This essay develops a normative argument against Michael Perry’s approach to religious freedom. According to Perry, the right to religious freedom should be expanded into a claim upon liberal democracies to religious and moral freedom. In other words, one should be free to practice one’s morality, whether or not it is grounded in the transcendent. This paper argues instead that religious freedom cannot be protected by the same legal paradigm as moral freedom because religion and morality affect legal systems in different ways. Religious freedom and moral freedom are different ontological realities and therefore require different treatments under law. Religion is detachable from political communities; morality is not: political communities are by definition moral communities. Perry’s expansion promotes moral permissiveness and slows and hinders the right development of religious and moral values in political societies. His approach ultimately identifies moral freedom with free morality and coercively imposes a particular model of morality: namely, a liberal one. In place of Perry’s expansion, this paper proposes a new expansion of religious liberty along different lines: a more specific legal distinction between the “right to religion,” on the one hand, and moral freedom of conscience, on the other.
Michael J. Perry, a distinguished American scholar of law, religion, and morality, has advocated broadening the paradigm of the right to religious freedom into what he calls the right to “religious and moral freedom.”1 That is, he defends extending the right to religious freedom to embrace moral freedom and making this expanded right mandatory for liberal democracies. According to Perry, this extension of the right is the best way to protect rigorously the freedom to live one’s life in harmony with one’s deepest and ultimate convictions and commitments, whether or not one’s morality is religiously based.2 This doctrinal elaboration of a new right to religious and moral freedom is part of his ambitious project of developing a “global political morality”3 of liberal democracies based on human rights.4 Although Perry focuses on the United States,5 his approach aspires to universal validity,6 and he grounds his arguments partly in international human rights instruments and comparative constitutional case law.7
In this article, I take for granted the widely accepted point,8 which Perry also defends,9 that the traditional religious freedom paradigm should be expanded to cover believers and non-believers alike.10 I do not, however, accept Perry’s argument for expanding the right of religious freedom into a right to religious and moral freedom, for religion and morality, though related, affect the law in very different ways. Religion is detachable from politics, but politics is not detachable from morality. Political communities are by definition moral communities, but by definition they are not religious communities.11 The same legal right should not be understood to protect both a constitutive element of political communities such as morality, and an important but separable element like religion. One can have the right to live according to one’s religion in a non-religious community such as the political community, but one cannot have the same right to live one’s own morality in a community that is in part morally defined, as is the political community. I thus challenge the idea that there is a right to religious and moral freedom as such, and suggest instead the necessity of a more precise legal distinction between the “right to religion” and the “right to freedom of conscience.”
This article challenges the starting points—the “first principles” or “primary truths”12—as well as the tacit assumptions13 of Perry’s argument, on these grounds:
Protecting non-believers as well as believers is best served not by unifying but rather by distinguishing religious from moral freedom as sharply as possible.
Politics is independent of religion but not of morality. So religious freedom and moral freedom cannot receive the same treatment as a single human right.
Religious freedom does not entail a general moral freedom (understood as moral independence) but only freedom of conscience (an expression of moral autonomy).
Asserting a single right to religious and moral freedom erroneously equates moral equality with religious equality, to the detriment of public morality.
The fact that all human beings are morally equal in dignity does not mean either that legal systems should treat all moralities equally or that they may not regulate morality except in pursuit of human rights or “legitimate” interests in Perry’s particular sense.
Religious beliefs can licitly play a more extensive role in political communities than Perry allows.
Religious and moral values can be instruments of unity in the political community since they can constitute a part of the communitarian identity. In order to be generally recognized by the political community, religious values should be distilled into moral or political values.
Three clarifications before continuing: First, this paper uses the term “legal system” and not “law” in order to differentiate a human creation (the legal system) from an idea (law) that embraces religious as well as legal elements. Thus, it is possible to talk about “divine law” or the “Law of God” but not about a “divine legal system.”14 Second, since Perry’s new paradigm has been developed over several years of prolific output,15 it has sometimes been difficult to determine precisely his final opinion on a given issue. In cases of doubt or conflict, I have assumed that the later publication reflects Perry’s current or more settled view.16 Third, this essay does not focus on Perry’s interpretation of the International Bill of Rights in support of his argument17 or on the concrete application of Perry’s paradigm to the controversial cases of abortion and same-sex unions.18 Though important in their own right, these points do not touch the essence of Perry’s argument, on the supposed requirement for liberal democracies to expand religious freedom into a unitary right of religious and moral freedom.
