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A right to religious and moral
freedom?
Rafael Domingo*
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.
1. Introduction
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
*
1
Professor of Law at the University of Navarra School of Law and Francisco de Vitoria Senior Fellow at the Center
for the Study of Law and Religion at Emory Law School in Atlanta. E-mail: [email protected].
Michael J. Perry, The Right to Religious and Moral Freedom, in Religion and Human Rights. An Introduction
269 (John Witte, Jr and M. Christian Green eds., 2012) [hereinafter Religious and Moral Freedom]; and
Michael J. Perry, The Right to Religious Freedom, with Particular Reference to Same Sex Marriage, 1 J. L.,
Religion & State 147 (2012) [hereinafter The Right to Religious Freedom]. In id. at 151, Perry says that he
refers to the right to religious and moral freedom as just the right to religion “for the sake of economy
I•CON (2014), Vol. 12 No. 1, 226–247doi:10.1093/icon/mou001
A right to religious and moral freedom?
227
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.”
of expression.” See also Michael J. Perry, The Right to Religious and Moral Freedom, in Michael J. Perry,
Human Rights in the Constitutional Law of the United States 112 [ch. 7] (2013) [hereinafter Human Rights
in the Constitutional Law]. For a revisited version of this chapter 7, see Michael J. Perry, Freedom of
Conscience as Religious and Moral Freedom, J. L. & Religion (forthcoming 2014) [hereinafter Freedom of
Conscience].
2
Perry, Religious and Moral Freedom, supra note 1, at 270; Perry, Human Rights in the Constitutional Law,
supra note 1, at 116–117.
3
Perry, Human Rights in the Constitutional Law, supra note 1, at 1.
4
See Michael J. Perry, The Idea of Human Rights (1998); Michael J. Perry, Toward a Theory of Human Rights
(2007); Perry, Human Rights in the Constitutional Law, supra note 1, at 1.
5
Perry, Human Rights in the Constitutional Law, supra note 1, at 1–3.
6
Cf. Michael J. Perry, The Political Morality of Liberal Democracy, esp. at 1–6 (2010).
7
Cf. Perry, Religious and Moral Freedom, supra note 1, at 269–272; Perry, Human Rights in the Constitutional
Law, supra note 1, at 112–118.
8
For a defense of this expansion, see the masterpiece Charles Taylor, A Secular Age, esp. at 1–22 (2007).
9
Perry, Human Rights in the Constitutional Law, supra note 1, at 120
10
See Rafael Domingo, A New Paradigm for Religious Freedom, 56(2) J. Church & State (forthcoming June
2014).
11
See infra Sections 4 and 6. Religious values and traditions can be important elements of the culture of a
political community, but democratic political communities as such are by nature not religious communities since they can neither use the religious argument nor impose on citizens an act of faith or adherence
to a concrete religion. Moreover, the end of the political community is not the religious good, but there is
instead the moral good.
228
I•CON 12 (2014), 226–247
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:
(a) 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.
(b) 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.
(c) Religious freedom does not entail a general moral freedom (understood as
moral independence) but only freedom of conscience (an expression of moral
autonomy).
(d) Asserting a single right to religious and moral freedom erroneously equates moral
equality with religious equality, to the detriment of public morality.
(e) 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.
(f) Religious beliefs can licitly play a more extensive role in political communities
than Perry allows.
(g) 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
Cf. these expressions at the beginning of Alexander Hamilton, The Federalist Papers No. 31 (1788), available at www.constitution.org: “In disquisitions of every kind, there are certain primary truths, or first
principles, upon which all subsequent reasonings must depend.”
13
See Lon L. Fuller, The Morality of Law 189 (rev’d ed. 1969).
14
See Remi Bragué, The Law of God. The Philosophical History of an Idea (2007).
15
See now Perry, Freedom of Conscience, supra note 1.
16
Perry, Human Rights in the Constitutional Law, supra note 1.
17
Perry, supra note 6, at 123–155; Perry, Religious and Moral Freedom, supra note 1, at 269–272; Perry,
Human Rights in the Constitutional Law, supra note 1, at 113–122.
18
Perry, supra note 6, at 123–155; Perry, “The Right to Religious Freedom, with Particular Reference to
Same Sex Marriage,” in Journal of Law, Religion & State 1 (2012) 149–179; Perry, Human Rights in the
Constitutional Law, supra note 1, at 136–178
12
A right to religious and moral freedom?
