Against Free Exercise Reductionism

Prof. W. Cole Durham, Jr.Prof. W. Cole Durham, Jr.International Center for International Center for

Law and Religion StudiesLaw and Religion StudiesReligious Freedom Religious Freedom Discussion SeriesDiscussion SeriesMarch 20, 2013March 20, 2013

Democratic MomentsDemocratic Moments

Copyright: Press and Information Office of the Federal Government of Germany.

The Importance of Religious FreedomThe Importance of Religious Freedom

Why does it have priority status?Why does it have priority status? Freedom of religion Freedom of religion or or beliefbelief Freedom of conscienceFreedom of conscience The ambivalence of the sacredThe ambivalence of the sacred

Plurality and Social PeacePlurality and Social Peace

Protecting plurality is a greater source of Protecting plurality is a greater source of social stability than trying to reduce conflict social stability than trying to reduce conflict by reducing pluralism.by reducing pluralism.

Voltaire on BritainVoltaire on Britain– Single ReligionSingle Religion

– Two ReligionsTwo Religions

– Thirty ReligionsThirty Religions

Is the Right to Is the Right to FORBFORB Redundant Redundant Emergence of set of reductionist arguments that Emergence of set of reductionist arguments that

attempt to reduce FORB rights to other rights: to attempt to reduce FORB rights to other rights: to claim that FORB is redundant.claim that FORB is redundant.

Marshall: Freedom of religion protections could be Marshall: Freedom of religion protections could be covered by a suitably broad form of freedom of covered by a suitably broad form of freedom of expression.expression.

Tushnet: What would happen if the Free Exercise Tushnet: What would happen if the Free Exercise clause was removed from U.S. Constitution? Not clause was removed from U.S. Constitution? Not much.much.

AlternativeAlternative Coverage in the U.S. Coverage in the U.S.

Protection of speech and symbolic expressionProtection of speech and symbolic expression Bans on coerced speechBans on coerced speech Proscription of viewpoint discriminationProscription of viewpoint discrimination Equal accessEqual access Expressive associationExpressive association

Redundancy Claim in International Law Redundancy Claim in International Law Advocate: James Nickel Advocate: James Nickel

Association

Political participation

Lifestyle

Expression Movement

Freedom of thought Assembly Economic liberties

Home

family, privacy

Freedom of religion

Freedom of Religion and Other RightsFreedom of Religion and Other Rights

Free Exercise Reductionism andFree Exercise Reductionism andHosanna-TaborHosanna-Tabor

Is freedom of assembly an adequate alternative?Is freedom of assembly an adequate alternative? Dale Dale (Boy Scout case)(Boy Scout case)

Responses to Redundancy ClaimsResponses to Redundancy Claims

Reductionism Favors Reductionism Favors Secularism over SecularitySecularism over Secularity

IdeologyIdeology NeutralizingNeutralizing French French lacïtélacïté Freedom Freedom fromfrom religion religion Religion consigned to Religion consigned to

private sphereprivate sphere RigidRigid Formal EqualityFormal Equality

FrameworkFramework NeutralityNeutrality American separationAmerican separation Freedom Freedom ofof religion religion Religion accepted in Religion accepted in

open public sphereopen public sphere FlexibleFlexible Substantive EqualitySubstantive Equality

ResponsesResponses Redundance is not a flaw. Redundance is not a flaw.

Generally, greater protection of freedom has been Generally, greater protection of freedom has been afforded by insisting on greater concreteness of rights.afforded by insisting on greater concreteness of rights.

Reductionism fails to send signal of protecting the inner Reductionism fails to send signal of protecting the inner domain of religion.domain of religion.

Religious frames of reference include premises absent Religious frames of reference include premises absent from secular frames of reference. If one accepts the from secular frames of reference. If one accepts the purely secular frame of reference as the only legitimate purely secular frame of reference as the only legitimate and necessary way of looking at the world, there is and necessary way of looking at the world, there is already an anti-religious bias.already an anti-religious bias.

Redundancy Argument Ignores Original IntentRedundancy Argument Ignores Original Intent

Suggests annulling key rights by interpretation.Suggests annulling key rights by interpretation. Unlikely to effectuate repeal otherwise.Unlikely to effectuate repeal otherwise.

Areas Not CoveredAreas Not Covered Internal Forum with absolute protection.Internal Forum with absolute protection. Full range of symbolic and ritual action not Full range of symbolic and ritual action not

covered.covered.– Categories may not stretch.Categories may not stretch.

– ““Stretched” provisions are thinner, more easily overridden.Stretched” provisions are thinner, more easily overridden.

– Loss of historical reference points (clear cases and pivotal Loss of historical reference points (clear cases and pivotal cases may be different).cases may be different).

