A Philosopher's Blog

Religious Liberty

Posted in Ethics, Philosophy, Politics by Michael LaBossiere on November 21, 2016

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The authors of the United States Constitution were aware of the dangers presented by state infringement on religious liberty. The First Amendment provides two key protections for citizens. The first is the prohibition against making “law respecting the establishment of religion.” This protects citizens from the tyrannical imposition of a state-backed religion. The second is that congress is forbidden from making any law that prohibits the free exercise of religion.

I support both prohibitions. While many believe it would be a great if their religion was the one being established and imposed via the coercive power of the state, they would not want someone else’s religion imposed upon them. For example, Americans who want to use Christianity as foundation for laws express horror at the prospect of Sharia law being imposed on them. As always, it is wise to consider the actions of the state in accord with the spirit of the Golden Rule: impose laws on others as you would have them impose laws on you. So, just as I would not want to have Sharia law imposed on me, I should not impose faith based law on others.

While I am not particularly active in my exercise of religion (although I am religious in my exercise), I also support the freedom to exercise religion. On the extreme side, imposition on religious liberties are often the starting point of efforts to oppress religious minorities. This can, and has, lead to attempts at extermination. As such, it is wise to make it difficult to get the ball of hate rolling. On the less extreme side, the free exercise of religion is part of the broader moral rights of liberty of conscience, freedom of expression and freedom of belief (which I also support). The American experience has shown that the acceptance of religious freedom, as imperfect as it may be, has helped maintain the stability of the United States. While we have many sects and religions, we do not have sectarian or religious violence at any significant level. While there are, of course, other factors that contribute to this, the freedom of religion has contributed significantly.

In recent years, there have been claims that religious liberty is under attack in the United States. As a holiday tradition, Fox News runs its yearly absurd stories about an alleged war on Christmas. While rampant, soulless consumerism has largely defeated Christmas, there is obviously no war against it. There are also claims that Christians are persecuted in the United States. To support this, people point to the legality of abortion, the legalization of same-sex marriage, and laws protecting LGBT people from discrimination. These are taken by some as attacks on religious liberty. In response, several states have endeavored to roll back these alleged intrusions on liberty, although this has resulted in backlash from the public in some cases.

To appeal to certain evangelical voters (who are not a monolithic bloc) Trump claimed that he would act in accord with their view of religious liberty. As they see it, Trump will enforce the second prohibition and protect citizens in their free exercise of the religion. However, critics can argue that this would violate the first prohibition by imposing religion on others via the law. Since I have argued these issues in other essays, I will not undertake this battle here. Rather, I will hold the supporters of religious liberty to their rhetoric about freedom. To be specific, let it be assumed that religious freedom is something they think should be protected by the state—even when doing so can impose harms on others. To illustrate the harms, consider the impact of not protecting LGBT people from discrimination based on faith as well as the impact of the anti-abortion efforts on women’s health and freedom of choice.

While Trump made a great rhetorical effort to win evangelical voters, he also engaged in sustained attacks on Muslims. He proposed a complete ban on allowing Muslims into the United States, he has called for a registry of Muslims, and has consistently used anti-Muslim rhetoric. While the ban and registry can be taken to violate the prohibition against interfering with the free exercise of religion, this can be countered. It could be argued that banning Muslims from the United States does not prevent them from freely exercising their religion in the United States—they would simply be excluded from coming here because of their religion. It could also be argued that a registry would also not be a violation of this prohibition. While some Muslims might elect to keep their faith private to avoid being put on that list, the registry itself would not forbid the free exercise of religion. Those willing to identify themselves to the government and have their information in a database conveniently available for hate-group hacking would be free to exercise their religion.

Not surprisingly, some Christians dedicated to their own religious liberty support the registry and ban. However, they should consider the matter not just in terms of their own perceived self-interest, but in terms of their professed support for religious liberty as a principle. They should consider reversing the situation: what would be their view of a country that banned Christians and had a registry of Christians? They would presumably be rather critical of such a country and would most likely consider those acts persecution. This reflection should help suggest what is wrong with the ban and registry.

