Why Religious Freedom?

Executive Summary

This critical paper on religious freedom and its relationship to the State by Professor Brett Scharffs of the J. Reuben Clark Law School at Brigham Young University poses an important question: why should anyone care about religious freedom? The question here, though, is specifically directed towards those who are indifferent or hostile to, or uninformed about religious freedom. Prof. Scharffs proceeds to examine a number of the crucial debates around freedom of religion and conscience through both an historical prism and by reviewing recent American jurisprudence dealing with this foundational, or as he terms it a “root” freedom. The arguments made by Prof. Scharffs are particularly cogent. Firstly, he articulates why religious freedom is a distinct freedom with deep historical and philosophical roots, distinct from freedom of speech, association, and assembly yet inextricably bound to them and they to it. He cautions against direct or indirect attempts to sever fundamental freedoms from the root of religious freedom -an act which would result in the withering of these related freedoms. Secondly, in his examination of the role of the State vis-a-vis the guarantee of religious freedom he offers a valuable and timely distinction between what he terms monist and dualist views. Prof. Scharffs cautions against both secular and religious monism in which religious freedom and other freedoms are viewed as gifts of the State to citizens which can likewise be taken back by the State. He advocates for a dualism in which the State acknowledges the core principle that human rights are understood to be born by all human beings and derived from our inherent characteristics of reason and conscience and our ability to have empathy and compassion for our fellows. Prof. Scharffs raises grave concern about what he perceives to be “an erosion of the strong commitment to dualism that underlies not just the human rights worldview but most of Western history.” — Dr. Andrew P.W. Bennett, Program Director, Cardus Law

Introduction

Religious freedom: Is it the grandparent of human rights, or the neglected stepchild? As with most false dichotomies, the answer is both. It is the grandparent of human rights as well as the neglected stepchild. But it is also the underappreciated core, or taproot, of human rights.

In this essay I will discuss a deceptively simple and surprisingly controversial (even “provocative”) question: Why should we care about religious freedom?1

For the seeker of religious truth, the answer may be obvious: Religious freedom creates the conditions, the “constitutional space,”2 for investigation and the pursuit of truth. But what about those who fall into other groups? What about the religiously committed—who are confident they are in possession of religious truth? Or the religiously indifferent—who are not much interested in religion or spirituality? Or those who are affirmatively hostile to religion—those who believe religion does more harm than good? Should they—should we—care about religious freedom?

I would like to provide three reasons for suggesting that they—and all of us—should care deeply about freedom of religion (and belief). As I begin, I’d like to make two preliminary notes. First, the human rights documents’ inclusion of “and belief"3 in the formulation of the protection of freedom of religion is important, since it carves out space to protect and respect religious as well as non-religious bases for belief. In the words of the UN Human Rights Committee, it protects “theistic, non-theistic, and atheistic belief, as well as the right not to profess any religion or belief.”4

The second preliminary note is to acknowledge that there are many important instrumental reasons why religion and religious freedom are important. For example, one recent study estimates that religion in America contributes $1.2 trillion to the American economy—much in the form of education, health care, care of the homeless, drug and addiction counselling, marriage counselling, and so on.5 There is also evidence that religious freedom positively correlates with a number of other important social and political goods.6 My focus is a little different—not on the good that religion does, but on why we should care about religious freedom itself, or the freedom to choose religion.

The reasons I will focus on are these:

First is the role of religious freedom as a historical foundation for constitutional, political, civil, and human rights. I will suggest that without freedom of religion and belief (FORB), the entire human rights project may collapse from its own weight. Second, I will argue that FORB is necessary if we are to resist statism and other monistic views of state power. And third, I will suggest that we may not have the intellectual, political, or rhetorical resources to defend conscience if we do not respect and protect freedom of religion and belief.

