I’m snowed in this morning, and the political news has been sort of flat lately, so I thought I might address the subject of religious freedom under the law: how far a religion may go in asserting the freedom of its adherents to live and act according to its doctrines, and how far the law, whether in an unbounded tyranny or in a republic such as ours that purports to recognize religious freedom, may go in qualifying the requirements and limiting the practices of a religion.
Mind you, I don’t expect this to be a “comfortable” essay. Some of my Gentle Readers are likely to take umbrage at what I write. But that’s in the nature of both religion and law...isn’t it?
1. What Is A Religion?
Fundamentals are...fundamental. They come before all else. Therefore, in an inquiry such as this, they must be soundly addressed before all else. Only when we’ve established the two most fundamental considerations – the nature of a religion and the nature of law – can we make any headway on examining the interfaces between them.
Men espouse many beliefs. Some of those beliefs are easily distinguished from the rest by their invocation of non-falsifiable premises. The premises of importance, for this essay, are the ones that address the possibility of entities and powers beyond those of our spatiotemporal domain.
(An aside: I’ve resolved here to avoid the words real and reality. I intend to avoid the words exist and existence with equal determination. As Man is a material, time-bound creature, our vocabulary doesn’t cope well with propositions about the “reality” or the “existence” of non-material, supra-temporal beings. Our familiarity and regular interactions with material objects within our spatiotemporal domain can easily lead us astray.)
Religious beliefs must be non-falsifiable, because by the very nature of human senses and abilities they are non-verifiable. Thus we establish our first firm condition for classifying some belief system as a religion.
Some will counter that “in theory,” the truth or falsity of certain religious belief systems, including Christianity, could have been made testable and therefore falsifiable. They would propose a “chain of evidence” that unfortunately doesn’t exist, reaching from the life of Jesus of Nazareth to the present day, through which the veracity of the Gospels could be determined as if in a court of law. Leaving aside the “CSI objection” (“People lie; evidence doesn’t”), there are even more basic problems with such a notion. They arise from the Law of Alternatives:
For any irreproducible event, there will exist more than one explanation that does not require the denial (“It never happened”) of the event itself.
In other words, a phenomenon that can’t be reproduced can’t be definitively – i.e., omitting all possibility of an alternative – attributed to a single causal model. Indeed, the history of the physical sciences suggests that that’s also true of certain reproducible events. But that’s to the side.
To distinguish religious beliefs from other non-falsifiable beliefs, we must address their contrast from beliefs such as “The government is here to help me,” “My wife would never cheat on me,” or “My daughter is a virgin.” A religious belief must explicitly address entities that cannot be perceived – against their will, at least – by human senses. Moreover, such entities must be proposed to have a relationship with Man that begins with “Believe in Me” and continues on to “Live thus if you want Me to be happy with you.”
This leads to a genus and differentia for religious beliefs:
- Genus: A non-falsifiable belief,
- Differentia:
- About a non-material, supra-temporal entity or entities,
- That have a determinative – i.e., proscriptive, prescriptive, or both – relationship with Man.
Thus, while “global warming” is often derided of as a “religion,” the denotation is satirical only. In contrast, Christianity is a religion, as are Judaism, Islam, Hinduism, and so on.
2. The Scope Of Law.
A republic such as the United States, which nominally functions within a Constitutional framework, makes it relatively easy to determine the supposed scope of law. However, we’re not here for the easy cases. Let’s ponder the scope of law in the absence of such a framework: say, in a dictatorship where the decrees of a single individual constitute the “law.”
If we start from the primitively brutal conception of law as a decree from an institution whose masters intend to back it with force, we can proceed without our usual concerns about Constitutionality and religious specifics. This is a fruitful origin for several reasons:
- There are far more governments that lack a Constitutional framework than possess one;
- Those that do possess one seldom regard themselves as bound by it;
- The squabbles about matters such as “interpretation” and “supreme authority” will go on forever;
- The dynamics of non-Constitutional orders are far more easily analyzed.
Law stripped of all notions of “legitimacy” makes room for more practical considerations:
- What matters to the ruler(s);
- What matters to the subjects;
- The enforceability of the law;
- The probability of popular resistance or revolt.