2. Perry’s approach to the right to religious and moral freedom
To orient readers, I summarize in broad strokes Perry’s approach to religious and moral freedom. Human rights are based on the equal, inviolable, and inherent dignity of all human beings.19 According to Perry, this proposition is “axiomatic”20 in a liberal democracy dedicated to the protection of human rights. To “act towards one another in a spirit of brotherhood” is the “fundamental imperative” 21 articulated in the Universal Declaration of Human Rights.22 This is also the “normative ground of human rights”23 in the sense that all human rights are specifications of what the imperative forbids or demands in particular cases.24 A right is a human right if the “fundamental rationale” for protecting the right is that conduct that violates the right also violates the imperative of a spirit of brotherhood.25
All human rights are moral rights, but, as a matter of fact, not all human rights are legal rights since some human rights are not enforceable in many countries.26 A democracy is committed to a human right if its legal system recognizes and protects this human right as a fundamental legal right. Liberal democracy’s commitment to the equal, inherent, and inviolable dignity of the person, Perry continues, also entails its commitment to the right to moral equality, which is the right of each human being to be treated by governments and lawmakers as morally equal to every other human being,27 i.e. according to his or her equal dignity28 and “in a spirit of brotherhood.”29 All fundamental legal rights must preserve moral equality inasmuch as they must preserve human dignity. Religious freedom is a human right to which a liberal democracy is committed; it is a fundamental legal right.30 In Perry’s view, religious freedom is the freedom to live one’s life in harmony with one’s ultimate convictions and commitments, whether they are grounded in transcendent or non-transcendent considerations.31
Liberal democracies are also committed to the right to moral freedom, Perry continues.32 Moral freedom is the freedom to live one’s life in harmony with one’s moral convictions and commitments, whether or not they are transcendent.33 Since, according to Perry, “there is no way to address fundamental moral questions without also addressing, if only implicitly, religious questions,”34 the right to religious freedom must be expanded into a right of religious and moral freedom. Moral freedom and religious freedom are more than analogous or complementary rights.35 They constitute a single fundamental right, which protects “the freedom to live one’s life in accord with one’s religious and/or moral convictions and commitments.”36 So, it is “misleading” to describe the human right of religious and moral freedom simply as the right to religious freedom.37 And doing so makes it impossible to protect moral equality between believers and non-believers in a liberal democracy. In other words, if religion in the broadest legal sense refers to ultimate questions, concerns, and convictions, and if fundamental moral issues have to do with the same, then moral freedom and religious freedom must be protected under the same right: the right to religious and moral freedom. Recently, Perry identifies this right with the right to freedom of conscience.38 This expansion constitutes “one of the most important ways for a society to manage moral and religious diversity.”39
According to Perry, in a liberal democracy, the moral contents and aspirations of the law should be minimal,40 for the sake of the moral freedom and moral equality of each of its members. It is not the business of democratic government to protect either moral truth or society’s moral health or moral unity.41 Political governments should not be trusted as arbiters of religious or other ultimate questions.42 They should arbitrate moral disagreements only as between individuals or other private entities.43 In particular, Perry thinks, governments may limit the practice of the right to religious or moral freedom only when three conditions are satisfied: the legitimacy condition, the least burdensome alternative condition, and the proportionality condition.44
The legitimacy condition is critical to Perry’s proposal. Only a legitimate objective or interest can justify a government’s imposition of some restriction or policy that curtails religious or moral freedom.45 Illegitimate interests include trying to protect the truth about religious or other ultimate questions, or the political community’s unity or strength on such issues.46 The other two conditions operate within the framework established by the legitimacy condition.47 Public morals can undeniably satisfy the legitimacy condition,48 but only when the restriction or other policy in question is not based on sectarian religious or moral belief: “Protecting sectarian morals is not a legitimate government objective under the right to religious and moral freedom.”49
The right to religious and moral freedom ought to be considered a “fundamental political norm”50 of the global morality of human rights, Perry says. He tries to find support for his argument in favor of a right to religious and moral freedom in article 18 of the International Covenant on Civil and Political Rights,51 which he considers “canonical.”52 Although the article refers to a “right to freedom of thought, conscience and religion,” Perry argues, among other things, that the article’s mention of belief and conscience, as well as the paragraph’s reference to “moral education,” provides sufficient support for his expanded interpretation.53
Perry applies his paradigm to some of the most controversial issues, especially in the United States: abortion and same sex marriage.54 He concludes that “an extreme ban on abortion . . . violates both the right to moral equality and the right to religious and moral freedom,”55 while the exclusion of same-sex couples from civil marriage violates the right to moral and religious freedom, but not the right to moral equality.56
3. The expansion of the paradigm of the right to religious freedom
To understand the logic of Perry’s extension to moral freedom, we can begin by considering other expansions in the concept of religious freedom. The original paradigm of religious freedom, established first by Protestantism and then by Enlightenment liberalism, was designed to protect “mutual toleration of Christians in their different profession of religion.”57 It was a transcendent approach, since it regarded the exist ence of God, in the Abrahamic sense of the term, as rationally provable and socially accepted.58 According to this original approach, religious freedom was the political freedom required to accomplish the duty of rendering to God what human beings as creatures owed him according to justice or, in the words of James Madison, the father of religious freedom in the United States, “the duty which we owe our Creator and the manner of discharging it.”59 So the end of religious communities was understood to be “the public worship of God, and by means thereof the acquisition of eternal life.”60 The idea of God was central to the understanding of religious freedom as its own right deserving of special treatment, and different from the rights to freedom of speech, press, association, and more. As America’s early religious freedom advocate Roger Williams put it, “God requires not uniformity of religion to be enacted and enforced in any civil state.”61 Freedom of conscience was the legal tool to protect the free exercise of religion. The ultimate end of freedom of conscience was not to protect conscience against potential political immorality,62 but to protect the free election of one’s own religious path.
