Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. Author of FREEDOM OF RELIGION AND THE SECULAR STATE (2012), HUMANITY ENHANCED (2014), and THE MYSTERY OF MORAL AUTHORITY (2016).
(Republished from Talking Philosophy (2012). This analysis still seems correct.)
Peter Singer has written a piece in which he argues that your freedom of religion has not been violated unless the state enacts a law that effectively prohibits you from doing something which is required by your religion. Thus, if it bans killing animals for meat in a certain way prescribed by your religion, that is not actually a violation of your freedom of religion unless your religion makes eating of meat compulsory. If it doesn’t do that, you can comply with the law by not eating meat all!
This is especially neat if you have reasons for thinking that people shouldn’t be (say) eating meat in any event. If some people are driven to give up eating meat in order to comply, you might think that a good collateral outcome, or side benefit, from a law requiring that animals be killed only in a certain way.
To be fair to Singer, though, another example that he gives is public transport – something that he doubtless approves of. If public transport is regulated in a certain way, e.g. to ensure that there is no gender separation, this might mean that certain people cannot comply with both the law and the rules of their (perhaps misogynist) religion. However, Singer suggests, they can’t complain that their religious freedom is being violated unless their religion makes it compulsory for them to use public transport. If it doesn’t, they can comply with the law simply by not using public transport.
Unfortunately, this analysis won’t work. I discuss such an approach in Freedom of Religion and the Secular State, where I conclude that it is not convincing. There’s much to say about this, but perhaps we don’t need to get too deeply into it in this post.
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.
I think that Singer’s argument is, in some ways, too harsh and in some ways not harsh enough. It is not harsh enough if a law bans some practice that actually is required by a religion, provided that the negative effect on the religion is not the purpose of the law, and is merely the result of a general law enacted on some kind of secular ground that is neutral about the truth and false and falsity of various religions – essentially, a law that would have been enacted whether this religion existed or not.
Thus, imagine that some religion actually requires human sacrifice. Nonetheless, the ordinary law of murder does not breach the freedom of religion of its adherents. The law would have existed whether this religion did or not, and it is not aimed at suppressing the religion or persecuting its followers. It has the obvious secular purpose of protecting people from harm. I submit that the practitioners of the religion cannot claim that they are being persecuted, or anything of the kind.
But what if a law bans certain practices that, although not compulsory, are highly valued in the traditions of the religion concerned? What if the law is not a neutral one of general application (like banning loud noises after 1 am) but one tailored to make life just that bit less convenient and enjoyable to adherents of the religion (again, imagine a ban on singing Christmas carols)? This looks like the state is overreaching – it is acting out of a sense of hostility toward a particular religion, not enacting a law that it would have enacted anyway whether the religion existed or not.
Thus the test relates to whether the religion is affected by a religiously-neutral, generally-applicable law (with some entirely worldly purpose, not a purpose such as deterring heresy). The test is not whether the banned practice is compulsory within the religion.
All that said, neutral, generally-applicable laws can turn out to be especially onerous for particular groups of people. This can happen for all sorts of reasons. One reason might be that a law has the practical effect of forbidding people from engaging in a religious practice of some kind.
On occasion, we might want to give exemptions from a law, and our reasons might take into account how important it is that this particular law obtains universal compliance. They might also take into account just how onerous the effect is on people who are especially affected. If we’re getting into this weighing exercise, it will, indeed, seem more important if the effect of the law is to ban something that is considered compulsory for, say, spiritual salvation than if it merely makes life less enjoyable and convenient. But even the latter can be given some weight, depending on the circumstances.
Note, though, that even if human sacrifice were considered compulsory by some group for spiritual salvation, we would not grant exemptions from the law relating to murder. The starting point is whether this is a neutral law of general application with a good secular purpose. If it is, it is not an attack on freedom of religion. It is only when we get to considering any exemptions from the law that we take into account just how much difficulty the law might create for certain groups, including religious groups.