1. Historical Importance of FORB (Freedom of Religion and Belief)

As a matter of history, religious freedom is among the first and foundational human rights.7 The story of the emergence of FORB as a human right is complex.8 But think about the other important civil and political rights that we bundle together with religious freedom—freedom of speech, freedom of the press, freedom of assembly, and freedom of association, among others.9 As a matter of history, freedom of speech arose in large measure as an effort to protect religious dissenters and their right to express and advocate for their religious views.10 As a matter of history, freedom of the press was a battle fought in large measure over the printing of the Bible.11 Freedom of assembly, likewise, was in large measure historically a struggle for the right of minority religious communities to gather and worship together.12 Freedom of association, closely related, includes the right to associate with those who share our beliefs and commitments, including religious communities and religiously affiliated institutions such as schools and universities.13

Even non-discrimination norms (which these days are often conceptualized as being in tension with FORB) arose in large measure as efforts to stamp out discrimination on the basis of religion—for example, discrimination against Catholics and Jews in the United States.14 The non-discrimination provisions of international human rights documents as well as the US Civil Rights Act all include prohibitions on the basis of religion as a key component of the concept of non-discrimination.15

My claim (directed to the committed, the indifferent, and the hostile) is simply this: Freedom of thought, conscience, and belief, including foundationally freedom of religion, is historically the taproot16 of the tree of human rights that was planted with the Magna Carta (drafted by a religious leader, the archbishop of Canterbury Stephen Langton),17 nourished by the Declaration of Independence (with its inalienable rights with which human beings are endowed “by their Creator”)18 and the French Declaration of the Rights of Man (which describes the foundational rights it identifies as “sacred”),19 given global recognition in the Universal Declaration of Human Rights (UDHR),20and turned into globally recognized and protected rights protected by international treaties such the International Covenant on Civil and Political Rights (ICCPR)21 and the European Convention on Human Rights (ECHR),22 among others,23 and scores of post–World War II constitutions.24

This is my question: can we expect the leaves and branches to thrive, or even survive, if the roots have been cut? Barrister Simon McCrosson from the United Kingdom has described what he called “cut-flower” culture—enjoying something beautiful, after cutting it from its roots, without recognizing that cut flowers are destined to fade, wither, and soon die. This can be the consequences of severing the taproots of freedom; or of disconnecting our freedoms from their moral foundations.

Consider the controversy over the presence of the crucifix in public schools in Italy. From an American perspective such a display would clearly violate the Establishment Clause. But consider the surprising strength of the Italian position. The argument, most clearly articulated in lower-court opinions in Italy, was that it was Catholic doctrine (concerning the dignity of humanity) and Catholic culture (with its commitment to equality) that created the conditions where human rights could be recognized, embraced, and given legal protection.25 The crucifix is a symbol of that religious doctrine and culture that created the soil out of which human rights could grow, at least in Italy, and perhaps beyond. According to this argument, to prohibit the crucifix is not only to forget or reject that history, but it is a kind of arrogant patricide—the children, who enjoy the human rights bequeathed by the parent, banishing, exiling, or ejecting that parent in the very name of the rights they enjoy.

A popular argument these days is that FORB is an unnecessary, or redundant, human right, since much of what is protected by FORB would be protected by freedom of speech, freedom of the press, freedom of assembly, and freedom of association.26 If we imagine rights as a kind of bundle, then perhaps removing one stick (FORB) will not materially weaken the strength of the bundle.

But I think we have to concede that religious claims are among the most heartfelt and most morally serious claims made by human beings, since they appeal not only to deeply held conscientious beliefs, but often also to what people believe God asks or demands of them. If we are unwilling to protect religious speech, should we expect other types of speech to be protected, types of speech that may be less central to human identity and meaning? If we are unwilling to protect the freedom of the press for religious speech, should we expect other types of publications to be given robust protection? If freedom of association is denied for the religious, can we expect other types of association to be given legal protection?

