Monday, January 29, 2007

Special Rights for Religion?

One often hears the suggestion that people have a right to live according to their religious beliefs. (A current example - via B&W - is the Catholic Church's resentment at not being allowed to discriminate against gay adopters.) This puzzles me greatly, because the suggestion is so plainly ludicrous. Consider a religious fanatic whose beliefs prescribe doing harm and violence to others. No sane person would grant them the right to live according to their religious beliefs. There simply is no such right -- not when the beliefs in question are in conflict with the antecedent rights of others.

Now, liberals in the tradition of J.S. Mill might hold that people have the more general right to live however they like so long as no-one else is harmed (roughly speaking). That of course encompasses religious expression of the harmless variety. On this view, there is no special right to religious expression, as distinct from every other kind of expression. Just the same basic freedom for everyone, to live as they like (within reasonable limits), whether the basis for their choice is religious or not.

That sure sounds reasonable to me. But I might be missing something, so I'd like to hear from any supporters (a devil's advocate would do) of "special rights" for the religious. Room for such a view may open up once we retreat from pure liberalism, so that fewer activities are allowed to start with. My question is: are there any cases where a liberty should be granted only to the religious? For example, if an ancient religious ritual involves an illegal hallucinogen, should a special exemption be made for these practitioners alone?

Or you may think it's the 'ancient' rather than the 'religious' bit that matters here. Should there be "special rights" to ensure that old traditions can endure, when they would otherwise involve illegality?


  1. What I find interesting is how the standard was kind of set in the U.S. by the Mormon polygamy thing. While I certainly agree that freedom of religion should be limited, I don't think polygamy between consenting adults was really hurting anybody but the consenters themselves.

  2. It seems to me that as soon as you talk about multiple rights you'll always have competing rights and how to deal with those competitions is never straightforward.

    I'm not sure Mill's rule utilitarianism is really helpful, although perhaps that's just because of my cynicism towards utilitarianism of most forms.

    I do think though that the issue is the state regulating behavior. Religion seems to get a pass due to being grandfathered in, as it were. That is, if there is an old Indian rite, who is the government to tell people to change their religion? Since the ends of some Navajo using some material in a religious ceremony seems quite a bit different from some ski bum doing the same, I think we can note a distinction.

    Put an other way, it seems that our intents have to count towards how we adjudicate competing claims of rights.

    Having said that though in general I think a lot of the things the government attempts to regulate they shouldn't. I think most religious liberties issues are really areas where the government shouldn't have meddled in the first place.

    The more interesting cases are in work place situations where an employer wants to ban some religious clothing or the like even if it doesn't have a clear effect on the job. One can see that as a "special case" but I think it is a special case because we don't think employers ought discriminate based upon race, religion or many other factors.

  3. Re: "How broadly judges define 'the freedom of religious expression' is probably going to be an increasingly worrying issue as time goes on. The more broadly it is defined, the less possible a secular state becomes. That is deeply alarming to those of us who don't want the Vatican or imams or preachers dictating terms for all of us."

    In the case of gay marriage its hardly the Vatican (or the bishops, or Catholic groups) trying to dictate terms to society, it is rather an attempt by them to avoid having terms dictated to them. They don't want to do X, the government says they must do X, who's dictating the terms?

    It can be argued that the terms should be dictated on the church. That the non-discrimination principles, outweigh the groups' rights to make their own decision on this matter. But even if that is considered the correct decision it doesn't support the comparisons to "a religious fanatic whose beliefs prescribe doing harm and violence to others", unless you consider a refusal to interact with someone in a certain way to be violence against them. I don't.

    - Tim Fowler

  4. Tim, if you oppose anti-discrimination laws in general, that's different from appealing to any special right for the religious (as the Church does in these cases - follow the links).

  5. Yes you can oppose anti-discrimination laws in general. Or more reasonably oppose anti-discrimination laws being applied to individuals and private (in the sense of being non-government) organizations, without appealing to the special rights for religious beliefs.

    And to an extent that describes my position.

    OTOH that doesn't really challenge my point. Even if the rule is for religious groups only, it doesn't amount to the religious group "dictating terms for the rest of us" nor does it amount to the equivalent of a terrorist blowing up people because his religious belief tells him to do so.

    Also its possible to argue that cases of sincere and deep religious belief should be treated differently than run of the mill preferences and/or biases, arguably this is an even stronger case if the religious group has a long history of such opinion and represents a decent sized chunk of society. I personally wouldn't give too much weight to this idea. I'm concerned about the freedom of people even if their desired action is just a whim, but perhaps it should be given a non-zero weight.