The principle of religious liberty would seem to prohibit the registry and ban—they seem to be clear impositions on the freedom of religion, broadly construed. This can be countered by defining religious freedom more narrowly—limiting it to, for example, the freedom to worship within a religious edifice. This narrow interpretation would, however, preclude using the religious liberty argument in regards to such matters as abortion, contraception and LGBT rights.

Another possible counter is based on the fact that rights do have limits. One basis for limiting rights is the principle of harm: liberty can be restricted to protect others from harm. Using the stock example, the freedom of expression does not grant the right to yell “fire” in a crowded theater. In the case of the Muslim registry and ban, it can be argued that the religious liberty of Muslims can be limited to protect others from harm. This would presumably be developed in terms of terrorism. However, if possible harms to others is used to warrant the Muslim ban and registry, then the same argument can be used in response to the religious liberty arguments about abortion, contraception, and LGBT rights based on the harms they will impose on others. This then becomes a matter of weighing the harms imposed by restricting or allowing religious liberties. Regardless of the specific evaluation, this involves recognizing that the ban and registry violate religious liberty and that religious liberty can be constrained on the grounds of harms.


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11 Responses

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  1. ajmacdonaldjr said, on November 21, 2016 at 8:55 am

    Trump’s religion test for immigrants is standard practice in Israel http://mondoweiss.net/2015/12/trumps-religion-test/

  2. TJB said, on November 21, 2016 at 10:18 am

    Given that Islam mandates warfare against non-believers, it does not seem unreasonable to ask guests to our country if they plan to follow that particular mandate.

  3. nailheadtom said, on November 21, 2016 at 12:11 pm

    The genesis of religious freedom in North America was the Puritan settlement in the Northeast and by religious freedom they meant their own freedom, not that of others, particularly Catholics. Islam was not an issue then but certainly would have been had any Muslims disembarked in Boston harbor.

    We witnessed the extent of religious freedom in the country in Sunday closing laws which discriminated against those who wished to purchase alcoholic beverages or engage in other business on that holy day. Puritan sabbath enthusiasm has since been rendered obsolete by the religion’s even more devoted embrace of capitalism.

    • wtp said, on November 21, 2016 at 2:39 pm

      We witnessed the extent of religious freedom in the country in Sunday closing laws which discriminated against those who wished to purchase alcoholic beverages or engage in other business on that holy day.

      Notice no complaint from NHT when companies were forced to pay employees extra for work on Sundays.

    • Michael LaBossiere said, on November 21, 2016 at 3:24 pm

      While the Puritans did, as one of my profs liked to joke, come here for the freedom to be intolerant, religious liberty was not defined by them. One should look, rather, at the writings of Jefferson and others.

      • nailheadtom said, on November 22, 2016 at 10:13 am

        Enlightenment thinking made “democracy” into what is now the national religion in the US. Like all religions, the dogma of democracy is open to many interpretations but it is a given that the democratic republic is the humanist endgame of society, heresy in the matter not to be accepted.

        • wtp said, on November 22, 2016 at 11:51 am

          it is a given that the democratic republic is the humanist endgame of society, heresy in the matter not to be accepted.

          NHT, all you ever seem to do when you comment is bitch about stuff. Now a democratic republic apparently chafes your britches. What in God’s name do you stand for? Anything? It is quite easy to throw stones at society, at any given idea. It is quite another to build something substantial. Do you have a job? Do you have responsibilities of your own? Or is bitching about stuff what you get paid to do? What form of government or society or group cooperation do you approve of?

  4. rung2diotimasladder said, on November 21, 2016 at 1:23 pm

    Hello! Nice to stumble upon your blog.

    It seems the tension between freedom of religion and separation of church and state parallels the tension between freedom of speech and the restriction of speech that harms others. In the latter case, we have the example of yelling “fire” in a crowded space. Also, libel. It seems to me that “harming others” can’t be some vague possibility, but a clear threat, narrowly (although loosely) defined. There’s some gray area here, yet freedom of speech vs. constraint of speech seems just a bit more parsed and settled, with a tendency to preserve freedom of speech. I wonder how/if specific legal cases in other areas such as this could be used to delineate religious liberty?