This original paradigm of religious freedom has been expanded over the past two centuries in two basic directions: first, to protect non-transcendent religions and beliefs; and second, to protect so-called “freedom from religion.” The advance of globalization highlighted the diversity of world religions and beliefs (Abrahamic religions, Eastern religions, religious eclecticism, private beliefs, aboriginal and indigenous spiritualities, and so on), and the corresponding need to expand the religious paradigm to extend coverage to all kinds of religious and nonreligious beliefs and creeds. This expansion was firmly adopted in the Universal Declaration of Human Rights (art. 18) and in the Covenant on Civil and Political Rights (art. 18), and it was recognized by the most important international documents, notably the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.63 There was no question that in a world in which believing in God was no longer axiomatic, historical monotheism could not be the key to the right to religious freedom. The extension of the protection of the paradigm of religious freedom to non-transcendent religions and beliefs was, therefore, an eminently understandable position on the part of liberal democracies. After this extension, the ultimate foundation of the right to religious freedom was no longer the existence of God and the free exercise to worship, but the religious capacity of the human being as a dimension of his or her inherent dignity.
This positive and realistic shift, aimed chiefly at avoiding discrimination in religious matters in the era of equality, did not justify the exclusion or marginalization of the idea of God as understood by Deism, by the Abrahamic religions (Judaism, Christianity, and Islam), and by other forms of transcendent monotheism (for instance, Zoroastrianism, Sikhism, or the Baha’i faith). Nor did it justify the reduction of religion to mere personal conviction and subjective belief. The idea of a transcendent God remained at the heart of the idea of religion. This first expansion of the right simply meant that transcendence, and specifically believing in God, was no longer a necessary condition of protection under the right of religious freedom, but just a sufficient one. This was the change and the challenge of the new paradigm of religious freedom.
As a result of an intense process of Western secularization over the last several decades, the incorporation of nonbelievers (atheists, agnostics, and so on) under the protection of the right of religious freedom implied a second, long-range expansion of the paradigm of religious freedom, this time to protect people against religion. The peculiar “freedom from religion” discussion introduced by the American First Amendment’s Establishment Clause anticipated the broader twentieth century discussion of “freedom from religion.”64 The aim of the extension was to establish “bonds of solidarity,”65 a sort of “overlapping consensus”66 of all kinds of worldviews and convictions. According to this second expansion, freedom of religion must be the inclusive patrimony of believers and nonbelievers. It should therefore fully protect from religion those who choose to have nothing to do with God or religion.
These two extensions of the paradigm of religious freedom have also taken place in other basic rights such as the right to marriage and the right to work. Although these other rights are of a different ontological quality, they are supported by the same legal framework: the paradigm of a right to protect a good for society that is freely chosen by the individual. So they can serve as a useful analogy. The right to marriage should protect both people who decide to marry and people who decide not to marry. The starting point of the right to marriage is the personal autonomy to decide whether to marry. The right not to marry is not strictly a derivation of the right to marry, but simply a derivation of moral autonomy. However, under the umbrella of the right to marriage a legal system can protect both married and single people; i.e., the right to marriage can also protect the “freedom from marriage.” Without reference to a social union or legal contract there is no marriage, and a right to marriage cannot have special treatment. But as a matter of fact a single person without any kind of legal contract is protected by the right to marriage. Moreover, according to the law, just by extending the paradigm, a given partnership can be assimilated to legal marriage. So on the one hand, if marriage is relevant to the legal system, it is because of the legal relevance of marital union, not of singlehood or partnership. Yet without moral autonomy with respect to whether to marry, there is no right to marriage.
Something similar happens with the right to work. The right to work can protect both workers and people who decide not to work (“freedom from work”). The right not to work is not strictly a derivation of the right to work, but just a matter of personal moral autonomy. However, under the umbrella of the right to work, a legal system can protect both workers and non-workers. Without a reference to some labor issues (salary, labor contract, vacations), a right to work cannot have special treatment. However, as a matter of fact, a non-worker without any kind of legal contract could be protected by the right to work as an extension of the paradigm. A legal system can assimilate to workers people who are actually working for free, without any labor contract.
