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Religious Liberty and State Power

Andrew Sullivan quotes two different views on religious liberty from two well-known sources. Peter Singer suggests that religious freedom can be easily done away with in many situations through what is clearly a pretty specious bit of reasoning:

When people are prohibited from practicing their religion – for example, by laws that bar worshiping in certain ways – there can be no doubt that their freedom of religion has been violated. Religious persecution was common in previous centuries, and still occurs in some countries today.

But prohibiting the ritual slaughter of animals does not stop Jews or Muslims from practicing their religion. During the debate on the Party for the Animals’ proposal, Rabbi Binyomin Jacobs, Chief Rabbi of the Netherlands, told members of parliament: “If we no longer have people who can do ritual slaughter in the Netherlands, we will stop eating meat.” And that, of course, is what one should do, if one adheres to a religion that requires animals to be slaughtered in a manner less humane than can be achieved by modern techniques.

Neither Islam nor Judaism upholds a requirement to eat meat. And I am not calling upon Jews and Muslims to do any more than I have chosen to do myself, for ethical reasons, for more than 40 years.

Restricting the legitimate defense of religious freedom to rejecting proposals that stop people from practicing their religion makes it possible to resolve many other disputes in which it is claimed that freedom of religion is at stake.

Russell Blackford offers the obvious response:

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.

Here’s how I think such matters should be resolved. First, I don’t think the law should privilege religious beliefs over non-religious ones. I don’t think that a religious motivation to do something is any better or more legally relevant than a non-religious motivation. Second, I think we should apply what the Supreme Court calls the strict scrutiny test to all laws that restrict what we can and cannot do or say. In short, each individual should have the right to do what they want to do unless there is a compelling interest in preventing them from doing it.

This essentially goes back to Jefferson’s formulation of rightful liberty:

Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law,’ because law is often but the tyrant’s will, and always so when it violates the right of an individual.

The question is not when should the government violate someone’s religious liberty, it is when should the government violate anyone’s liberty for any reason. And the answer is that the government should restrict someone’s freedom when their exercise of that freedom denies another person their equal rights or does them harm against their will. There will inevitably be some disputes about conflicting rights, of course, but this basic framework is still valid and necessary for maximizing freedom and still maintaining a civil society.

Comments

  1. says

    So just to be clear, are you saying that animals are persons, or that laws against torturing animals for fun are unreasonable impositions on our freedom by a tyrannical government? Because it sure seems like you have to be saying one of those things…

  2. Robert B. says

    He didn’t really go into it, stuartsmith, but it would also be consistent with Ed’s argument to decide that animals share some but not all of the important characteristics of people, and thus deserve some but not all of the same protections.

  3. says

    Actually, I didn’t say anything about the subject of animal rights. What I’m referring to is not the specific argument Singer made but the premise of that argument, which is that any law that doesn’t “stop people from practicing their religion” is acceptable and not a violation of their liberty. That standard is, as Blackford rightly pointed out, far, far too broad.

  4. says

    The laws regulating donation/collection/handling of blood should apply to transubstantiated wine (blood). I want to see priests wearing rubber gloves during communion!!

  5. says

    There’s probably a “cut/choose” balance that can be struck, here. Nobody ought to be willing to pass a law that they wouldn’t be willing to live under, if a version of it was flipped around and applied to them. On the rare occasions I tangle with christians about the teaching of religion in schools my first sally is usually, “would you approve of the school teaching your the koran?

    Political processes go into the weeds when one group is able to pass laws that don’t apply to them. As soon as you see it, you know there’s trouble coming – even if it’s a little thing like cops ignoring speed limits (rather than respecting them even more than the population at large) Once I can pass laws that don’t apply to me, there’s no limit to what I’ll do to you.

  6. says

    He’s also wrong when he says that “Neither Islam nor Judaism upholds a requirement to eat meat.” Many forms of Islam and Judaism disagree. For example, many Orthodox Jews believe there is an obligation to eat meat at sabbath and festival meals. This belief is stated pretty explicitly in the Talmud, so these aren’t new things. Some forms of Islam have similar beliefs.