I believe these questions answer themselves—if we are unwilling to protect religious freedom, which lies at the core of human identity and meaning, then we should not expect our political, legal, and social institutions to protect other important civil and political rights.

II. Resisting Statism

My second answer to the question, Why religions freedom? concerns marshalling intellectual and cultural resources to resist statism.

I’ve recently become concerned that in our lifetimes we are in the midst of a larger conflict than we often recognize. What I have in mind is a world-defining struggle between two dramatically different visions of the state and its relationship with its people.

The contest I have in mind is between what I will call monism (which is inclined toward various types of statism), and dualism, or the idea that the state’s domain over our lives is in some important way subject to limits that lie outside and beyond the state itself.27

Dualism is an old idea, found in Jesus Christ’s answer to the lawyer, who asked whether it was lawful to pay taxes. Jesus’s answer expresses a worldview that was already normatively powerful, yet also disruptive, two thousand years ago.

As recorded in the Gospel of Mark:

They brought [a coin]. And he saith unto them, Whose is this image and superscription? And they said unto him, Caesar’s.

And Jesus answering said unto them, render to Caesar the things that are Caesar’s, and to God the things that are God’s. And they marvelled at him. (Mark 12:16–17 KJV)

This reflects what I am calling dualism—the idea that there are certain claims that Caesar, or state authority, makes on us, and other claims that God, or divine authority, makes on us.

Today the key characteristics of a dualist understanding of the state is that the state is justified in large measure by its success in protecting individual liberty, that government is subject to specific limitations and the rule of law.28

A. Dualism Versus Monism 

Political systems can be founded on either dualist or monist understandings of the scope of the state’s power, jurisdiction, and authority.

In the fourth century there was a world-defining struggle between the Roman Empire and emergent Christianity. For the Romans, Caesar was a god, so there was no dualism between the things that are Caesar’s and the things that are God’s. But since the fourth century, in Europe at any rate, this dualism has persisted.

To be sure, when we posit dualism, we don’t have the answers to all our questions: but we focus on what the question is—what are the proper boundaries between religion and the state; between conscience and state power; between individuals’ inalienable rights and the legislative and regulatory demands of the state?

Answering the questions will require ongoing navigation, but one answer is off the table: that is the statist answer found among statists of all varieties, be they religious or secular, that there are no limits on the state’s power or jurisdiction, and that rights are really just gifts bestowed by the state on individuals, gifts that can be taken as well as given.

To a very significant extent, the human rights project at the end of World War II that culminated in the Universal Declaration of Human Rights was a reaction to the strong state monism of the Nazi regime, where state power trumped conscience, and where the government invoked emergency powers to overcome claims to political and civil rights.29

The preamble of the UDHR begins, “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”30 This initial recognition reflects the dualist intuition that there are interests weighty enough to be constituted inalienable rights—things the state is obliged to respect and protect.

And then in a passage that must be read against the vivid recent memory of Nazi and Japanese imperialist atrocities, the preamble to the UDHR continues, “Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind.”31 In these words we hear an echo of the conviction awakened by World War II, “Never again!”32

The UDHR then declares in article 1: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”33

Note that this declaration posits a dualism that places limits on the state’s authority. Human rights are asserted to be things with which all people are born, endowments based on our human characteristics of reason and conscience, as well as our capacity to have genuine regard for each other.

I suggest that the unease many feel toward human rights is based on an erosion of the strong commitment to dualism that underlies not just the human rights worldview but most of Western history.

B. Historical Development and Manifestations of Dualism 

This dualism is present in many forms and has undergone many instantiations.

