The Exchange

An extended essay on comparing how different jurisdictions around the world further liberty interests via their respective constitutional guarantees on the freedom of religion by drawing on Ronald Dworkin’s chapter on “Religion and Dignity” in Is Democracy Possible Here?

Sachs J., in his dissent in the South African case of Prince v President of the Law Society of the Cape of Good Hope recognizes that the primary evil that is obviated by protecting the Freedom of Religion is intolerance, both in its “spectacular and destructive” forms as well as in its “more benign” ones. The Freedom of Religion promotes the value of equality when it requires at the very least that religious minorities not be actively persecuted, and additionally may require that measures be put in place which allow these minority groups to preserve their identity.

However, when we begin to deal with the value of liberty, i.e. the notion that there is a sphere of human existence upon which the State cannot intrude, that we begin to find the Freedom of Religion problematic, in that its contours are largely dictated by the socio-political context. The problem of context may be demonstrated at the level of the individual by a consideration of the following dicta by Ngcobo J., also dissenting in Prince:

“The right to freedom of religion is probably one of the most important of all human rights. Religious issues are matters of the heart and faith. Religion forms the basis of a relationship between the believer and God or Creator and informs such relationship. It is a means of communicating with God or the Creator.”

Individual Liberty:
For some, every word the above passage will be pregnant with meaning. It will affirm for them the value of the most meaningful experiences human life has to offer. For others, the same passage is little more than white noise. For these others, the passage is intelligible to the extent that it vindicates the importance of the numinous and the transcendent, but becomes incomprehensible when it tries to designate religion as being especially suited to these ends, as opposed to other fields of human endeavour, such as art, music, literature, and other forms of expression. Thus, The main objective obtained by protecting the Freedom of Religion varies according to the observer. For the the religious, it is the protection solely of those aspects of human conduct that pertain to “religion”, which may be defined in the likeness of majority religion in the community (See for example Scalia J.’s dissent in McCreary County v ACLU (see opinions II & III) where he argues that the Religion Clauses of the First Amendment were intended only to protect Judeo-Christian monotheistic faiths). For the others, the value of safeguarding the Freedom of Religion is the protection of a much wider area of ethical convictions.

The problem demonstrated above on the level of the individual can be extrapolated to the national level by categorizing jurisdictions into generally secular countries, and generally religious ones. In the former we can, for the purposes of this essay, place Canada, South Africa, Germany, Turkey, France and the United Kingdom and in the latter we can place Malaysia and the United States . In the vast majority of the cases from the generally secular countries, we find that the Freedom of Religion is expressed as a profoundly individual liberty. Dickson CJ., in the Canadian case of Big M, held that the freedoms of conscience and religion “demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.” The majority of courts ranging from the South African Constitutional Court in Prince, to the Canadian Supreme Court in Syndicat Northcrest v Amselem and Multani, to the House of Lords in R (Begum) v Denbigh High School focused solely on the convictions of the individual applicant, rather than on the opinions of theologians and religious scholars, thereby echoing O’Connor J’s dicta in Planned Parenthood v Casey that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

In the cases from the category of generally religious countries, we find something quite different. The U.S. Supreme Court in Wisconsin v Yoder held that the Free Exercise clause of the First Amendment did not protect mere “personal and philosophical” convictions such as those evolved by Thoreau at Walden Pond, but required something of “a deep religious conviction, shared by an organized group, and intimately connected to daily living.” From this line of cases, it would be apparent that protecting the Freedom of Religion means that convictions and beliefs held together by a group are somehow more valuable than those held singly. The most breathtaking expressions of this principle are to be found in the Malaysian Federal Supreme Court cases of Lina Joy and the Headscarf case , where the protected liberty interest was viewed as being limited to convictions that are shared by an entire group, whether it be on apostasy or on the proper form of modest dress. Such a conception of the Freedom of Religion very narrowly construes the liberty interest, as it effectively means that there is no protection for a personal conviction if, firstly, it falls outside those dogmas officially sanctioned by the group, or secondly, if one is not part of the group. For an example of the former, we may consider Mohamed Dzaiddin SCJ.’s dicta in the Headscarf case denying a constitutional right to wear a purdah on account of the non-recognition by the nationally recognized Islamic authorities of such a religious requirement. For the latter, we may consider the dissent in Yoder, which complains that the majority opinion means that atheists or agnostics could not be conscientious objectors, contrary to the Court’s prior decision in U.S. v. Seeger. It is apparent that the Malaysian conception of the Freedom of Religion is positively violative of individual liberty, as it effectively construes the freedom to choose a religion as the freedom to supplicate oneself entirely to the official dictates of that religion, so much so that one would not be able to leave the religion except according to the sealed knot of its terms.

I argue that the best interpretation of the Freedom of Religion; i.e. the interpretation which, if protected, best serves the value of individual liberty, is that interpretation prevalent in the generally secular countries, and that the generally religious countries have simply got it wrong. It certainly appears that the Malaysian Court’s interpretation in Lina Joy is gravely misconceived. However, for that reason, it is by no means clear at the current moment that protecting the Freedom of Religion universally advances the value of individual liberty.