229
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
See Perry, supra note 6, at 9–26; Perry, Religious and Moral Freedom, supra note 1, at 269–272; and Perry,
Human Rights in the Constitutional Law, supra note 1, at 30–31.
20
See Perry, supra note 6, at 11 and 92.
21
Cf. Universal Declaration of Human Rights, art. 1.
22
See Perry, Human Rights in the Constitutional Law, supra note 1, at 27.
23
See id. at 28.
24
See id. at 28.
25
See id. at 23 and 28.
26
See id. at 22–23.
27
See id. at 105.
28
See Perry, supra note 6, at 62: “the human right to moral equality is the right of every human being to
be treated by lawmakers and other governments officials as one who has equal inherent dignity and is
inviolable.” See also Perry, Human Rights in the Constitutional Law, supra note 1, at 105–111.
29
See Perry, Human Rights in the Constitutional Law, supra note 1, at 106.
30
See Perry, supra note 6, at 65.
31
Id. at 89.
19
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I•CON 12 (2014), 226–247
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
34
35
36
37
38
39
40
Id. at 88–99.
Id. at 89.
Id. at 89.
Id. at 89.
Perry, Human Rights in the Constitutional Law, supra note 1, at 116.
See id. at 116.
See Perry, Freedom of Conscience, supra note 1.
See Perry, Human Rights in the Constitutional Law, supra note 1, at 113.
See Perry, From Religious Freedom to Moral Freedom, in San Diego L.R. 47 (2010) 1001. See also Perry, supra
note 6, at 88. Perry is deeply influenced by John Courtney Murray, as he expressly recognized. See John
Courtney Murray, Religious Liberty. Catholic Struggles with Pluralism (5th ed., Westminster, John Knox
Press, Louisville, Kentucky, 1993).
41
Perry, supra note 6, at 92–96.
42
Perry, Religious and Moral Freedom, supra note 1, at 274.
43
Perry, supra note 6, at 93.
44
Perry, Religious and Moral Freedom, supra note 1, at 272; Perry, The Right to Religious Freedom, supra note
1, at 156; Perry, Human Rights in the Constitutional Law, supra note 1, at 122.
32
33
A right to religious and moral freedom?
231
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
Perry, Human Rights in the Constitutional Law, supra note 1, at 121–122; Perry, Religious and Moral
Freedom, supra note 1, at 272.
46
Perry, supra note 6, at 75–80; Perry, Religious and Moral Freedom, supra note 1, at 273–274; Perry, The Right to
Religious Freedom, supra note 1, at 159–164; Perry, Human Rights in the Constitutional Law, supra note 1, at 122.
47
Perry, Religious and Moral Freedom, supra note 1, at 272.
48
Perry, Human Rights in the Constitutional Law, supra note 1, at 125.
49
See id. at 125. According to Perry, a non-affirmation of moral or religious belief fits into this paradigm;
for example, the US national motto “In God We Trust,” or the expression “Under God” in the Pledge of
Allegiance. See a development of this argument in Perry, supra note 6, at 100–119 (ch. 6).
50
Perry, supra note 6, at 99.
51
Adopted by the United Nations General Assembly on Dec. 16, 1966, entered into force Mar. 23, 1976.
52
Perry, Religious and Moral Freedom, supra note 1, at 269. See Perry, Human Rights in the Constitutional Law,
supra note 1, at 113.
53
See his argument in Perry, Religious and Moral Freedom, supra note 1, at 269–270. See also Perry, Human
Rights in the Constitutional Law, supra note 1, at 113–116.
54
Perry, Human Rights in the Constitutional Law, supra note 1, at 136–178. See also Perry, supra note 6, at
123–155; and Perry, The Right to Religious Freedom, supra note 1, at esp. 164–179.
55
Perry, Human Rights in the Constitutional Law, supra note 1, at 179.
56
Id. at 179. See also Perry, The Right to Religious Freedom, supra note 1, at 174–179.
45
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I•CON 12 (2014), 226–247
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
John Locke, A Letter Concerning Toleration, in The Selected Political Writings of John Locke 126 (Paul
E. Sigmund ed., 2005).
58
For further information, see John Witte, Jr, The Reformation of Rights. Law, Religion, and Human Rights in
Early Modern Calvinism (2007); Christianity and Human Rights (John Witte, Jr & Frank S. Alexander eds,
2010).