  7. says

    -Political processes go into the weeds when one group is able to pass laws that don’t apply to them. As soon as you see it, you know there’s trouble coming – even if it’s a little thing like cops ignoring speed limits (rather than respecting them even more than the population at large) Once I can pass laws that don’t apply to me, there’s no limit to what I’ll do to you.

    Catch-22 says they have a right to do anything we can’t stop them from doing.

  8. criticaldragon1177 says

    Ed Brayton,

    Excellent commentary on the subject of religious liberty, and liberty in general.

  9. d cwilson says

    And the answer is that the government should restrict someone’s freedom when their exercise of that freedom denies another person their equal rights or does them harm against their will.

    But my religion requires that I do everything in my power to coerce others to accept my religion as the One True Faith ™. You’re infringing on my rights!

    /channeling of whiny fundamentalist mindset.

  10. Michael Heath says

    Ed writes:

    I don’t think the law should privilege religious beliefs over non-religious ones.

    In my study of the founding, I occasionally came across some of the framers referring to freedom of conscience, which was framed as a super-set within which religious freedom existed. It would have been nice of if that phrase was included in the 1st Amendment.

    Ed writes:

    The question is not when should the government violate someone’s religious liberty, it is when should the government violate anyone’s liberty for any reason. And the answer is that the government should restrict someone’s freedom when their exercise of that freedom denies another person their equal rights or does them harm against their will. There will inevitably be some disputes about conflicting rights, of course, but this basic framework is still valid and necessary for maximizing freedom and still maintaining a civil society.

    I agree and don’t think there’s any compelling dissenting arguments. I don’t think this argument gets the traction it deserves because so many of us are uneducated regarding the nature of rights or we sloppily communicate our arguments in a manner that at least insinuates, if not arrogantly asserts, that rights can be determined and or doled out rather than personal and inalienable. How many times do we hear, “that’s not a right”? Those kinds of replies makes it more difficult to make the case Ed makes here because it muddies the public water regarding the nature of rights.

    Because our rights are our own and effectively infinite, the question isn’t whether we own a right or not, but instead:
    1) Have we delegated power to the government which restricts or prohibits our exercise of the right being infringed upon?
    2) Does the government have to consider somebody’s else competing rights and if so, how do they leverage their properly delegated power to optimally allow the impacted people the exercise our individual rights?

    While there are obvious advantages to having a Bill of Rights along with other amendments which numerate a particular right; it also sometimes makes for less optimal justice when a numerated right is protected over a competing unenumerated right. E.g., I think when it comes to speech rights vs. another’s right to not be slandered, libeled, or otherwise defamed we overly favor speech rights.

    This restriction on the weighing of one right over another was a justified concern James Madison held when the debate about the need for a Bill of Rights cropped up during the ratification process. I’m not saying this current weakness is an argument against a Bill of Rights, but it’s certainly a bug we fail to systemically and adequately confront and contain.

  11. infact says

    Letter to the editor that was not published:

    Dear Editor,

    Universities and hospitals, regardless of religious affiliation, should include contraception in the health insurance they offer employees. Our freedom of speech has exceptions, including child pornography, incitement of imminent lawless action, and slander. Our freedom of religion has exceptions as well. For example, the Native American Church cannot legally practice its traditional use of peyote and parents cannot legally deny their children life saving health care for religious reasons.

    Contraceptive services are a standard and vital element of modern health care. If religions are allowed to refuse to pay for contraception, then we would have to allow the Church of Christ, Science to deny any health care to the employees of the Christian Science Monitor. A boss of the Moslem faith could restrict health insurance according to Sharia law. When religious sects hire the public, they are subject to government control in the same way that Denny’s cannot legally restrict who can enter its restaurants or GM cannot deny employment on the basis of national origin, religion, or race.

  12. infact says

    Dear Editor,

    Universities and hospitals, regardless of religious affiliation, should include contraception in the health insurance they offer employees. Our freedom of speech has exceptions, including child pornography, incitement of imminent lawless action, and slander. Our freedom of religion has exceptions as well. For example, the Native American Church cannot legally practice its traditional use of peyote and parents cannot legally deny their children life saving health care for religious reasons.