  5. DH said, on November 21, 2016 at 7:25 pm

    When making their arguments, the left likes to leave out important details and present their side in a limited way. This is most notable in their charges against Trump and others who wish to take a hard line on immigration – they conveniently drop the word “illegal” from their description, and are just fine with painting a broad-brush picture of Trump et al as xenophobic anti-immigrant.

    In the case of Muslims, there is no outright ban on Muslim immigration proposed. What Trump has proposed is nearly identical to what Franklin Roosevelt did during WWII; placed a temporary hold on immigration and travel to the US by Germans, Italians and Japanese. Of course, not all Germans were Nazi sympathizers – not all Italians were followers of Mussolini, not all Japanese sided with Tojo – but the ban was put in place as a temporary measure in the name of national security. The innocent among them were eventually allowed in the country – but only after we (to quote Trump), “figured out what was going on and how to deal with it”.

    The proposed ban on Muslims is not focused on the religion, but the politics of Islamist extremism. It is a political, not anti-religion stance, and to paint it as anything else is to miss the point. Of course, painting it in this way is great for those who would riot in the streets with anti-Trump placards, but it does nothing to find a solution to those members of a political group masquerading as a religion, who come from many countries, that all have a single purpose – to do us harm and to kill those they perceive as “Infidels”.

    It is unfortunate, but rather convenient, that the extreme political stance of the Islamist fundamentalists is so intertwined with the Koran and the religion of Islam. It challenges the very definition of “religion” as we define it in our Constitution, and forces us to question our beliefs in the freedoms we have. I think that is just what they want.

    The problem with Sharia law is that many of those who wish to follow it in this country believe that their law should supersede the Constitution; that Muslims who commit crimes should have their own courts and system of crime and punishment. This of course would include being stoned for adultery or having a limb amputated for theft. Flogging and caning are part of the system of punishment, as is child marriage.


    Can we live with this? Is there any other country in the world that allows religious beliefs to supersede their national laws? Can we live with the intolerance of homosexuality or the abuse of women that Sharia espouses, as long as it’s only “them”? Should we then relax the ban on polygamy, and allow Mormon men to have as many wives as they wish? Should we insist that the federal government fund female circumcision, and pay for the running of Kosher butcher shops?

    I think that a large number of “Right to Life” people are not in favor of the repeal of Roe v Wade, but balk at the prospect of government funding for abortion, and government funding of institutions like Planned Parenthood as long as they provide abortion services. When the government spends taxpayer money on a procedure that half the country is opposed to on the basis of religious beliefs, that is a clear example of the government weighing in on a religious issue and taking sides. In contrast, by removing the funding but allowing the law to stand, they are merely saying, “This is not a federal issue, and it is not proper for the federal government to be involved”.

    The left is very anxious to call this a “ban”, and decry what they perceive as “forced closures” – but there is nothing stopping private funding. The US government funds Planned Parenthood with about $500 million per year. For a little perspective, the Gates foundation has, to date, committed more than $3 billion for HIV research in sub saharan Africa and more than $1.6 billion to fight AIDS, Tuburculosis and Malaria. In July, Warren Buffet donated $2.86 billion to a handful of charities; beating the $2.84 billion he donated in 2015, which was more than the $2.8 billion in 2014.


    I believe that an appeal by Planned Parenthood upon the removal of government support would yield donations far in excess of what taxpayers now fund, and the government would be much more in line with the first amendment.

    My point is that if the government were to really take a neutral stance on abortion they would neither fund it nor criminalize it. The text of Roe v Wade strikes a very fair compromise between the unrestricted access to abortion in the first trimester, and the state interest in the life of the unborn beyond that.

    Imagine, for the sake of analogy, that your religion supported unrestricted assisted suicide for a wide variety of reasons. To practitioners of that religion, there is nothing morally or ethically abhorrent to that practice, but the rest of us might not want that practice to define us as a society. Many claims might be made on either side of the argument – but even if the government were to allow such a practice within the context of US law, it would be a much greater reach for them to fund it with taxpayer money.