Freedom from marriage and freedom from work, although matters of personal moral autonomy, can be understood because there is a right to marriage and a right to work—because, that is, human beings are potential workers and potential spouses. To regard marriage and work as goods deserving of the legal protections afforded by human rights is not discriminatory against single people and the unemployed because everybody has the right to marry and to work. However, these are different statuses: one cannot be married and unmarried, or a worker and a non-worker, at the same time. Thus, the positive exercise of the right (marriage or work) requires more attention on the part of legal systems than the negative exercise of the right (to be single or not a worker), but in no case does this treatment suppose a discrimination against any person who decides not to work or to remain single. It is just a matter of legal implications (in the case of marriage: the possibility of having children within the marriage, cohabitation, and so on; in the case of a worker: social security, vacation, salary, and so on).
The same framework, I submit, should be applied to the right to religious freedom (freedom of and from religion). Originally, the right to religious freedom entailed only the freedom of religion, with the concept of religion limited to Abrahamic religions. In a first expansion, the right to religious freedom came to embrace the freedom of both transcendent and non-transcendent religions and beliefs. In a second expansion, it came to include freedom from religion as well. Freedom from religion is not strictly a derivation of the right to religious freedom, however, but just a matter of personal moral autonomy. Even so, under the umbrella of the right to religious freedom, a legal system can protect both believers and non-believers. Without a reference to religion there is no religious freedom. Nevertheless, as a matter of fact non-believers are also protected under the right of religious freedom. The decision not to have anything to do with religion is a moral decision about religious issues, not a religious decision, just as the decision not to have anything to do with marriage is a moral decision but not a marital decision. It is a matter of personal moral autonomy. It is ultimately a matter of freedom of conscience. That is why without freedom of conscience there is no religious freedom.
In this context, Perry’s expansion of religious freedom into religious and moral freedom is understandable: If the right to religious freedom has been expanded in order to protect all kinds of beliefs and ultimate convictions, the right should protect not just the practice of religion, but the practice of one’s morality, whether or not based on religious convictions or standards. In my opinion, however, this extension is problematic. The right to religious freedom does not entail the right to practice one’s religious or non-religious morality because religion and morality are ontologically different. Politics, like legality, cannot be separated from morality altogether. However, religion can and should be separated from politics. Thus, religion and morality require different legal standards, different rules and different forms of legal protection. Therefore, they cannot be treated as the same right, but as two different freedoms: freedom of conscience and freedom of religion.
4. Religion and morality as different ideas
Religion and morality are closely related. But they are different ideas, different realities, and they affect political communities and legal systems in different ways. Religion is not morality, and religious freedom is not moral freedom. Religion tries to find a response to the question about transcendence and thus involves ultimate beliefs and convictions. Morality tries to give a response to questions about the good (right) or bad (wrong) intentions, decisions and actions of human beings as individuals and members of communities. Although both religion and morality are intrinsically related and mutually supporting, especially in the Abrahamic religions, they do not have definitional connections, since the knowledge of moral truths does not necessarily connect with knowledge of religious truths.67 So, it is possible to talk about religion without morality and morality without religion: “When religions are compared, this kind of overlap in religion and morality is seen to be more the exception than the rule,” affirms Niklas Luhmann.68 And Ronald Dworkin’s book Justice for Hedgehogs is just the most recent important attempt to support morality without religion.69
A devout Sikh boy who decides not to wear his dagger (kirpan) in school because it could be dangerous for classmates is making a moral decision on the basis of a religious precept to which he is committed.70 A Jewish person who decides not to attend military service in order not to bear arms is making a decision based on moral grounds but not on religious grounds, because Judaism does not ban the bearing of arms. A Christian who skips church on Sunday to take care of his or her grand father is contravening a religious commitment out of a moral concern for solidarity. The decision can be justified by the church (Christian charity), but it is chiefly moral, not religious. A Christian can decide to be vegetarian for moral reasons (protection of animals), but also for religious reasons (to offer this sacrifice to God in atonement for the sins of humankind). A Muslim can avoid alcohol for religious reasons but also just for moral or prudential reasons: say, to comply with medical advice. An atheist girl who decides to have a baby in difficult circumstances rather than have an abortion is making a moral decision that has nothing to do with religion. We can multiply examples in which we can differentiate morality and religion, and not just in some abstract or academic sense.
All communities are moral communities by nature since they have to make moral decisions, i.e., decisions about what is good (right) or bad (wrong) for the community. As a community, the political community is moral, as is the religious community. Behind health policies, immigration strategies, capital market regulations, environmental statutes, educational standards, and so on, there are always moral decisions. Even the political decision of a community not to make a moral decision about individual behaviors and practices if they do not affect a political interest is as such a moral decision: a collective moral decision to base the community’s public moral standards on moral independence—that is, on a degree of permissiveness.