Many a historical ruler of theoretically unlimited power had a far lighter hand than our contemporary federal government. Such rulers exerted the forces at their disposal most predictably when defied. They were plainly less interested in exercising their notional powers than in retaining them. Yet among them were many who chose to decree a state religion. In some such cases, the observance and practice of that religion was made obligatory; in others, the subjects were merely expected to support it with a tithe.
At the root of many such decrees was a need to put their regime on a religious foundation. The collaboration of Throne and Altar was critical to the perpetuation of many a monarchy. Here we see gropings for legitimacy that go beyond the might-makes-right rule of the preponderance of force. These became ever more important with the evolution of concepts of nobility and advances in technology that cast into doubt the proposition that any government, however constituted could really possess an unchallengeable preponderance of force.
The ultimate priority of every government is to remain in power and to be acknowledged as such. The principal requirements for that priority are:
- A patina of legitimacy;
- Force enough to enforce its decrees;
- Laws whose enforcement the subjects will tolerate.
Those three requirements interlock. They also interact with the dominant religious convictions of the subject populace.
3. The Facts.
Though it’s a near approach to tautology, we must allow that in any sociopolitical order:
- The effective degree of religious freedom will be what the politically significant (or protected) religious groups can get away with;
- The effective degree of religious constraint will be whatever the rulers can impose and enforce without adverse consequences.
The incentives and penalties here are imperative in the extreme. No political system can long endure without the consent – grudging or otherwise – of the subject populace. Any widespread belief that clashes with the State’s decrees is a source of opposition to it. Therefore, the State will be minded to act against such beliefs...but if its decrees exceed beyond its power to enforce them to a sufficient degree, the consequences will be bad, for the discovery that the State can be defied without penalty will engender an ever increasing amount of defiance. Thus, the State must take care to “stay inside the religious lines,” whatever they might be, if it wishes to keep a grip on its pretense of legitimacy and its effective power to rule.
Many tyrannies have discovered that the attempt to suppress certain religions and religious practices as hostile to the interests of the State is fraught with extreme peril. Only a group that’s both small and effectively demonizable can be treated in such a fashion with no risk of blowback. If you’ve ever wondered why the Jews have so frequently come under some tyranny’s hammer, now you know.
The matter is murkiest in a multi-sectarian society with a political order that requires more than one kind of popular acquiescence. Different religious sects promulgate different standards of behavior. For example, there are sects derived from both Amerind and Caribbean belief systems that treat certain intoxicants as sacraments. Those intoxicants are banned by federal or state law throughout this country. Yet when it comes to those sects, the laws go unenforced under a rationale of respect for “religious freedom.” In point of fact, the State feels no such respect and would suppress Amerind and Caribbean uses of those intoxicants if its masters felt they could do so without unacceptable consequences. They cannot do so because even among Americans who support the drug laws, popular convictions about religious freedom would evoke unacceptable degrees of resistance.
Inversely, American Catholic institutions are under tremendous political pressure to conform to certain laws that expressly demand the violation of Catholic convictions. The masters of the State have found in practice that they can enforce laws that override those convictions – that there’s sufficient popular support for those laws and for their enforcement, Catholics’ religious objections notwithstanding. The seeming paradox is that there are far more American Catholics than there are Amerinds or Rastafarians. What tips the scales is the magnitude of support for laws that require, say, Catholic pharmacists to sell abortifacients and Catholic employers to provide medical insurance that would cover abortions.
4. The “Shoulds”
“Should” – the modifier that denotes the imperative mood – is the toughest of all words to argue about. Many “shoulds” have been premised on beliefs that were later discarded, whether profitably or otherwise. Moreover, there’s no escape from that box:
From propositions about fact alone no practical conclusion can ever be drawn. This will preserve society cannot lead to do this except by the mediation of society ought to be preserved. This will cost you your life cannot lead directly to do not do this: it can lead to it only through a felt desire or an acknowledged duty of self-preservation. The Innovator is trying to get a conclusion in the imperative mood out of premisses in the indicative mood: and though he continues trying to all eternity he cannot succeed, for the thing is impossible. We must therefore either extend the word Reason to include what our ancestors called Practical Reason and confess that judgements such as society ought to be preserved (though they can support themselves by no reason of the sort that Gaius and Titius demand) are not mere sentiments but are rationality itself; or else we must give up at once, and for ever, the attempt to find a core of 'rational' value behind all the sentiments we have debunked. [C. S. Lewis, The Abolition Of Man.]