We find an early fifth-century Augustinian version of it: The church as a spiritual City of God, in contrast from the material Earthly City.34 Augustine argued that although Christianity had been adopted as the official religion of the Roman Empire, the church should be concerned with the mystical heavenly city (the new Jerusalem), rather than with earthly politics.35

He contrasted the early pleasures of the Earthly City with the eternal truths of the City of God.36 He viewed human history as an engagement of universal warfare between God and the devil.37 He identified the Catholic Church with the City of God and political and military powers aligned against it as the City of the Devil.38

In the thirteenth century, St. Thomas Aquinas articulated another version, with an emphasis on natural reason, natural theology, and natural law.39 Aquinas differentiates among four kinds of law: eternal, natural, human, and divine.40 Eternal law is the law by which God governs all creation.41 Natural law is human “participation” in the eternal law and is discovered through reason.42 Natural law is based on first principles, including the first precept that good is to be done and evil avoided.43

We also see it in the idea of “two swords” articulated in the papal bull Unam Sanctam, issued in 1302 by Pope Boniface VIII, with one sword being the “spiritual sword” controlled by the church and the other being the “temporal sword” controlled by the state.44

A variation of this dualism is also found in Martin Luther, and his two kingdoms doctrine, which held that God rules the world in two ways, the “left-hand kingdom,” through secular law and churchly government, and the “right-hand kingdom,” his spiritual kingdom through the gospel and grace.45 According to Luther, the earthly kingdom includes everything we can do and see in our bodies, including things done in the church. The heavenly kingdom includes only faith in Christ, and is expressed in the slogans “Christ alone” and “faith alone.”46

It is expressly evident in John Locke. In his influential Letter Concerning Toleration, Locke declares, “I esteem it above all things necessary to distinguish exactly the Business of Civil Government from that of Religion and to settle the just Bounds that lie between the one and the other. If this be not done, there can be no end put to the Controversies that will be always arising between those that have, or at least pretend to have, one the one side, a Concernment for the Interest of Mens [sic] Souls, and, on the other side, a care of the Commonwealth.”47 He goes on to explain, “The Commonwealth seems to me to be a Society of Men constituted only for the procuring, preserving, and advancing of their own Civil Interests.”48 “Civil Interests I call Life, Liberty, Health, and Indolency of Body; and the Possession of outward things, such as Money, Lands, Houses, Furniture, and the like.”49

C. American and French Revolutions...and Canada 

1. The United States

By the time of the French and American Revolutions, this dualism was an important, defining feature of both revolutions and how they were conceptualized by the revolutionaries.

Consider, the central declaration used to justify independence from England in the US Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.50

The right to revolution arises when governments fail to respect this dualism, when the basic unalienable rights are not recognized and protected.51

The Constitution specifically addresses the state side of the dualist equation, although the first ten amendments (the Bill of Rights) were in all probability a condition precedent of getting enough states to ratify the Constitution for it to take effect.52 The Free Exercise and Anti-Establishment provisions of the First Amendment reflect this dualism. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”53 The prohibition of a national state church and the guarantee of the free exercise of religion both reflected the dualist mindset of articulating limits to state power.

2. France

Even the French Revolution, which was much more secular in orientation than the US Revolution, and much more of a revolution against an established church than the American Revolution,54 expressed itself in similar natural law language that presumed a dualism with the state and religion representing different spheres or categories of social organization.

Strongly influenced by the doctrines of natural reason, natural law, and natural rights, the French declaration popularly known as the Declaration of the Rights of Man and of the Citizen asserted that the rights of human beings are universal, and valid at all times and in all places. Approved by the National Assembly of France on August 26, 1789, the preamble begins:

The representatives of the French people, organized as a National Assembly, believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have determined to set forth in a solemn declaration, the natural, unalienable, and sacred rights of man, in order that this declaration, being constantly before all the members of the Social body, shall remind them continually of their rights and duties.55

Article 1 declares: “Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.”56 Article 2 states, “The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.”57

Like the American Revolution, there is a powerful and pervasive dualism underlying the French Revolution. The rights declared are asserted to be “natural, unalienable, and sacred,” things with which we human beings are born, and government is under a duty to protect these basic rights including freedom of religion, freedom of association, and freedom of speech.58