Freedom from Religion
Linked to the value of individual liberty to order one’s ethical convictions is negative freedom of religion, or “freedom from religion”. Again, we find that the meaning of “Freedom from Religion” differs between the generally religious and the generally secular.

In a generally religious society, where religious motifs and expressions are to be found on the legal tender and in oaths at ceremonies, it can be plausibly argued that a non-religious person cannot be said to suffer very great disadvantage in terms of personal anguish if she is subjected to, say, the sight of a statue with some religious significance: Van Orden v Perry. It must be noted that the governing question in that case was about whether the statute, a “passive monument”, had the effect of preferring one religion over the other or over none at all, and not whether the government of Texas had installed it with the purpose of establishing a particular religion, which would ostensibly have been prohibited by the Establishment clause, as interpreted by Lemon v Kurtzman. In the U.S. it cannot meaningfully be said that a non-believer is made to feel like an outsider by the presence of such symbols when even the coins ringing in pocket bear the motto “In God We Trust” .

On the other hand, in a generally secular society; meaning where public authorities are committed to secularism (there may be a abundance of historical and private institutions advertising religious expressions), the proportionality analysis comes out with very different results. In the German crucifix case the Bundesverfassungsgericht held that the principle of state neutrality meant that whereas an individual had no right to be spared the sight of manifestations of other faiths, a distinction had to be made from a situation created by the state where the individual is exposed to the influence of a particular faith without the possibility of escape. Protection of the Freedom from Religion arguably ensures, on the one hand, a liberty interest, in that it allows the individual the ability to define their own ethical convictions with, at any rate, less insidious influence from his or her surroundings. However, because such ethical convictions cannot be made in a vacuum, the more important value obtained here is equality, because people who make ethical choices that are different from the rest of the community must not be made to feel excluded. From this arise associated values such as social cohesion and diversity.

Participation in the Public Sphere
The commitment of the State to secularism has, however, implications for the extent to which the Freedom of Religion allows for religious expression and private participation in the public sphere. This inquiry concerns the limits of the liberty interest in the Freedom of Religion. Pace Dickson CJ., the extent of an individual’s liberty interest cannot be determined simply by reference to the point at which it causes another person harm. If that were the rule, any manifestation of one’s Freedom of Religion performed outside of a locked room would have to be forbidden, as it would be bound to harm another person’s enjoyment of their ability to maintain their own beliefs and convictions unmolested, of their right to personal security, or simply of an ambience of peace and quiet. As such, the necessary question is whether or not a person’s exercise of his or her Freedom of Religion imposes costs upon others in the community that can be easily borne by them. In other words, a proportionality or “balancing” test is needed to determine the outer limits of the individual liberty.

However, such a cost-benefit analysis of the Freedom of Religion leads to the following difficulties. A person wishing to exercise her liberty interest by, say, wearing a jilbab to her workplace is likely to value her being able to do so extremely highly; it concerns the eternal salvation or damnation of her soul. Given this state of affairs, it is not surprising if she, like the plaintiff in R (Begum) v Denbigh High School, should refuse to compromise at all, in order to meet the interests of the rest of society even halfway. It might be argued that this is merely the subjective valuation of the interest, and that a judicial decision-maker must instead rely on the objective value of the interest in comparing it with the equality and liberty interests of others concerned, such as her fellow schoolmates, or if she is a teacher as in the German Headscarf case, her students. However, even the subjective valuation has to take into account the personal anguish that the individual will suffer if she is required to compromise her life to come.

One way of dealing with this problem is by saying that such transcendent claims are illusory, and are based on a fundamental misconception of ethical value. The French Stasi Commission report concludes that

“[y]oung girls are pressured to force them to wear a religious symbol. The familial and social environment sometimes forces on them a choice that is not theirs. The Republic cannot remain deaf to the cries of distress from these young women. The educational space must remain for them a place of liberty and emancipation.”

The language suggests that women who wear the jilbab are labouring under a false consciousness, under which they are thwarting their own true interests. Under this model, secularism ceases to be merely “a wall which restricts to respect the separation between the State and denominations”, but a means of “strengthening [the] common values which form the social bond of [the] country.” In short, protecting the Freedom of Religion essentially becomes a means of social engineering in which concrete legal measures are taken to create a certain culture.

Such measures, it is submitted, are deeply troubling in that they violate liberty, which is understood as the right of individuals to decide on their own conceptions of ethical value. Rather, it is a perfect example of what Isaiah Berlin termed “positive” freedom, “with its suggestion of a man divided against himself…” In short, it is reminiscent of the phrase that launched the Jacobin Reign of Terror: “we must force the people to be free”.

It is preferable that the balancing exercise be carried out in terms of the costs to the individual and the costs of society, as was the case in Sahin v Turkey .  This has the advantage of making the protection of Freedom if Religion productive of values such as honesty and forthrightness on the part of individual applicants, values which are undoubtedly necessary in a citizen. Moreover, the Sahin model of Freedom of Religion allows some room for diversity and difference within society, a value that is obviated by the French model of cultural manipulation.