Morality is a constitutive element of the political community, and ultimately of the legal system, but not of religion. The political community cannot help but make many moral decisions. But moral decisions are made in other communities, too: in a school, corporation, neighborhood, family, as well as in a church, synagogue, or mosque. In short, it is not only that the political community makes moral decisions; rather, on matters within its competence, it cannot help but make moral decisions. Of course, for the most part, it cannot interfere in the peaceable moral decisions made in other non-state associations, but even there it can set minimal standards; if, say, a religious community or a private association decides that child sacrifice is a good thing, the political community will step in.
Morality is part of the “home” of the political community; religion, however, is just a “neighbor”: it is separate but inhabits the same area. As to moral community, moral issues affect legal systems of political communities more strongly than religious issues. The decision of a political community to be neutral on some moral issues is a moral decision, not just a political one. That is why no political community is morally neutral. Moreover, political decisions about being or not being neutral about religion are not religious decisions, but they are moral decisions. They are decisions about how to achieve the common good of the community. Behind the constitution and structure of each legal system, there are critical moral decisions. Even the decision strongly to separate law and morality as two different entities without connection, as analytical legal positivism demands, is not only a legal philosophical decision, but a moral decision: “the morality that makes law possible,” to cite Lon L. Fuller’s famous expression.71
Political communities cannot escape from morality just as they cannot escape from legality. Liberal political communities try to separate justice from the good as much as possible. But this concrete political decision is also a moral decision: the moral decision to consider justice amoral or to give priority to the right over the good. I am not arguing that all political decisions are moral, just those that have to do with the achievement of the good. Decisions about the colors of a country’s flag or the convenience of having one or two parliamentary chambers are political but not moral. However, all political communities have to make ineluctably moral decisions in order to survive as political communities.
Political communities, at least in modern liberal democracies, are not religious communities. Political communities can and must avoid religious decisions. Religious decisions should be made just by private individuals, informed by their own consciences, and sometimes by the communities of voluntary membership, like churches, synagogues, or mosques. Religious decisions cannot be made by communities of compulsory membership, such as the political community. The decision of a political community to protect the right of religious freedom—of individuals and the voluntary religious communities that individuals choose to join—is a political (and moral) decision by the state, but not a religious decision, although it has religious consequences. Political communities can protect the practice of every religion because they are not themselves religious communities. They can limit or interfere in religion only in so far as religion harms the common good, say, by promoting violations of life and limb.
Religious communities, too, make moral decisions; they, too, are moral communities, offering moral directives that sometimes converge and sometimes are in tension with those of the state. Both political communities and religious communities have variations on the moral laws not to kill, steal, or bear false witness. They have a shared morality, albeit different means of enforcing it (criminal law v. spiritual discipline). But they sometimes have divergent moral answers to the same question. The liberal state says you may have an abortion or divorce; the Catholic Church says you may not. But it is not just the morality of the religious community, but also that of private conscience that is separate from the political morality and jurisdiction of the state.
Morality is on both sides of the wall dividing politics and religion. The difference between political morality and religious morality is that political morality should be reasonable, i.e. it should be based on a moral rationale. Otherwise, it cannot be applied according to the standards, rules and procedures of legal systems (constitutional law, criminal law, tax law, property law, and so on). Religious morality, however, can be based on a moral rationale, but also on what I shall call a moral “supra-rationale” (not against but beyond reason) or even an irrational moral claim. The religious prohibition of slavery is based on a moral rationale, not a moral supra-rationale. So, political and religious communities can concur in banning slavery on the ground of its immorality. The religious prohibitions of abortion and euthanasia, too, are based on a moral rationale. That does not mean that this moral rationale cannot also be illuminated by a moral supra-rationale (e.g., the idea that human beings are created in the image and likeness of God). What it does mean is that it is possible to understand the religious moral rationale of the prohibition without professing this religion or making an act of faith. Nobody needs to be a Christian to reject abortion or euthanasia. As a matter of fact, there are many atheists who reject abortion and euthanasia. On the other hand, the traditional Jewish female obligations to light candles (nerot), to separate a portion of dough (challah), and to be immersed in a ritual bath or mikvah after the end of the menstrual period (niddah) are religious moral obligations based on a moral supra-rationale. These commitments are not against reason but just beyond reason. Traditional male circumcision is also based on a moral supra-rationale (the expression of the Covenant with God), not in a moral rationale. The obligations of the Ten Commandments, however, are chiefly based on religious moral rationales, though they could be also considered a mix of rational and supra-rational morality, as is more clearly true of the Catholic prohibition of divorce, for instance.