3. Canada

As Professor David Novak reminded us in his keynote address at the Oxford International Consortium of Law and Religion Studies conference in September 2016, the preamble of the Canadian Charter of Rights and Freedoms expresses a similar dualism, with a preamble that declares, “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.”59 Enumerated fundamental freedoms include “freedom of conscience and religion,”60 as well as “freedom of thought, belief, opinion and expression,”61 the freedom of “peaceful assembly,”62 and the “freedom of association.”63

I did find it interesting and noteworthy that Professor Novak acknowledged that many secularists dismiss this preamble language as a “sop” thrown to traditionalists, and he also agreed that only thirty years later it might be unlikely that such an acknowledgment of the limits on and foundations of state power would be included if the Charter were being adopted today.64

4. Dualism: Fish Seeing Water

Indeed I would maintain that dualism is such a strong and axiomatic aspect of Western constitutional systems that we hardly see it for what it is—a remarkable rejection of the monist alternatives, various forms of statism that may find themselves in a strong alliance with a particular religion (Such as Russia and the Russian Orthodox Church,65 or as exemplified increasingly today by Hindu nationalism in India66), states who assert a posture of control over religion (such as China and its five recognized and state-sponsored and controlled official religions67), or even states dedicated to the strict limitation of religion (here I am thinking of the Soviet Union68), or even the obliteration of religion (Soviet-era Albania).69

My thesis—or worry, really—is that today we are engaged in an epochal struggle between monism and dualism, between statist ideologies that do not recognize any power above and beyond the state, and dualist ideologies that base state legitimacy in large measure on the extent to which the state respects rights that precede and do not depend on the state for recognition.

D. Human Rights

The challenges to dualism today come from both the Right and the Left.

1. Traditionalists (Including Some Religious Voices)

The challenges to dualism today come from a variety of places, including non-Western voices who assert that human rights are simply a Western invention and Western imposition.70 These are typically not the voices of the powerless, but of the powerful (typically those holding state power), who want to promote various nationalist or statist projects.71 Increasingly, in an era noteworthy for religion-inspired terrorism, many of those voices are more specifically targeted at religious freedom itself.72

2. Progressive Critiques (Including Some That Are Openly Hostile to Religion)

But there is a more specific and sustained attack not only on religion but also on religious freedom by those who find religion and those who defend religion in the name of religious freedom to be a backward and benighted obstacle of their progressive visions of an equalitarian society dominated by non-discrimination norms.73Never mind that those norms are also part of the universal human rights project. So one progressive strategy is to promote these non-discrimination norms to the exclusion of the freedom norms that also exist in human rights—not just freedom of religion, thought, conscience, and belief, but also freedom of speech, association, and assembly.

For example, in September 2016, in a report titled “Peaceful Coexistence,” the chairman of the US Commission on Civil Rights, Martin R. Castro, called the phrases “religious freedom” and “religious liberty” “code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, [and] Christian supremacy.”74 He said that “today, as in the past, religion is being used as both a weapon and a shield by those seeking to deny others equality.”75

One of the report’s principal findings was that “religious exemptions to the protections of civil rights based upon classifications such as race, color, national origin, disability status, sexual orientation, and gender identity, when they are permissible, significantly infringe upon these civil rights.”76

Now, of course, it is not that religious freedom is never used rhetorically by racists, homophobes, Islamaphobes, and Christian supremacists, but there is something startlingly reductive about simply equating religious freedom as some sort of secret code for discrimination.

This is especially blinkered when so much of the discrimination that takes place around the world is discrimination against people on the basis of their religion, including contemporary genocides and massive forced migrations. To say that religious freedom is primarily an idea in conflict with civil rights displays a degree of ignorance that can only be described as stunning and massive.

