Religious Liberty and the Law

Theistic and Non-Theistic Perspectives

Angus J. L. Menuge

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351982665
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Questions of religious liberty have become flashpoints of controversy in virtually every area of life around the world. Despite the protection of religious liberty at both national and supranational levels, there is an increasing number of conflicts concerning the proper way to recognize it – both in modern secular states and in countries with an established religion or theocratic mode of government.

This book provides an analysis of the general concept of religious liberty along with a close study of important cases that can serve as test beds for conflict resolution proposals. It combines the insights of both pure academics and experienced legal practitioners to take a fresh look at the nature, scope and limits of religious liberty. Divided into two parts, the collection presents a blend of legal and philosophical approaches, and draws on cases from a wide range of jurisdictions, including Brazil, India, Australia, the USA, the Netherlands, and Canada.

Presenting a broad range of views, this often provocative volume makes for fascinating reading for academics and researchers working in the areas of law and religion, legal philosophy and human rights.

Part I

The nature of religious liberty

1 The biblical worldview context for religious liberty¹

Paul Copan

Introduction: Nietzsche’s madman and human rights

Many scholars are familiar with Friedrich Nietzsche’s “Parable of the Madman.” The madman – who represents the “prophetic” voice of Nietzsche himself – comes running into the marketplace, lantern in hand, crying “I seek God! I seek God!” His fellow atheists there – unaware of the weighty implications of God’s non-existence – mock and laugh at him: Is he lost? Is he hiding? Has he gone on a voyage? No:

We have killed him – you and I. All of us are his murderers. But how did we do this?…Do we hear nothing as yet of the noise of the gravediggers who are burying God? Do we smell nothing as yet of the divine decomposition? Gods, too, decompose. God is dead. God remains dead. And we have killed him.

The madman continues his lament and then falls silent. His listeners are dumbstruck, staring at him in astonishment. He throws down his lantern, and then exclaims:

I have come too early…my time is not yet. This tremendous event is still on its way, still wandering; it has not yet reached the ears of men. Lightning and thunder require time; the light of the stars requires time; deeds, though done, still require time to be seen and heard. This deed is still more distant from them than most distant stars – and yet they have done it themselves.

(Nietzsche 1974, 181–182)

As the madman himself, Nietzsche here is rightly exposing the earth-shattering consequences of Western civilization’s shift away from belief in God (the “killing” of God), although most Westerners (the ignorant atheists in the marketplace) have not begun to grasp the implications of God’s non-existence (“I have come too early”).

Aside from the biblical faith’s actual historical influence on human rights discourse in the West, the latter’s increasing rejection of the metaphysical foundation of God’s existence as a means to ground human worth (the imago Dei) leaves us with a kind of edifice complex: the house of human rights and religious liberties cannot be properly sustained without the proper metaphysical footing to uphold them. Nietzsche acknowledged this: “Moral judgments agree with religious ones in believing in realities which are no realities….There are altogether no moral facts.” Indeed, he contends, morality “has truth only if God is the truth – it stands or falls with faith in God” (Nietzsche 1968, 55, 70) – or to be more precise, it stands or falls with whether God exists or not, which is an ontological matter, not merely an epistemological one (“faith in God”).

Nietzsche is not alone in seeing the moral implications of God’s absence. Atheist philosopher Kai Nielsen puts it this way:

We have not been able to show that reason requires the moral point of view or that all really rational persons, unhoodwinked by myth or ideology, not be individual egoists or classic amoralists. Reason doesn’t decide here.

The picture I have painted for you is not a pleasant one. Reflection on it depresses me.…The point is this: pure practical reason, even with a good knowledge of the facts, will not take you to morality.

(Nielsen 1984, 90)

Jean-Paul Sartre found these implications distressing too:

It [is] very distressing that God does not exist, because all possibility of finding values in a heaven of ideas disappears along with Him; there can no longer be an a priori Good, since there is no infinite and perfect consciousness to think it. Nowhere is it written that the Good exists, that we must be honest, that we must not lie; because the fact is we are on a plane where there are only men. As Dostoievsky [sic] said, “If God didn’t exist, everything would be possible.”

(Sartre 1957, 22)

And atheist philosopher and former moral realist Joel Marks also acknowledges the connection between God and morality:

I have thrown over my previous commitment to Kantianism. In fact, I have given up morality altogether!…The long and the short of it is that I became convinced that atheism implies amorality; and since I am an atheist, I must therefore embrace amorality….The religious fundamentalists are correct: without God, there is no morality.