Political morality should be based exclusively on moral rationales. Its justification cannot depend on religious propositions.72 So a political community should never impose a religious moral supra-rationale. Such an imposition would be against religious freedom, and beyond the power or jurisdiction of the state. The political imposition of fasting during Lent is against religious freedom, as is the political imposition of wearing a kippa or a veil, or the imposition of male circumcision. Fasting during Lent, wearing a kippa or a veil or practicing the circumcision of the male child is not against reason (to obey a rule of God is not against reason), nor is it based on a moral rationale. The political prohibition of a religious moral supra-rationale is also against religious freedom unless there is a legitimate political moral rationale for doing it. The prohibition of wearing full-face Muslim veils (burqa and niqab) would be an example of prohibition of a religious moral supra-rationale by a political community based on a political moral rationale: the preservation of public order and security. However, the legal prohibition of headscarves (covering the hair) would be, at least in my opinion, an example of the prohibition of a religious moral supra-rationale without enough legal justification, i.e. without a political moral rationale, and therefore, in violation of religious liberty.
Political communities could accept religious moral rationales as elements of their legal system since religious moral rationales can also be political moral rationales. That explains why a country can licitly ban abortion or same-sex marriage based on a political legal rationale even if that rationale coincides with a religious legal rationale. Such political decisions are not against religious freedom. They just reflect the fact that, say, marriage is both a religious and a political institution. That a religious community bans drinking alcohol does not mean that this religious moral rationale cannot be converted into a political moral rationale (to avoid traffic accidents) because rational religious morality can coincide with political morality in accordance with the religious freedom paradigm. The prohibition of public religious nudity (e.g., that of the naked Quakers); the legal prohibition of polygamy (a practice accepted, for instance, in Islam, as well as in some fundamentalist North American sects); or the prohibition of the old Hindu custom (Sati) of a Hindu widow’s self-immolating on her husband’s funeral pyre should be examples of political decisions based on moral rationales against the supra-rational or even irrational moral claims of certain religions.
In sum, legal systems should act according to a moral rationale. But they should protect under the right to religious freedom practices in accordance with religious moral claims that go beyond or even contradict reason, within the limit of public order and morality. A political community is free to give effect to a moral principle even if it coincides with a religious moral principle (e.g., prohibition of polygamy.) The fact that religious and political moral arguments converge does not make them an illicit basis for political action. This convergence is not against religious freedom. It is just a consequence of the fact that both religious and political communities are moral and that human actions can combine both political and religious motives.
The intrinsic limit of morality is reasonableness. In a political democratic community, reasonableness should be understood and applied only according to the consent of citizens. In the global human community, the minimum enforced morality could be the “morality of human rights.” The reason is that it will be very difficult to achieve a more extensive consensus about public morality. However, the lowest common moral denominator in a lower political community will be the morality to which the people of that community reasonably consent. Public morality is just a concrete specification of private morality since moral principles engage two spheres of morality, the private and the public.73 So the smaller and more uniform the political community is, the stronger its public morality can be. Diversity is found not just in individuals but in communities. With respect to diversity, a world with thousands of different political communities with very different political, religious and moral values is much better than thousands of political communities that conform to Perry’s paradigm.
Moral rationale and political consent within a constitutional framework that protects minorities, should define the public morality of democratic societies. No more, and no less. The consent of the citizens is supported by common political values, deriving many times from secular and religious values, cultural and historical experiences. The morality of human rights could be the minimum rational morality imposed by consent in the global human community, but there is no moral justification for restricting smaller political communities to the same minimum morality. The possibility of diversification does not entail an obligation to minimize public morality in a political community. If a nudist community decided to move to downtown Atlanta that would not mean that nudism should be permitted to accommodate the new community based on diversity. Diversity is a fact, and it can be a value worthy of protection when it leads to the good of the community.
5. Moral independence versus moral autonomy
Perhaps the most radical difference between Perry’s approach to religious freedom and the approach this essay defends arises with respect to the concept of moral freedom,74 which is the key to understanding Perry’s arguments. Religious freedom should be supported not by moral freedom in Perry’s sense (of moral independence), but by moral freedom of conscience understood as moral autonomy, a substantially different concept. Freedom of conscience is the most genuine expression of moral autonomy. Perry’s moral freedom, however, is the political consequence of applying the ideal of moral independence.