Secular rights may not protect religious Secular rights may not protect religious interests.interests.

Religious AutonomyReligious Autonomy

Religious autonomy cases not adequately Religious autonomy cases not adequately covered.covered.

Freedom of association doesn’t necessarily Freedom of association doesn’t necessarily protect distinctive organizational forms of protect distinctive organizational forms of religious communities (religious communities (Bahá’íBahá’í case). case).

Freedom of MovementFreedom of Movement

Freedom of movement not sufficient on its Freedom of movement not sufficient on its own to protect religious freedom (own to protect religious freedom (NolanNolan).).

Border prerogatives cannot be used to repress Border prerogatives cannot be used to repress religion, but religious freedom right is a religion, but religious freedom right is a crucial feature.crucial feature.

Public safety and public order issues may be Public safety and public order issues may be easier to assert in travel context.easier to assert in travel context.

Freedom of Political ParticipationFreedom of Political Participation

Too much pressure to allow limits in this area.Too much pressure to allow limits in this area. Tendency to restrict religious groups that seem Tendency to restrict religious groups that seem

politically dangerous.politically dangerous. Serif: when religious diversity creates Serif: when religious diversity creates

tensions, states should protect religious tensions, states should protect religious pluralism rather than eliminate the tension by pluralism rather than eliminate the tension by repressing pluralism. But there are practical repressing pluralism. But there are practical pressures to the contrary.pressures to the contrary.

Weakening of ProtectionWeakening of Protection

Loss of historical entrenchment.Loss of historical entrenchment. Rights grow in legitimacy over time.Rights grow in legitimacy over time. Self-induced forgetting of significance of Self-induced forgetting of significance of

historical cases.historical cases.

Deeper Grounds for Distinctive Protection Deeper Grounds for Distinctive Protection

Madison: religious freedom “precedent both in order of time Madison: religious freedom “precedent both in order of time and degree of obligation, to the claims of Civil Society.”and degree of obligation, to the claims of Civil Society.”• Reservation on social contractReservation on social contract• RawlsRawls

Dignitatis HumanaeDignitatis Humanae: the right to religious freedom “is known : the right to religious freedom “is known through the revealed word of God and by reason itself” through the revealed word of God and by reason itself” (religious/secular natural law). (religious/secular natural law).

Religious Freedom is about more than protecting the values of Religious Freedom is about more than protecting the values of secular enlightenment.secular enlightenment.

Religious freedom is about protecting world views: norm Religious freedom is about protecting world views: norm generating, nurturing and transmitting processes.generating, nurturing and transmitting processes.

The The ForgottenForgotten Virtue of Reverence Virtue of Reverence

Paul Woodruff, Paul Woodruff, Reverence: Renewing a Reverence: Renewing a Forgotten VirtueForgotten Virtue

Reverence as the opposite of hubrisReverence as the opposite of hubris Reverence and politicsReverence and politics Reverence as a very broad notion—applicable Reverence as a very broad notion—applicable

across religious and secular domainsacross religious and secular domains

TheThe Significance of Reverence Significance of Reverence

Reverence is crucial for moral striving and Reverence is crucial for moral striving and envisioning that is essential to democracy.envisioning that is essential to democracy.

Reverence is a reminder that human things, Reverence is a reminder that human things, including states, need to be subject to limits. including states, need to be subject to limits.

Reverence is vital to the flourishing of modern Reverence is vital to the flourishing of modern pluralistic societies. pluralistic societies.

Religious Freedom and ReverencReligious Freedom and Reverencee

Religious freedom is vital, and can never Religious freedom is vital, and can never be redundant, because it protects and be redundant, because it protects and cultivates the insights and the wellsprings cultivates the insights and the wellsprings of reverence.of reverence.

Current Needs in Protecting Freedom of Current Needs in Protecting Freedom of Religion or BeliefReligion or Belief

Drawing on the strength of Drawing on the strength of the internal resources the internal resources of religious communities calling for respect for of religious communities calling for respect for the rights of others.the rights of others.

Resisting the Resisting the persecution syndromepersecution syndrome: the tendency : the tendency of groups to engage in oppressive behavior when of groups to engage in oppressive behavior when they acquire power.they acquire power.

Recognizing that Recognizing that secular powersecular power is as prone to lead is as prone to lead to the persecution syndrome as religious power.to the persecution syndrome as religious power.

The Foundational Character of Freedom of The Foundational Character of Freedom of Religion or BeliefReligion or Belief

Historically FoundationalHistorically Foundational Philosophically FoundationalPhilosophically Foundational Institutionally FoundationalInstitutionally Foundational Empirically FoundationalEmpirically Foundational

J. Reuben Clark Law SchoolJ. Reuben Clark Law SchoolBrigham Young UniversityBrigham Young University