But Castro’s conceptualization of religious freedom and civil rights as being in conflict has become quite common. In the United States, at least, for the past ten years or so, there has been a sustained and deliberate effort by the progressive Left to pit religious freedom against non-discrimination. This is largely a product of the struggle over gay rights in general, and gay marriage in particular. In demanding complete social acceptance of gay marriage, any who oppose it on any grounds are quickly labelled as homophobic,77 and any who would seek conscientious exemptions from participating in it, including religious groups, religiously affiliated institutions (such as religious universities), religious business owners, government employees, and even religious employees of secular businesses are under tremendous pressure to be silent in all respects with any opposition to the sexual rights agenda.78

Last year the issue was gay marriage; this year it is transgender rights.

As I try to understand the zeitgeist behind these efforts, it is apparent that the primary value is equality, the primary legal mechanism for achieving equality is non-discrimination laws, and the definition of discrimination rests on a kind of radical subjective hedonic subjectivism.

The strong insistence on non-discrimination, and the wholesale rejection of accommodations or exemptions for those with conscientious objections to a legal mandate, reflects the attitude of monism. Accommodation becomes not an adjustment the state makes in the face of religious or other conscientious requirements; it becomes something the state demands from dissenters who are required to fall into line.

An insistence on a monistic view is illustrated in the opposition to Trinity Western University’s decision to open a law school. The school requires students to sign a Community Covenant that, among other things, does not recognize same-sex marriage.79 The Law Society of British Columbia decided not to approve the law school on the grounds that this was discrimination on the basis of sexual orientation. The Court of Appeals in British Columbia sided with Trinity Western, declaring, “A society that does not admit of and accommodate differences cannot be a free and democratic society—one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal. This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is itself intolerant and illiberal.”80 The Court of Appeals of Ontario, in contrast, sided with the Law Society there, emphasizing the harm caused to LGBTQ people by Trinity Western’s policy.81 The case in all likelihood is destined for the Supreme Court of Canada.

III. Conscience

I will only briefly address my third reason for thinking we should all care about religious freedom. Without freedom of religion and belief, there is no reliable basis for protecting and respecting conscience.

Recall that article 1 of the UDHR identifies “reason and conscience” as two of the basic endowments that define us as human beings, and the basis of human dignity.82

A. Official Ideology: Public Reason

If the official ideology of dualism is some variation of natural reason and natural rights (or perhaps Kantian deontology or social contract theory), the official ideology of monism is public reason, with its tendency to discount conscience—either significantly or altogether.

The assertion that public reason is hostile to conscience needs some explaining. Recall that the first public reason theorist was not John Rawls or even Immanuel Kant. It was Thomas Hobbes, and he was absolutely clear that the sovereign spoke in the voice of public reason, and subjects gave up their claims of conscience in exchange for the protection offered by the sovereign from the state of nature, where life is nasty, brutish, and short.83

Public reason (whether Hobbes’s, Kant’s, or Rawls’) always makes the same initial normative move, differentiating between public reason and private reason, and crediting the one and discrediting the other, at least in matters of public life.84

The problem for those who value conscience is that it often speaks to us in registers that count paradigmatically as “private reason.” Consider the metaphors we use for conscience—a prick of the heart,85 a feeling in one’s gut,86 a powerful internal or even sometimes external voice that declares to us, “Here I stand, I can do no other.”87 These are not public reasons; they are private reasons. And public reason is committed to the marginalization of private reason.

Consider the debate over religious exemptions—for doctors performing abortions, or public officials performing marriages. From a public reason perspective, there is no good reason to provide an exemption. For a statist, the key consideration may be a value such as non-discrimination, which demands that everyone be treated equally, and no special treatment should be afforded to those with special or idiosyncratic religious or conscientious views. Arguments like these are familiar in statist systems.88

It is true that public reason may claim to value religious freedom or claim to value conscience (perhaps based on an argument from the “original position”), but we can also expect public reason to interpret religious freedom in a minimalist way, for example in the manner Justice Scalia treats it in Employment Division v. Smith, prohibiting laws that specifically target religion but permitting those that burden religion, even severely, as long as they are “general” and “neutral” in character.89 General and neutral laws are a classic public-reason formulation of the type of regulation that is legitimate, but as we learned from the Smith case, this does not result in a robust protection of either conscience or religion.