    Of course there has to be a limit. Accepting terrorist bombings is clearly beyond that limit.

    - Tim Fowler

    edit - It seems like I have to click on publish twice to get anything published. I think (and hope) and I am not double posting. If I am I apologize.

  6. I don't know about "special rights", but I can make an argument for the government going out of its way to allow people to practice their religions.

    Historically, one of the biggest problems involved in creating states was getting people of different religious beliefs to live together peacefully, so it has been especially important to get people to feel that society is welcoming of their religion. Although this problem isn't quite the same these days, civically it's still important to keep people from being alienated from their society. A lot of people still really care about their religion, which recommends against restricting religious practices. Plus, on a desire fulfillment view, prohibiting people from practicing their religion thwarts a strong preference (or one that is closely linked to their global preferences).

    Additionally, religions often regulatate the behaviors of their members, which could make government regulation less important or even counterproductive. Permitting people to use a hallucinogen within the confines of religious ceremonies is a much narrower allowance than permitting anyone to use the hallucinogen whenever they want, and it would probably be less likely to result in problems associated with substance abuse. Similarly, if any family that wanted to could be exempted from government education requirements for their children then that could lead to some serious problems (with children not getting a decent education). The problems might be much less serious if the exemption were limited to Amish families, who have their own traditions which structure their children's education.

    As I said, I don't think these arguments establish any kind of "right", but they do suggest that governments should be especially hesitant to restrict activities that are religious practices (and, perhaps to a lesser extent, when they are the practices of a longstanding community).

  7. Tim, that's fine, I never asserted either of the two claims you mention in your 'OTOH' paragraph. I used the fanatic example merely to show that there is no universal right to live according to your beliefs. (This isn't meant to counter every possible objection the Church might have against anti-discrimination laws. Instead, I was merely objecting to the particular argument that appeals to the "right" to live according to one's religious beliefs.)

    Your latter point is interesting, though the distinction between serious commitments and whimsical preferences is of course logically independent of religion. I'd be interested to pursue the idea further though...

    Blar - very helpful! I'm going to have to agree; those are some solid reasons you offer. The point about traditional 'regulative structures' is quite neat.

    The alienation issue is difficult when two segments of society are in conflict (e.g. when the religious want to discriminate against gays). The civic perspective may then recommend an inclusive, consensus-building deliberative democratic process, rather than simply imposing a "solution" from on high? (Though it's hard to imagine civil dialogue between the Church and gay rights groups!)

  8. In the first place there really is no such thing as a religious right, or perhaps all rights are religious rights. Some right religious and some not is arbitrary and absurd and has only led to endless arguments.

    An "establishment of religion" has come to mean a legalistic corporate instrument of the state. It was not so when the constitution was formed. An establishment of religion was some group of people who got together and decide how they would govern themselves. this leads to the real point which most seem to miss now days.

    An individual governing himself is an unsustainable reality.
    All society governing all is an unsustainable reality.

    A group of individuals governing themselves is a sustainable reality and the only one that will resolve the conflict.

    The Catholics call themselves a religon. Agnostics call themselves not a religion. This is absurd. So now the state regulates and not the other. All nonsense.

    Let the Catholics get together and regulate themselves. Let the agnostics go somewhere else and regulate themselves. Well we can't seem to do that anymore but it is the only thing that will work. Otherwise everyone is attempting to regulate everyone else. It has nothing to do with historical questions. It has to do with the right to choose and then substantiate those choices amongst those of similar persuasion. Now put some space between the groups. That can work and is the only thing that really ever has.
    By the way, may I get on this forum, I have applied, thanks, Digital Dig.

  9. In the US, the Supreme Court (except for lunatics like Scalia) have to a large degree begun to figure this out I think: religions or churches have no distinctly "special rights" over any other NPOs, which could be secular.

  10. Every "right" has a responsibility attached to it and assuming that responsibility develops that right.

    One way to look at a right is to see it as undeveloped potential. In order to experience the potential of that right you need to deveop it which requires resistance and responsibility.

    The greater the potential of any right the greater the responsibility needed to over come the resistance involved with that right.

    If you examine the rights spelled out in the US Bill of Rights and Consitution you will see that its citizens haven't experience many of they because they haven't assumed the responsibility to develop those rights.


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