About Me

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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Tuesday, May 29, 2012

Religious liberty and discrimination

Over at richarddawkins.net, Lawrence Krauss has a piece about religious liberty (or, as I prefer to say, freedom of religion) and discrimination. Krauss's thoughts are worth reading.

However, much of the confusion around such issues relates to confused idea of freedom of religion. Freedom of religion in itself does not give you a positive right to do whatever you want, irrespective of what the neutral, generally-applicable law says. It merely gives you freedom from religious persecutions and impositions by the government. As I say in a long comment:
Freedom of religion basically means that the state will not persecute you for your religion or impose a religion on you. Instead the state should simply make decisions to protect and promote the secular welfare of its citizens (i.e., their interests in this-worldly things).

It can get a little bit more complicated, but that's basically it. Sometimes a decision made on a secular basis will offend the religious or in some way constrain them, but they can't claim persecution if the state was simply acting in a religion-blind way, doing something that it would have done anyway, on secular grounds, even if the religion concerned did not exist.

Much confusion is caused when definitions of freedom of religion are used that do not start from this core meaning.

No one is being persecuted for their religion if the state, for secular reasons to do with its citizens' this-worldly welfare, makes a decision to recognise same-sex marriages in the same way as it recognises opposite-sex marriages. Nor is any religion being imposed on anyone if the state simply does this for reasons relating to the worldly interests of the people concerned. Thus, freedom of religion doesn't come into it.

However, if the state refuses to recognise same-sex marriage for a religious reason ... well, freedom of religion certainly does come into it. Public policy is then being used to impose a religious viewpoint.

At the risk of being accused of spamming, I do my best to sort all this out in my book FREEDOM OF RELIGION AND THE SECULAR STATE. In any event, the idea of freedom of religion (the state will not persecute you for your religion or impose an alien religion on you) is manipulated unconscionably in these debates. Properly understood, freedom of religion is a good thing, and it is compatible with other liberal freedoms such as freedom of speech (the state won't try to control what you say and how you express yourself). However, manipulation of the idea can give it a bad name.
Laws of general applicability can include anti-discrimination laws, which, among other things, protect the secular interests of people in education and employment - organisations such as schools, universities, business corporations, and individuals such as landlords are required not to discriminate in certain respects and on certain grounds. As private individuals we can, prima facie, discriminate as much as we want, however irrationally. But governments tailor anti-discrimination laws as exceptions to this where private power might otherwise be oppressive. Anti-discrimination law needs to be drafted carefully, but prima facie it is not contrary to freedom of religion if it is enacted for a secular purpose.

There is much more to say, much of it in Freedom of Religion and the Secular State, but as I say in my comment on Krauss's piece, we should stick with a pretty clear core idea of freedom of religion as freedom from state persecutions and impositions. If we don't stay anchored to that idea, we'll end up getting lost at sea.


Jean Kazez said...

Hi Russell, If I follow both you and the NYT, it seems to me you would like the editorial in yesterday's paper--


Russell Blackford said...

Thanks, Jean - I'll check it out.

Russell Blackford said...

Yes, it's a good editorial - I'll draw more attention to it.

Verbose Stoic said...

Well, I agree that recognizing same-sex marriage is almost certainly not infringing on freedom of religion, even though I strongly disagree with your comment that the state can interfere with religions if they do it blind.

The state of course is allowed to define marriage for its secular uses as it sees fit, and however it needs to do promote its secular aims. So that's fine. The only time you'd have a problem is if the state wanted to impose THAT definition on the religions themselves. So, if it insists that religions must perform marriage ceremonies for same-sex marriages, or that the term "marriage" must culturally and religiously include them, then that would be a violation and I'd say it would be a violation even if -- and possibly especially if -- it does it blind. You don't get to, say, destroy someone's property and then claim that since you weren't even thinking about them it's perfectly fine for you to do so, after all.

Anyway, neither of these things are, i think, the case, and so opposing same-sex marriage on the basis of freedom of religion seems to be a non-starter. This seems to be a case where the usually shaky argument of "If you don't want to be in a same-sex marriage, don't marry someone of the same sex" is actually a reasonable reply, as that's really all freedom of religion can guarantee you: the ability to act on your own religious beliefs (within reason).

drdave said...

Alonzo Fyfe has a very good Defense of Secularism that addresses this issue.