B. History of Protection of Conscience 

It is important to remember that as a historical matter, freedom of religion was the foundation of the broader recognition of freedom of conscience. The history of conscientious objection began with claims by organized religious communities such as Quakers, who had religious doctrinal objections to serving in the military.90 Over time (several centuries actually), the protection of conscientious objection for those who belonged to religious groups was expanded to cover individuals with religious objections even if their church did not itself have an institutional opposition to military service,91 and then to those with claims when the government was unsure about whether their conscientious objection was religious or not,92 and eventually—by analogy— to those who were adamant that their basis for objecting to military service was not religious. 93

The point is that it was not a general respect for conscience that led to conscientious protections of religious conscience, but the protection of religious conscience that led to a broader recognition of conscience as a fundamental human value.

C. From Gobitis to Barnette

US history offers cautionary tales about what happens when the values of uniformity are given priority over the value of conscience.

Consider the case of Jehovah’s Witness children who objected to being compelled to pledge allegiance to the US flag. In the late 1930s, at a time of national disunity, school boards began passing rules requiring all students to pledge allegiance to the flag.

One of these rules was adopted in Minersville, West Virginia. The provision had been enacted specifically to coerce children who were Jehovah’s Witnesses to salute the flag after they refused to participate in patriotic observances on conscientious grounds.94 It was only after Lillian Gobitis (a seventh grader) and William Gobitis (a fifth grader) asserted religious reasons for not participating in the pledge that the school board in Minersville passed a resolution transforming the flag salute into a legal obligation.95 Immediately thereafter, the school superintendent stood at a public meeting of the school board and dramatically expelled the Gobitis children for insubordination.96 It was this “state action” that the Supreme Court would later uphold. Writing for the majority, Justice Felix Frankfurter declared: “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”97

The court held that the rule must apply to everyone because it was a neutral rule of general applicability. Ignoring the history of its enactment, the Supreme Court called the mandate “legislation of general scope not directed against doctrinal loyalties of particular sects.”98

The Supreme Court’s decision set off a wave of anti-Witness persecution that swept the country.99 Hundreds of instances of vigilantism against Jehovah’s Witnesses who refused to salute the flag were reported in just the week following the decision.100 These included mob beatings, burning of Jehovah’s Witnesses Kingdom Halls, and attacks on houses where Jehovah’s Witnesses were believed to live. As Harvard Law professor Noah Feldman has described the reaction, “To some horrified observers, it appeared that the Supreme Court, by denying the children the constitutional right to be exempt from saluting, had declared open season on the Witnesses.”101

One of the most notorious episodes took place in York County, Maine:

Two Witnesses were beaten in Sanford on June 8, when they refused to salute. The following day in Kennebunk, a carload of men conveniently equipped with throwing-size rocks “just happened to stop” in front of the Jehovah’s Witness Kingdom Hall which doubled as the home of the company servant. The Witnesses, already jittery from a fortnight of tension, greeted the visitors with shotgun fire, seriously wounding one. Six Witnesses were arrested for attempted murder. In the meantime, an enraged mob of 2,500, failing to reach the prisoners, sacked and burned the Kingdom Hall, then drifted over to Biddeford to attack houses suspected of containing Witnesses.102

Among other incidents, the whole adult population of Litchfield, Illinois, gathered to attack sixty Jehovah’s Witnesses; in Rawlins, Wyoming, a crowd led by the American Legion descended on a trailer camp set up by Jehovah’s Witnesses in preparation for a regional meeting and forced them across the state line; in Nebraska, a Witness was lured from his house, abducted, and castrated; in Little Rock, Arkansas, armed workers from a federal pipeline project beat Witnesses, shooting two; in Klammath Falls, Oregon, a mob of a thousand townspeople stormed a Kingdom Hall.103 These reactions are a cautionary tale of how for people will go to coerce uniformity when the value of uniformity is viewed as being extremely important.