59
Cf. James Madison, Memorial and Remonstrance against Religious Assessments (1785) no. 1, available at
http://religiousfreedom.lib.virginia.edu/sacred/madison_m&r_1785.html. See also the Constitution of
Massachusetts (1780) pt I, art. II, drafted chiefly by John Adams, available at http://press-pubs.uchicago.
edu/founders/documents/bill_of_rightss6.html: “It is the right as well as the duty of all men in society,
publicly, and at stated seasons, to worship the Supreme Being, the great creator and preserver of the
universe.”
60
Locke, supra note 57, at 134.
61
Roger Williams, The Bloody Tenent of Persecution for Cause of Conscience [1644], in On Religious Liberty.
Selections from the Works of Roger Williams 85, 87 (James Calvon Davis ed., 2008).
62
Cf. Brian Tierney, The Idea of Natural Rights (1997); John Witte, Jr, The Reformations of Rights esp. 143–
208 (2007).
57
A right to religious and moral freedom?
233
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
See Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948);
International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No.
16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976; and see the full
text of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on
Religion or Belief, G.A. res. 36/55, 36 U.N. GAOR Supp. (No. 51) at 171, U.N. Doc. A/36/684 (1981).
See also Guidelines for Review to Legislation Pertaining to Religion or Belief, Title II, § A, no. 3, adopted
by the Venice Commission at 59th Plen. Sess., June 18–19, 2004, available at http://www.osce.org/
odihr/13993.
64
While this norm was set out in U.S. Const. amend. I (1791), it was not actively enforced in the United
States until the case of Everson v. Board of Education 330 U.S. 1 (1947). For an overview, see John Witte,
Jr & Joel A. Nichols, Religion and the American Constitutional Experiment 125–126 (3d ed. 2011).
65
See Jocelyn Maclure & Charles Taylor, Secularism and Freedom of Conscience 110 (2011).
66
See John Rawls, Political Liberalism 385–395 (expanded ed. 2005).
63
234
I•CON 12 (2014), 226–247
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
A right to religious and moral freedom?
235
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,”
In the same vein, see Robert Audi, Democratic Authority and the Separation of Church and State 12 (2012):
“The point is that knowledge of moral truths does not depend on knowledge of God or religious truths (or
on justification for religious or theological propositions).”
67
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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 grand­father
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
See in this vein Niklas Luhmann, A Systems Theory of Religion 123 (2013).
Ronald Dworkin, Justice for Hedgehogs (2011).
70
For a deep commentary on religious toleration based on this example, see Brian Leiter, Why Tolerate
Religion? (2013).
68
69
A right to religious and moral freedom?
237
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.
Lon L. Fuller, The Morality of Law 33 (rev’d ed. 1969). In a similar way, see Nigel Simmonds, Law as a Moral
Idea (2007).
71
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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.
See Robert Audi, Democratic Authority and the Separation of Church and State 12–13 (2011).
72
A right to religious and moral freedom?
239
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.
In the same vein, see Martin Rhonheimer, The Common Good
F. Murphy Jr ed., 2013).
73
of
Constitutional Democracy 118 (William
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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,
76
77
74
75
See Perry, supra note 6, at 88–99.
See id. at 93.
See Perry, Human Rights in the Constitutional Law, supra note 1, at 122. See also Perry, supra note 6, at 91.
Perry, Human Rights in the Constitutional Law, supra note 1, at 125.
A right to religious and moral freedom?
241
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
In this vein, see Joseph Raz, The Morality of Freedom 381 (2009 [1986]).
Perry, supra note 6, at 61.
80
Perry, Human Rights in the Constitutional Law, supra note 1, at 125.
81
Perry, supra note 6, at 93; Perry, Religious and Moral Freedom, supra note 1, at 273–274.
82
Perry, Religious and Moral Freedom, supra note 1, at 272–274.
78
79
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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-religiousbased 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
Id.
Against this idea see Maclure & Taylor, supra note 65, at 105: “There do not seem to be any principled reasons to isolate religion and place it in a class apart from the other conceptions of the world and the good.”
83
84
A right to religious and moral freedom?
243
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
For further explanation of this argument, see Rafael Domingo, A New Global Paradigm for Religious
Freedom, 54(3) J. Church & State (forthcoming June 2014).
86
Witte, Jr & Nichols, supra note 64, at 41–70.
87
Ronald Dworkin, A Matter of Principle 191 (1990 [1985]).
88
Bruce Ackerman, Social Justice in Liberal State 10 et seq. (1980).
89
For the beneficial influences of religion, see Jürgen Habermas, Between Naturalism and Religion. Philosophical
Essays 124–125, 209–247 (Ciaran Cronin trans., 2009).