(Marks 2015)

Then there is Bertrand Russell, who notes that we are “but the outcome of accidental collocations of atoms” and that “only on the firm foundation of unyielding despair, can the soul’s habitation henceforth be safely built” (Russell 1963, 41). And cognitive scientist Steven Pinker says, with regard to nihilism, that “it can only say that love, beauty, morality, and all that we hold precious, are just figments of a brain pursuing selfish evolutionary strategies” (Pinker 2006, 7). Pinker brings us back to Nietzsche’s point – that an atheism that still affirms objective moral values and intrinsic human dignity engages in a hijacking of theistic metaphysics.

In this essay, my primary focus is on the historical question of the connection between the biblical faith and its immense democratizing influence in the West and elsewhere. I only indirectly mention the intrinsic metaphysical point – namely, the connection between the existence of a good God and intrinsic human value, and thus the non-arbitrary basis for human rights. Non-theistic alternatives simply fail to account for objective human values and duties, and for personal responsibility (I extensively address this metaphysical argument elsewhere; see Copan 2008, 2012, 2013a, 2013b, 2013c).

To support my claim, I make the following four points. First, I give a brief word on “rights.” A right is a relational title and therefore requires an ultimate ground or justification. Second, the concept of “religion” must be revisited. As many scholars have observed, the term “religious” is itself vague, unhelpful and even problematic. For example, the Enlightenment “religious-secular” compartmentalization is deeply flawed. Also, traditional “religions” like classical Buddhism reject belief in God or divinity – a common assumption about religion. A more consistent approach would be to speak of the right or freedom to hold and change one’s worldview – the personal embrace of what one takes to be ultimate, including beliefs regarding origins, destiny, human nature, and meaning – without fear of punitive legal measures. Third, I consider various historical gains for humanity that have been shaped by devotion to a biblical worldview; these include modern science, bioethics, human rights, democracy and key moral reforms. And fourth, I explore some possible historical alternatives to explain the emergence of human rights (and “religious liberty”) discourse – the “democracy” of ancient Greece, the Renaissance or the Enlightenment. I argue that each of these is inadequate. Our human rights language is the legacy of the Judeo-Christian tradition of the imago Dei, the notion that human dignity and worth are divinely bestowed. Furthermore, such dignity and worth are not mere cultural by-products or historical inventions. The discourse of freedom of conscience and other human liberties has been nourished by persons transformed and inspired by this biblical vision. To assume that existing legislative reforms and/or judicial decisions can adequately prop up a vision of human dignity and effectively buttress human rights discourse is to overlook the deeper and broader leavening effect that has shaped Western civilization.

1. Rights and religious liberty

The United Nations Universal Declaration on Human Rights of contains this critical affirmation:

Everyone has the right to freedom of thought, conscience, and religion; this right includes the freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

(Article 18)

What is a right? A right – including that of religious liberty – is a kind of title or legitimate claim to something. A right is what is due to a person – the right to be treated in a particular way by others. Moreover, these rights are bound up with corresponding duties. A professor owes or has a duty to her student to give him a just grade – a mark reflecting the student’s quality of work, to which the student is entitled; this is the student’s right. Also, we may need to distinguish between prima and ultima facie duties. We have a duty not to harm a person unless that purported (prima facie) “harm” is part of a larger moral framework that is aimed at the overall or ultimate flourishing for that person (ultima facie). Further, while we are always duty-bound to rights-bearers, we may have duties concerning non-rights-bearing objects. For example, while sequoia or redwood trees do not have rights, I am duty-bound not to wantonly raze such a forest to the ground.

If rights “are what respect for worth requires” (Wolterstorff 2012, 45), what is the source or justification of the title or claim in question? True, a right entails the worth or excellency of the rights-bearer. But the right – the claim or title – must be rooted in or spring from some authority or source that bestows such a status; a right is not self-standing but is rather a relational title, requiring a ground or justification that is not merely free-floating. This title requires a metaphysical grounding to make sense of this entitlement (Montgomery 1986, 78–80; Wolterstorff 2012). A Kantian or Rawlsian ethical stance, say, may offer epistemological insights into making moral judgments (e.g., Kant 1996a, 1996b; Rawls 1999; see Copan 2013a), but, as such, it is metaphysically incomplete, as this stance simply takes for granted human dignity and freedom without justification.

2. The problem of defining “religion”

What is “religion”? In his book When Religion Becomes Evil, Charles Kimball claims that religion has caused more violence than any other “institutional force in human history” (Kimball 2002, 1). Mark Juergensmeyer’s Terror in the Mind of God makes similar claims, insisting that religion is violent by its very nature because it tends to “absolutize and to project images of cosmic war,” and thus what is needed to produce peace and harmony instead is the rational, humanizing influence of Enlightenment values (Juergensmeyer 2000, 159, 242–243). Perhaps we could make a few comments on the “religious” and the “secular.”