Moral independence is of its essence individual, not communitarian. It is a right against political government. It is considered a value in itself. Moral independence means an absolute personal sovereignty in ultimate questions such that a person should never accept any judgment in place of his or her own. Moral independence is based on the idea that everything that does not come from the subject is an external imposition. It is a sort of canonization of subjectivity, which calls for the practice of one’s own morality. According to moral independence, government must not rely on any justification that directly or indirectly presupposes any moral conviction about what is better or worse for a good life. Thus moral independence may be limited only by legitimate interests or objectives of the political community.75 Moral independence leads to free morality, and according to Perry’s approach, it means no restriction beyond the morality of human rights unless there is a legitimate governmental interest or objective for the restriction.76 Moral freedom in the sense of moral independence is based on the idea that if all human beings are morally equal, as they indeed are, all moralities should receive the same recognition by the legal system except to protect “public morals” as a “legitimate government objective.”77
Moral freedom understood as moral autonomy instead emphasizes the indispensable relationship between human freedom and moral order in all dimensions of the human person: individual, social and transcendent. According to moral autonomy, it is possible to harmonize legality, morality, religion, and freedom. For moral autonomy, the essence (and the end) of moral freedom is the pursuit of the good, in accordance with which people can shape their own choices. As Joseph Raz rightly emphasizes: “Autonomy is valuable only if exercised in pursuit of the good.”78 From this point of view, moral autonomy is analogous to freedom of scientific research. The purpose of freedom of research is the research as such, not autonomy or self-determination, although researchers need autonomy in their fields of research. Freedom of research serves science and not the freedom of the scientist. Freedom of research is valuable only as a means to high-quality research. For the moral independence approach, however, moral freedom will be closer to freedom of thought (if it is not a species of it), in which the essence is the freedom, the independence, regardless of the quality of the resultant thought. Moral autonomy supports moral freedom of conscience but not moral freedom in the sense of free morality.
Freedom and morality constitute a whole. The best way to practice freedom is to follow objective morality without any coercion. No conflict exists between objective morality and human freedom. Objective morality does not undermine human freedom; rather, it protects the very essence of freedom, illuminating it with the light of moral truth. Thus there is no justification for reducing moral truth to the morality of human rights; objective morality should not be politically restricted to human rights. Beyond human rights there is also objective morality; there are moral truths that are not simply about human rights. All communities, including political communities, are committed to the search for moral truth.
The reasonableness of morality does not stop at the level of human rights. Thus, once one accepts the objectivity of the morality of human rights, one should accept that this moral objectivity cannot be limited to rights. Perry’s barrier between the morality of human rights and the morality that might inform other policies or aspects of the legal system is artificial. Perry conflates the moral equality of all human beings derived from dignity79 with the equality of morality imposed by permissiveness, since “sectarian morals”80 and “moral unity of society” are not legitimate objectives of the political community.81 The consequence is the call for a free morality once human rights have been preserved. Perry does not realize that the equality of the subject (all person are morally equal) does not entail the equality of the object (all moralities are equal). For in a legal system not all moralities can be equal; each legal system must ultimately define its own morality even beyond the human rights and other legitimate objectives.
The application of Perry’s doctrine of moral freedom, rather than promoting moral autonomy and thus freedom of conscience, restricts it by imposing a non-pluralistic framework. Perry argues that no political community should dictate moral convictions to its citizens.82 However, this requirement to avoid the imposition of moral convictions is itself the dictate of a moral conviction. It dictates the moral restriction that morality beyond human rights is by definition a res privata which may be limited by government only when limiting it serves a legitimate interest or objective. It dictates the moral conviction that the status of all human beings as equally moral entails the equality of moralities, and even the free practice of one’s morality. It dictates the moral conviction that beyond the morality of human rights, morality is sectarian and can be regulated only to serve legitimate interests or objectives. Perry’s definition of legitimate interests83 is too narrow. For if it is read in the broadest sense, it seems axiomatic that policies should serve legitimate interests, and those policies that don’t do so are bad (either because they serve illegitimate interests, or because they serve no interest at all but are pointless restrictions). For Perry’s principle to have bite, it must be read in a way that unduly restricts the range of legitimate state purposes.
Perry’s individualistic approach to moral freedom also discriminates against collective pluralism and, thus against collective self-determination in morality. The solution to the question of moral freedom requires not just striving to create a neutral environment in which individuals may define their moral convictions. It is important also to promote a real political pluralism based on the possibility of the existence of different political communities with different moral convictions at their origins. The extent of public morality has to be different in each democratic political community depending on its cultural, moral, political, legal, and religious values, with special consideration given to minorities. The scope of its collective morality is part of a political community’s identity. Thus it cannot be dramatically reduced to the morality of human rights in every case. A system of public morality based on democratic rules is always open to the possibility of exemptions to protect one’s own morality, and this is a more reas onable and effective way to combine both individual and social morality. On the one hand, the possibility of the exemptions guarantees individual moral autonomy. On the other hand, the possibility of deciding the scope of public morality guarantees collective moral autonomy.
6. The “right to religion” and the “right to freedom of conscience”
The new shift in the paradigm of religious freedom should consist not of expanding it to include moral freedom but of distinguishing religious freedom from freedom of conscience and creating a different paradigm for each.84 The right of freedom of conscience will expand in order to embrace all expressions of religious and non-religious-based moral autonomy.
In a secularized world, it makes more sense to talk about the individual and collective right to have and practice a religion or belief, i.e., the “right to religion,” than about freedom of religion. Freedom is obviously a necessary condition for the existence of this basic human right, but the point of the right is to protect not freedom, which is instrumental, but the religious dimension of human beings in their individual and social attitudes and expressions. This articulation of the “right to religion” gives us a deeper understanding of its internal structure.