    Contraceptive services are a standard and vital element of modern health care. If religions are allowed to refuse to pay for contraception, then we would have to allow the Church of Christ, Science to deny any health care to the employees of the Christian Science Monitor. A boss of the Moslem faith could restrict health insurance according to Shariah law. When religious sects hire the public, they are subject to government control in the same way that Denny’s cannot legally restrict who can enter its restaurants or GM cannot deny employment on the basis of national origin, religion, or race.

  13. paul says

    Some groups have religious beliefs that come into direct conflict with US law, and often the appropriate response is “Tough. Deal.” For example, one Catholic School is run by a particular religious order believes that no male should ever take orders from a woman. They complained when the basketball league that their team played in began appointing female referees. Even if women could be removed from all of their school and extra-curricular activities, the students will have to eventually deal with female cops, female officers in the military, female superiors in the private sector…Tough. Deal.

  14. Scott Simmons says

    If Christian couples are no longer allowed to baptize their children, should they complain about the violation of their rights, or just stop having them? After all, overpopulation is still a serious world problem; and there’s nothing in the Christian religion that actually requires people to marry, have sex, and procreate.

    Yes, Peter Singer is still a buffoon. In other news, Generallissimo Franco is still dead …

  15. laurentweppe says

    Actually, I didn’t say anything about the subject of animal rights

    You should have. Because -and it is never told enough-, using animal rights/welfare as a pretense to advocate the banning of religious slaughter is a fucking hypocrisy.
    And I’m not simply talking about the fact that the push in favor for baning ritual slaughter always comes mainly from bigots (antisemites during the 1840-1940 period; anti-turkish-arabic-persian “We’re not racists we’re just having a principled opposition to the islamic barbarity of these brown skinned savages” bigots nowadays) who never really gave a fuck about animal welfare in the first place. I’m talking about the fact that non-ritual slaughter often ends up causing as much if not more pain than ritual slaughter for purely monetary reason.
    *
    In both case, the cattle is killed via cuting the carotid and the jugular. The non-religious slaughter add an electrical jolt supposed to anesthesize the animal.
    That’s when it becomes interesting: we know that the nerves keep sending pain signals to the brain for several minutes. So the whole idea is to causes a loss of consciousness as fast as possible (you don’t hurt when you’re comatose).
    We also know that if the ritual slaughter is performed competently, the fast loss of blood pressure causes rapid loss of consciousness.
    Now the argument in favor of using stun guns and the like is that it makes the absence of pain more certain: the jolt screws up the capacity of the brain to process pain and by the time it should be able to process pain again, there is not enough blood in the animal to allow the brain to function.

  16. laurentweppe says

    It’s all well and good, until you realize that there is as many ways to fuck up jolting your future steack than there is to make it suffer through ritual slaughter.
    And that’s when the real scandal of slaughterhouses arises: if you want Mister Lamb Ribs to suffer a death as painless as possible, you need it to be killed by someone who’s rigorous enough in either their knifing or their jolting: that means you need to have well trained, well paid slaughterhouse employees who have been given the time to do their job correctly.
    And guess what? The food industry does not wants to diminish its profits, while most consumers are unwilling to spend more money on their meat. So the slaughterhouses everywhere cut corners and try to increase as much as they can their production. So they’re not paying for the formation of their employees, their not giving them pays high enough to encourage them to be careful and dainty, and the cadences they impose makes it hard -even to a competent well trained employee- to do their job correctly.
    So the result is many botched exsanguinations in ritual slaughter, where the animal undoubtedly suffer before dying, and many botched joltings followed by botched exsanguinations in non ritual slaughter: giving Mister Lamb Rib not one, but Two botched executions one after the other.
    So if you really care about the suffering of future steacks, the logic of capitalism is a much bigger problem to you than religious ritual.

    ***

    Post Scriptum:

    The site once again threw me a

    Your comment is awaiting moderation.

    the first time I posted it:
    Everytime-fucking-time I post a comment with more than three links, I get this message, which is actually a polite way to say “the Server is a stupid machine which automatically block every comment with more than two links and send them in the limbo of the web”. So I reposted it in two parts

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