First, an irony for such “pro-Enlightenment” claimants is that they are typically not clear on what “religion” is. Someone like Kimball insists that we can all tell the difference between the religious and the secular, between faith and unbelief: “We all know [religion] when we see it” (Kimball 2002, 15). Within the US legal system, “religion” is a “deeply personal” matter. Though we are not told what religion is, it is often treated with suspicion, as potentially divisive, and certainly cannot be considered a knowledge tradition (Beckwith 2006).

So, does belief in “God” or “the divine” constitute what is “religious”? No, it is not so tidy. Certainly, classical Buddhists – though considered traditional religionists – would reject belief in the divine. Indeed, even “secular” political visions may have strongly “religious” overtones. Political leaders have been deified throughout history. Consider how the philosopher Martin Heidegger not only joined the Nazi Party, wore the swastika, “heiled” Hitler, and sang Nazi songs with much spirit, in one speech he declared: “Do not let principles and ideas be the rulers of your existence. The Führer himself, and he alone is the German reality of today, and of the future, and its law” (cited in Ward 2004, 165). Or think of the devotion to Communist dictators such as Stalin, North Korea’s Kim Jong-Il, or Mao Zedong (in the Chinese Communist song “The East Is Red,” Zedong is called “the people’s savior”). And what of the “Unabomber” – the serial killer Ted Kaczynski? He terrorized and harmed people through the use of pipe bombs, and he was not affiliated with any traditional religion. And Juergensmeyer even admits to the existence of “secular nationalism,” which embraces a “doctrine of destiny” and which he claims “is a religion” (Juergensmeyer 1993, 15).

Historian William Cavanaugh points to University of Chicago “religion” scholar Martin Marty, who informs us that “religion divides” and that we need to separate politics from religion. However, given that there are at least 17 definitions of “religion,” he admits that “scholars will never agree on the definition of religion” (cited in Cavanaugh 2009, 28). Cavanaugh wryly comments: “If one is trying, as is Marty, to convince the reader that ‘religion divides’ and ‘religion can be violent,’ then one ought to be clear about what religion is” (Cavanaugh 2009, 28). Cavanaugh considers the “myth of religious violence” to be part of the “folklore of Western societies” (Cavanaugh 2009, 226).

Second, it would seem anachronistic to blame pre-Enlightenment “religion” for all kinds of evils when the ecclesiastical and political in the West had hitherto been intertwined. The intellectuals of the Enlightenment (1650–1800) often attempted to separate the religious from the secular and the church from the state. However, the problem was not “religion” per se, but the exertion of political power in the name of religion. The same is true with the many atrocities carried out in the name of atheism or allegedly “secular” political structures. Thus Cavanaugh advises those who write books entitled When People Do Bad Things in the Name of Religion to be more economical and accurate by using a more appropriate title, When People Do Bad Things (Cavanaugh 2009, 26). We could add here that Cavanaugh persuasively argues that, contrary to the received view of post-Enlightenment critique, Europe’s “religious wars” of Catholics, Lutherans, Zwinglians and Calvinists were not divided along sectarian lines but on political ones; so Catholics might fight against other Catholics, or Protestants might fight with Catholics against other Catholics (Cavanaugh 2009, 142–151).

Third, we should question the category “secular” or “non-religious” as the default stance by which any “religious” claim – say, “humans have dignity because they are created in the image of God” – might be judged. One problem with the secular-as-default position is this: which version or “denomination” of secularism will serve as the foundation to anchor and affirm intrinsic human dignity on which rights such as religious liberty are based? Will it be that of the optimistic “secular humanist” who takes for granted human rights and the duty to aspire to our highest ideals? Or will it be that expressed by Berkeley philosopher John Searle and Harvard evolutionary biologist Richard Lewontin?

According to Searle, we must reject our most fundamental intuitions in favor of physicalism:

Physical events can have only physical explanations, and consciousness is not physical, so consciousness plays no explanatory role whatsoever. If, for example, you think you ate because you were consciously hungry, or got married because you were consciously in love with your prospective spouse, or withdrew your hand from the flame because you consciously felt a pain, or spoke up at a meeting because you consciously disagreed with the main speaker, you are mistaken in every case. In each case the effect was a physical event and therefore must have an entirely physical explanation.

(Searle 1997, 154)

In another work, Searle explicitly states what his – and most of his professional academic peers’ – “religion” is:

There is a sense in which materialism is the religion of our time, at least among most of the professional experts in the fields of philosophy, psychology, cognitive science, and other disciplines that study the mind. Like most traditional religions, it is accepted without question and it provides the f...