However, perhaps the two situations are different in a key way that breaks the analogy. In both cases, people are (or will be) very angry. In both cases, people wish to act on the basis of established freedoms (religion in one case, expression in the other). However, there seems to be an important distinction between building a mosque and burning the Quran. To be specific, building the mosque does not seem to be intended as an insult against the victims of 9/11 (some of whom were Muslim). After all, the Pentagon has a non-denominational chapel (dedicated to those killed at the Pentagon and on the plane that hit it) where Muslims hold prayer services and this was never taken as an insult. As such, it seems odd to take the mosque as an intentional insult against those who feel insulted. In contrast, burning the Quran as part of a 9/11 event can really only be taken as an insult and an attack on the faith. It would also be especially insulting to the Muslims who were murdered in the attack.

It might be replied that the builders of the mosque secretly intend to insult those who are insulted by its construction. However, this claim would seem to be based on equally secret evidence. Obviously enough, the fact that some people feel insulted by it hardly counts as evidence for such an intention on the part of those who plan to build the mosque. Until evidence of such intent is forthcoming, it seems reasonable to accept that the builders did not intend to insult anyone.

There is also the question of who the mosque is supposed to be insulting. After all, it probably cannot be an insult against the Muslims who were murdered by their fellow Muslims. It also cannot be an insult against the victims who believed in freedom of religion. Overall, it seems mainly to be an insult against those who see themselves as insulted by it. However, they seem to have little right to be insulted by this mosque.

Thus, there seems to be a possible relevant difference between the two situations. In the case of the mosque, those behind the project seem to have no intent to insult anyone and these seems to be no clearly defined victim of the alleged insult, other than those who see themselves as insulted. In the case of the book burning, that seems to involve a clear intent to attack the faith and it seems reasonable for people to consider such an action as an insult and an attack. This does not, however, mean that they would be justified in responding with violence.

To use another analogy, the mosque situation seems to be like a case in which someone is rationally talking about a subject that some might take issue with (such as arguing for or against same sex marriage) and the Quran burning situation seems to be like a white person repeatedly saying the N-word to African Americans. While both are covered by the freedom expression, it is unreasonable to take offense with the first situation but quite reasonable to take offense in the second. It also seems reasonable to think that people should not say racist things, even though they have the right to do so.

If this line of reasoning is plausible, then the mosque should be allowed while the Pastor should not engage in his book burning (despite having the right to do so).

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