Whenever we use the word rights outside the legal context, we are saying “should” or “should not.” Such propositions, pace Lewis, cannot be proved or disproved. They can be denied; they can be violated, sometimes without penalty to the violator. But those are practical considerations only.
When I wrote that:
One of the least pleasant and most frequently averted objections to a demand for this or that is "Prove it:"
Prove that what you demand is yours by right.
Prove that the changes you advocate will do more good than harm.
Prove that history offers us any evidence whatsoever in support of your theories.
Virtually no one raises that objection in its simplest, purest form. The losses have been staggering.
"You say your convictions are absolute? A clear matter of right and justice?" the counter-proselyte says to the proselyte. "But you can't prove them, can you? No, I can't disprove them, but neither am I inclined to allow you power over others on your representation. Go back where you came from and keep company with others of like mind. We'll have no truck with you here."
This is practically the American credo...which we persist in setting aside with distressing frequency, usually in the hope of mollifying some noisy pressure group. Indeed, it's been off the socio-economic-legal-political playing field since about 1913. And in consequence, the promoters of nostrums crazier than any Napoleon-wannabe have had their way with us as we've stood by goggle-eyed.
...I was thinking of my fervent, long-held conviction that every individual has a right to be left alone: a “should” that many would accept but many others would reject. It’s as un-falsifiable, and therefore as un-verifiable, as the demands of those who’d elicited my denunciation. The irony, as I review those words of nearly four years ago, is simply overwhelming. The only support it has is essentially religious: my belief, shared by millions of others, that “it should be that way.”
Marc Stiegler presented us with a sly “should” in his novel David’s Sling.
"The Institute recognized three broad classes of decisions, and three broad methods of decision-making: engineering decisions, political decisions, and unresolvable decisions....
"Engineering decisions were made by finding the correct, or best, answer. This was the best decision-making methodology whenever possible, but often human affairs proved too ambiguous for this wholly rational analysis.
Political decisions were made by building an answer of consensus. In difficult cases, the consensus decision might be to let one particular man make a decision, but that was a form of consensus nonetheless. Because political decision systems could generate decisions in more situations than engineering decision systems, political systems typically gained pre-eminence over engineering. For the most part, this arrangement worked well—except that too often, the politicians made political decisions in situation where engineering applied, usually with tragic consequences. The key question was, how do you decide whether to use politics or engineering to decide? Politicians had all too often decided to use politics.
Zeteticism had recognized an important truth: the choice between politics and engineering is always an engineering decision.
Study that passage. (It’ll be on the final exam.) Find the hidden “should.” Decide whether you agree with the statement that contains it. Then consider whether you’d be willing to defend that statement in an open forum. Clashes between religious assertions and political assertions are of the very same sort.
As usual I could go on, but why bother? The problems involved are insoluble at the theoretical level. Only practical tests of State authority against popular sentiment can be studied – and worse yet, no one can accurately forecast the outcome of such a test a priori. Hari Seldon’s “psychohistory” remains a figment of the imagination.
It is perhaps unfortunate, despite the reverence we associate with the Bill of Rights, that “freedom of religion” appears in the First Amendment. Endless arguments over what constitutes a religion that the State must abstain from infringing upon have come nowhere near settling the matter. Had our political order remained within strict Constitutional constraints – i.e., that the federal government may only do what’s expressly authorized in the Constitution; that the state governments may only do what’s expressly authorized in their constitutions and charters; and that all else is absolutely protected by individuals’ and voluntary associations’ uninfringeable rights – many clashes over religious freedom would never have arisen. Nevertheless, here we are.
And we may expect the fusillades over what’s protected by religious freedom, and upon which of its fringes the State may tread, to continue for generations to come.