The right to religion establishes a limit to political government by protecting the religious capacity of the human person against political monopolization. But it also protects governments from improper religious interference. The right to religion prevents governments from instrumentalizing religion by recognizing the existence of autonomous religious communities and institutions. This right is based on the idea that only religious institutions are able to deal with religion since they are communities of voluntary and not compulsory membership. And this is so because the act of faith, i.e., of adherence to a religion, requires complete freedom. It is of its very nature a free act. Nobody is to be forced to embrace the faith against his own will.85 Ultimately, the right to religion protects citizens in their personal or communal search for ultimate truths against the imposition of any act of faith by political government, since the act of faith is an act of human dignity and not of political sovereignty. To protect religion as such is a legitimate interest of the political community but to “become religious” never will be a politically legitimate objective of the political community because it is by nature a non-religious community.
The right to religion includes all the traditional articulations of the American founders:86 “freedom of exercise or practice,” “religious equality before the law,” “freedom from religious discrimination,” and “freedom from religion or coercion in religious matters.” It does not, however, include freedom of conscience. Freedom of conscience, though closely related, should remain distinct from the right to religion, so that all moral decisions may be protected, whether or not they are based on a religious moral rationale.
The right to religion is illuminated by the principle of positive neutrality. It is called “positive neutrality” and not just neutrality in order to differentiate it from the liberal approach of negative neutrality or indifferentism supported by Ronald Dworkin87 and Bruce Ackerman88 among others. The principle of positive neutrality defends the impartiality of the political community in religious issues while recognizing the intrinsic value religion89 and political communities’ lack of competence to address issues of religious truth using political procedures, standards and tools. Proponents of positive neutrality argue that political community should be independent of any particular religion or belief, while acknowledging the necessity of religious communities and the personal value of religion.90 Positive neutrality opens the door to the possibility of religious exceptions when positive neutral law based on a moral rationale conflicts with the right to religion. A new German law on the circumcision of male children is a prime example of an attempt to solve such a conflict.91
The starting point of any regulation of the right to religion is that the political community is not a religious community, and that citizens were born without any religion, just as the unmarried are the starting-point for the right to marriage, and those not working, for the right to work. Each person was born without religion, without work, without marriage. Each human being is a potential religious being, a potential worker, and a potential spouse. Of course, there are differences: Work is discretionary, but essential if one has no independent wealth or support. Marriage is naturally attractive for many, but essential for the development of the political community and the stability of the family. Religion—belief in something—is irresistible, even if the object of one’s belief is discretionary. This irresistibility explains why religious socialization, a basic form of education, usually occurs within the family, in the early years of life.
The idea that the political community is not a religious community should not be in tension with the fact that many political communities constitutionally assume some religious values or traditions as a part of their identity, provided that this assumption never entails the imposition of an act of faith or adherence to a concrete religion.92 Again, the religious good is not an objective of the political community, as is the moral good. The state’s objective should be simply to protect the religious good as a value.
Essays on Law, Religion, and Morality
Bradley, Gerard V.
The most controversial foundational issue today in both legal philosophy and constitutional law is the relationship between objective moral norms and the positive law. Is it possible for the state to be morally “neutral” about such matters as marriage, the family, religion, religious liberty, and – as the Supreme Court once famously phrased it – “the meaning of life”? If such neutrality is possible, is it desirable?
In this volume of essays one of our country’s leading constitutional lawyers answers “no” to both questions. In the first three chapters, Gerard Bradley investigates the central moral justification of punishment, the morality of plea bargaining, and how the criminal justice system should treat the family. These essays reflect both Bradley’s decades as a teacher of criminal law as well as his earlier experience as a trial prosecutor in the Manhattan District Attorney’s Office. The second triptych of papers has to do with the raging controversy over same-sex “marriage,” and the broader movement toward a socially sanctioned orthodoxy about sexual orientation of which the “marriage” movement is one part. These papers reflect the author’s years of philosophical work on the marriage question, as well as his more practical experience as a popular debater and expert witness.
Finally, Bradley takes up the questions of religious liberty and how our democratic polity should treat religion. These chapters cover the original meaning of the First Amendment’s Establishment Clause, the role of Catholicism in the post-World War II controversies over movie censorship as they played out in the Supreme Court, and emerging challenges to religious liberty in the 21st century.
Gerard V. Bradley is Professor of Law at the University of Notre Dame., where serves as Co-Direcor of the Natural law Institute and as Co-Editor of The American Journal of Jurisprudence. Bradley is also a Visiting Fellow at the Hoover Institution of Stanford University, and a Senior Fellow of the Witherspoon Institutue in Princeton, N.J. He was for many years President of the Fellowship of Catholic Scholars.