90
In the same vein, on the US religious experience, see Andrew Koppelman, Defending American Religious
Neutrality esp. 26–42 (2013).
85
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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.
In the old paradigm of religious freedom, the starting point of the right to religious freedom was that political communities were also religious communities since
all citizens were religious people. So, the internal structure of the right to religious
freedom, according to the old paradigm, moved from religion to non-religion: since
the existence of God was socially axiomatic, everyone had the right to choose how
to worship God, or even whether to reject him. The starting point was a presumption
of religion. But in the new paradigm, the starting point is the presumption of nonreligion. This presumption permits legal systems not to discriminate between religious
and non-religious people. Nonetheless, the presumption has nothing to do with religious indifferentism. It is just a starting point. If political communities are not religious communities, the starting point should be that political citizens are not religious
citizens, but that they can be religious if they want to be.
The three important processes of secularization of the law in Western countries,
namely during the Roman Classical period, Modernity, and the Enlightenment, never
Cf. the new wording of Bürgerliches Gesetzbuch [BGB] [Civil Code], Aug. 18, 1896, Reichsgesetzblatt
[RGBl.] 195, as amended § 1631(d), sentence 2, on circumcision of male child (“Beschneidung des männlichen Kindes”):
91
In the first six months after the birth of the child persons delegated for that purpose by a
religious body too may perform circumcisions according to paragraph 1, if they are especially
trained for that purpose and, without being physicians, are comparatively qualified for performing circumcisions.
See further Rafael Domingo, The Metalegal God, 61(2) Ecclesiastical L.J. (forthcoming April 2014).
92
A right to religious and moral freedom?
245
implied a rejection of religion as such, but just a reconsideration of its position in public life, and particularly in relation to legal systems.93 The fourth and current process
of secularization can certainly clarify religion’s proper implications for legal systems
to help us establish a more balanced system that protects believers and non-believers
but never entails a rejection of religion in private and public life. In some ways, we can
say that secularization presupposes the very idea of religion: without religion there
is no secularization because religion is the object that secularization separates from
politics. When secularization tries to destroy religion, secularization destroys itself.
Secularization is always a movement from religion. So without religion there is no secularization. Religion is the starting point of secularization. The end of secularization
is not to destroy religion as a good, but to preserve religion from politics and politics
from religion through a process of mutual purification by reason.94 The final process
of secularization will end when the starting point is no longer religion but a presumption of non-religion. However, this does not mean that religion should disappear. It
just means a change of perspective: religion is no longer the starting point of the right
to religion, but a good to be protected by it.
In sum, the internal framework of the right to religion in the era of secularization
would be the following: it is a positive right (ius agendi) to develop individually and
collectively the religious capacity of the human being. This capacity is independent of
the aims of the political community, which is by nature a non-religious community.
Recognizing the right to religion, the political community treats religion as a value in
itself. So the starting point should be the presumption of non-religion: the structure of
the right should move from non-religion to religion.
The right to freedom of conscience, however, has a different internal structure.
It deals with morality, not with religion. Since the political community is moral by
definition, it is based on the presumption that all citizens are moral. Moreover, unlike
the right to religious freedom, the right to freedom of conscience is supported by the
principle of the priority of the person and not the principle of positive neutrality. The
right to freedom of conscience preserves the moral self, moral autonomy, or moral
conscience from moral requirements of the political community in cases of conflict. If
the human being and the political community are both moral, the legal system should
resolve conflicts between individual moral obligations and the public morality of the
political community.
For further information about the process of secularization of Roman law, and the original strong
relation between law and religion, see Max Kaser, Das altrömische ius. Studien zur Rechtsvorstellung und
Rechtsgeschichte der Römer 22–34, 301–360 (1940); 1 Max Kaser, Das römische Privatrecht 27–29
(2d ed. 1971); Franz Wieacker, Römische Rechtsgeschichte I. Quellenkunde, Rechtsbildung, Jurisrudenz und
Rechtsliteratur 310–340 (1988). For the other process of secularization, see Harold J. Berman, Law
and Revolution. I. The Formation of the Western Legal Tradition (1983) and Harold J. Berman, Law and
Revolution. II. The Impact of the Protestant Reformations on the Western Legal Tradition (2003).
94
See Benedict XVI, Religious Freedom: The Path to Peace (Jan. 1, 2011), available at http://www.vatican.va/holy_father/benedict_xvi/messages/peace/documents/hf_ben-xvi_mes_20101208_
xliv-world-day-peace_en.html.