What is remarkable about this story is that only three years later, the US Supreme Court did something that—believe me—it does not do very often. It said it was wrong.

The Supreme Court reversed itself. In West Virginia State Board of Education v. Barnette, the court held that when state officials compelled participation in the flag salute and pledge, they “transcend[ed] constitutional limitations on their power and invade[d] the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”104 In one of the most quotable (and quoted) lines in the history of the Supreme Court, Justice Jackson, writing for the court, declared: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”105

Gone was all talk (except in Justice Frankfurter’s acerbic dissent) of this being “legislation of general scope not directed against doctrinal loyalties of particular sects.” David Manwaring describes Frankfurter’s dissent as “a prolonged and very personal cry of outrage.”106 Feldman agrees: “Frankfurter took the reversal of his Gobitis opinion as a professional and personal calamity.” Feldman describes Frankfurter’s dissent as “the most agonized and agonizing opinion recorded anywhere in the U.S. reports.”107 Frankfurter gave an impassioned defence of his philosophy of judicial restraint, and again emphasized the secular regulatory character of the law. For Frankfurter, laws that burden religious exercise are constitutional. He describes the law as a “non-discriminatory law” that “may hurt or offend some dissident view.”108

But it wasn’t easy. In all, it took the Jehovah’s Witnesses six trips to the Supreme Court to secure the conscientious right to be free from coercion with respect to the Pledge of Allegiance.109

Occasionally courts conclude that laws which are general and neutral on their face are unconstitutionally targeted at a particular religion. In 1993 practitioners of the Santeria faith in Florida scored a victory for religious freedom when the Supreme Court found that ostensibly general and neutral city ordinances aimed at preventing that religion’s traditional animal sacrifices were unconstitutional, and struck them down.110 Five years later, the Third Circuit Court of Appeals found that a police department could not require two plaintiff policemen to shave their beards in violation of their Sunni Muslim faith, even though the requirement was supposedly general and neutral.111

As these cases illustrate, not only can allegedly general and neutral laws have very different effects on different groups of people, but also the very claim that they are general and neutral at all is often highly suspect. In the current controversies over adoption agencies, same-sex marriage, and the HHS contraceptive mandates it is very difficult to view as general and neutral the underlying rules that aim to change the behaviour, if not the underlying attitudes.

Why do I recount this history of compelled patriotic observances, of the road from Gobitis to Barnette? Because it illustrates how strongly felt can be the idea that the values of unity and uniformity can justify forcing those who disagree to go along with the prevailing view or suffer severe consequences. What we learn from Barnette is that we do not have to force conformity. But public reason has no reason to respect conscience; public reason will demand that everyone be treated the same.

Conclusion

So in conclusion, Why religious freedom? Why should we care?

If we care about human rights, about human dignity, I do not believe these normative constructs can survive if we deny freedom of human beings to live according to the dictates of their conscience.

If we fear statism, monistic states that recognize no limits on their authority, and view rights as gifts bestowed by the state (gifts that may also be taken back by the state), then we need something like a dualist outlook, which differentiates between the sphere of state authority and other spheres of non-state authority. The intellectual resources for a dualist understanding of limited state power are rooted, historically and intellectually, in religious ways of viewing the world. Without religion, I’m not sure we have the intellectual, moral, or philosophical resources to resist the imperial logic of statism.

Finally, if we care about conscience, the existence of an inner feeling or voice that acts as a guide to the rightness and wrongness of our behaviour, we must protect religious freedom. The justifications for the protection of conscience were first and foremost religious justifications, and if religious conscience does not receive protection we should not expect other grounds for conscience to be respected either.