    “There are also claims that Christians are persecuted in the United States. ”

    Yes, there are. Dan Cathy, the president of Chick fil A, expressed his Christian belief that he should not have to provide contraception benefits for women. As a result of his declaration, protests and even riots broke out, and he was made to be a pariah on social and other media. While quite distasteful, this is in keeping with our current laws protecting freedom of expression – he was free to make his statement, the public is free to react. However, when the Mayors of Chicago and Boston move to block the construction of Chick fil A chains in their cities as a result of Cathy’s expression of religious belief, I would call that government persecution. What do you call it?


    It is the same for Melissa Klein, the owner of Sweet Cakes By Melissa, who did not want to support a lesbian wedding with a cake. While more reasonable customers might have understood that there was a moral divergence between the two parties and sought to purchase a cake from someone who did support their lifestyle, this couple decided to make a point and take it to court. Melissa Klein is now out of business, and was made to pay $135,000 in fines.


  6. wtp said, on November 22, 2016 at 11:46 am

    He proposed a complete ban on allowing Muslims into the United States, he has called for a registry of Muslims, and has consistently used anti-Muslim rhetoric.

    Mike, you are misrepresenting, intentionally or not, what Donald Trump actually was speaking about. Transcript below. He was speking in the context of immigration and specifically about stopping illegal immigration. He was speaking off the cuff, multi-tasking while shaking hands with supporters as he was exiting an event and very likely trying to keep to a schedule for his next appearance/meeting. Even you are saying he “He proposed a complete ban on allowing Muslims into the United States”, yet here he is, in the very link you supply, speaking of allowing Muslims in but tracking who they are and why the are here. This is done in damn near every country in the world, of foreigners of any type. When I worked in Japan for a month years ago, I was advised to keep my passport with me at all times to identify who I was and why my gaijin ass was bopping around Tokyo and elsewhere. I believe such is the advice given when visiting other countries as well but as a white (or black or Korean or Chinese) American I would attract more attention in Japan and thus more likely to be asked to produce my “papers”.

    Note, I am not endorsing Trump’s position, I personally don’t think much of this is workable based on one’s religion. It is workable based on country of origin and a reasonably effective background check, both of which are doable on a more restrictive immigration policy than what the standard (for lack of a better word) is today or would have been expected under an HRC administration. No system is perfect and one cannot let perfection be the enemy of the good, but what Trump is speaking of here is not exactly what would be implemented. He is not a dictator and he does take input from advisors. To misrepresent as you do above is shameful. But of course, you have no need for shame. You teach ethics.

    MSNBC Reporter: Should there be a database or system that tracks Muslims in this country?

    Donald Trump: There should be a lot of systems. Beyond databases. I mean, we should have a lot of systems. And today you can do it. But right now we have to have a border, we have to have strength, we have to have a wall, and we cannot let what’s happening in this country happen any longer.
    MSNBC Reporter: But that’s something your White House would want to implement?
    Trump: Oh, I would certainly implement that. Absolutely.
    MSNBC Reporter: What do you think the effect of that – how would that work?
    Trump: It would stop people from coming in illegally. We have to stop people from coming in to our country illegally.
    MSNBC Reporter: But specifically, how do you actually get them registered into a database?
    Trump: It would be just good management. What you have to do is good management procedures. And we can do that. (to someone else) That’s nice.
    MSNBC Reporter: Do you go to mosques and sign people up?
    Trump: Different places. You sign ‘em up at different, but it’s all about management. Our country has no management.
    MSNBC Reporter: Would they have to legally be in this database, would they be–
    Trump: They have to – they have to be. Let me just tell you: People can come to the country, but they have to come legally. Thank you very much.

    Read more at: http://www.nationalreview.com/corner/427418/watch-trumps-exchange-muslims-registering-government-jim-geraghty

    • TJB said, on November 22, 2016 at 12:05 pm

      They don’t even try to understand what Trump is saying. They will run with some out of context sound bite to generate fear and hysteria.

      I think Trump is smart to go directly to the voters and bypass the press.

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