93
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Freedom of conscience is the freedom required for any moral human being (homo
moralis). It is the result of linking freedom and conscience, as a human “laboratory”
for making moral decisions. Freedom of conscience legally preserves the idea of moral
obligation. By recognizing that the human person can be bound by himself, i.e., by
virtue of his own dignity, and not just by the command of sovereignty, legal systems
are implicitly recognizing the principle of personal accountability, which is key for the
development of any legal system. They are also implicitly recognizing the priority of
dignity over sovereignty, the primacy of the particular over the universal, and the centrality of the person in the political community.95
The secular legal system does not take into consideration the quality of the judgment of conscience in its relation to truth and the good, nor the potential contribution
of any kind of transcendent law in the decision making process.96 This is not its business. Freedom of conscience in secular legal systems protects the moral judgment of
conscience as such since it has been formulated by a person with dignity. The exception which confirms the rule is conscientious objection. In this case, the legal system
asks for a justification since every political act restricting the application of the law
requires a public justification in order not to be discriminatory.
Freedom of conscience protects this minimum area of moral freedom which may
not under any circumstances be violated. Where the frontier between private life and
the sphere of political authority should be drawn it is “a matter of argument, indeed
of haggling,” we can say with Isaiah Berlin.97 But in drawing that frontier, we should
leave space for freedom of religion as such, since political communities can develop
their own public morality by restraining freedom, but they cannot develop their own
public religion.
7. Conclusion
Religion and morality cannot be treated the same by legal systems, or be protected by
the same legal framework. They are different ontological realities which affect legal
systems in different ways. Religion calls for communities and institutions of voluntary
membership, not the compulsory membership of political communities. Political communities are not religious communities. So they can be neutral on religious issues and
protect the right to religious freedom. Political communities, however, are by nature
moral communities; they cannot be neutral on moral issues. Therefore, moral freedom
and religious freedom require a different treatment in secular legal systems. They cannot be treated as a single right.
Citizens have the right to live according to their religions and beliefs in a non-religious community such as the political community, but they cannot have the right
About the priority of the person, see John Finnis, The Priority of the Person Revisited, 58 Am. J. Jurisprudence
45 (2013).
96
More about the idea of transcendent law, see Remi Brague, The Law of God. The Philosophical History of an
Idea (2007).
97
Isaiah Berlin, Four Essays on Liberty 125 (1969).
95
A right to religious and moral freedom?
247
to practice their own morality inside a community that is by definition moral, as the
political community is. So there is no right to live and practice one’s morality, as Perry
argues, but just a right to freedom of conscience when there is a legal conflict between
a moral rule of the legal system and an individual moral obligation. Exemptions are
not against equality. They are an expression of the principle of the priority of the person that should illuminate the legal systems of all democratic political communities.
However, they should work in a different way when they deal with moral issues than
when they deal with religious issues. This is just a consequence of the fact that the
political community is moral and non-religious by definition.
There is no reason to establish the minimum of public morality required by a particular political community as the morality of human rights and legitimate interests
or objectives. Perry’s argument is mistaken because it is based on the idea that the
equal morality of all human beings renders equal all moralities, and that this in turn
demands moral freedom in the sense of moral independence. The status of the subject, “equal moral persons,” does not entail an expansion to the object: “equality of
moralities.” Pluralism and diversity as well the collective moral self-determination
of communities demand instead a model in which secular reasonableness and communitarian consent establish the legal standards of public morality, even beyond the
morality of human rights. Public morality as such is a legitimate interest or objective
of political communities.
The required expansion of the right to religious freedom in order to protect believers and non-believers should be done contrary to what Perry suggests by separating
the “right to religion” from “freedom of conscience.” These are two different, though
closely related, realities. The starting point for the right to religion is the “presumption of non-religion,” but the starting point of freedom of conscience is the “presumption of morality,” since the political community is non-religious but moral. Morality
is inalienable. Moral freedom should be understood as moral autonomy and not as
moral independence (as Perry sees it). Moral independence inevitably leads to social
permissiveness. Moral autonomy instead protects dignity in its individual and social
dimensions, avoiding a sort of schizophrenia between the individual and the social.
Perry’s new right to religious and moral freedom is a political option to deal with
moral and religious diversity in globalized societies, but in no case is it a compelling
claim upon liberal democracies, let alone a requirement of any basic human right.