September 07, 2005

How far does religious freedom extend?

In a previous posting that dealt with the problems that arise when you allow religious oaths in selecting jurors, I suggested that many of the religion-related frictions that occur in society would go away if the public sphere was made secular, and religion and religious practices stayed in the private sphere.

But while that might take care of some of the irritations that currently consume a lot of time and energy (swearing oaths, prayer in schools, the ten commandments in courts and city halls, locations of nativity scenes at Christmas, etc.) it would not take care of other issues, even in the unlikely event that the country committed itself to such a strict secular-religious demarcation.

In a comment to that previous posting, Erin pointed out that the separation might be hard to maintain when certain religious practices were taken into account since those practices might overlap with the public sphere. For example, she points out that certain religious groups such as Christian Scientists do not believe in taking medicine and would not take their children to a doctor even in the case of life threatening illnesses. And she also raises the issue about other religious groups that practice female genital mutilation. Should a secular state defer to religious sensibilities and stay out of such matters?

In a response to Erin, Paul pointed out that the religious freedoms outlined in the Bill of Rights do not extend to actual practices, and that the courts have ruled that the state has an over-riding interest in the welfare of children that enables it to overturn the wishes of the parents if it feels that the life and health and well-being of children are threatened. So parental religious beliefs cannot be extended to cover actions that affect their children if those actions can harm their lives and well-being.

Not being a constitutional lawyer, I am not sure if that is the last word on the legal status currently prevailing in the US. But in some ways that is irrelevant because I am more interested in exploring what might be a reasonable way of reconciling the secular and religious interests in a society, and will leave aside specific questions of constitutionality and legality for others who are more knowledgeable in those areas to determine.

My own view is that people should have the freedom to believe anything they want, to practice their religion, to seek converts, and to gather with like-minded people to worship, provided all these things involve consenting adults who are making voluntary choices to participate. But religious freedom surely cannot be extended to those who would wish to impose their own belief on others or if the practices impinge on the rights of others.

I would also argue that secular laws should not have religious beliefs as their only basis. They must also have a secular justification. For example, you should not be able to pass a law that criminalizes homosexuality or prevents gay marriages just because some religious people find some objection to it in the Bible. Laws that regulate human behavior have to have a clearly articulated secular purpose.

Of course, drawing the lines between what religious practices are allowed and what not is always a tricky issue that requires an extended discussion (and usually litigation), but here I just want to deal with the rights of children. I agree with Paul that the state has a right, and even an obligation, to protect the rights of those in no position to defend their rights and children clearly fall into that category.

So I also agree with Erin and am firmly opposed to the genital mutilation of female children because you are causing irreversible changes on a child's body without the child being in a position to give informed consent. Once the child becomes an adult, they should be able to make such a decision for themselves.

That same argument should apply to male circumcision as well. This again is something that I believe should be decided by someone after they become an adult, but of course this practice is common and does not cause any outrage. One reason for the two different responses seems to be that male circumcision has been sanctioned by western religious traditions while female genital mutilation has not. And from what I have read female genital mutilation seems to be a very dangerous, painful, and sometimes life-threatening procedure.

But if we are to be consistent on this issue, we should say that parents should not have the right to violate the physical integrity of children and impose irreversible physical changes on their bodies purely on the basis of religion, and that policy should apply equally to male and female children.


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I don't disagree with you in practice, but in principle I have one problem with your chain of reasoning, and that is - where do rights come from? It's not at all clear to me how one determines objectively which religious practices do and do not impinge on individual rights without having a culturally-neutral definition of those rights. And I'm not optimistic about such a thing.

Posted by Erin on September 7, 2005 08:48 AM

First Amendment "Purists" are so cute". One wonders if they have ever bothered reading it.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Okay class, who shall make no law? Right! Congress. Do they read the second clause? "or prohibiting the free excercise thereof".

Another thing that is so cute about the offended irreligionists is that they are so arrogant as to assume that they sit on top of the world deciding the proper view of all things religious. Well, we should thank them all for permitting us to believe anything we want as long as our views don't touch the "public" life.

Where do they find the law that mandates "separation of church and state"? It isn't in the constitution. It is more like a religious doctrine.

Does it occur to them that they might be being a little bit hipocritical when they decide how much public religion is acceptable? Not at all, they have decided that irreligion is the highest ideal.

Well, bully for them.

Do they bother to study the history of the colonizing of this landand the religious sentiments of the vast majority of early American colonists and then citizens? Only if it includes lopsided accounts of atrocities against Native Americans.

Does it occur to them that they are in fact the minority in this land and that there is no law demanding that the majority make the minority feel like everything is fair? No, they religiously believe that fairness is the highest ideal.

If they went to Tibet they would declare that irreligion is the new state religion. They would ridicule and deny the history, the humanity and the individual of every land to make non-religion the status quo. Then they would declare themselves the mother of every sentient being, always knowing the correct beliefs and when rise up and brush their teeth.

All the while these world improvers never suspect that perhaps their policies have been tainted with their own beliefs.

They get nervous if they suspect that some god has gained public credibility. One wonders, why. Does it threaten the atheist if people honor a particular religious tradition? Does it threaten the Jew? One wouldn't think so.

Do these puritans consider that a moral, religious people can and have lived in peace in this land for nearly three hundred years with minorities of irreligion and other religions?

Will they only smile when No-god rules supreme in this land? How tolerant is that?

Posted by jake on September 7, 2005 06:23 PM


Male C is both a 'western' and 'eastern' practice being common among people of Islam, Judaism and from what I have read several other systems of belief in many 'remote' parts of the world. FGM is practiced in some nominally Christian communities as well in Ethiopia, and parts of Eastern Africa.

As with many other 'religious' practices, it is possible to trace them to traditional power relationships that admittance to a formal religion only helps to solidify. For instance in India female foeticide is known to occur not only among Hindus - who may claim some 'religious' reasons for the practice; but also among Sikhs and Christians. So too with the demand for dowry whichi now in India is to be found among all religious groups.

Posted by shiva on September 7, 2005 10:15 PM

Jake,You bring up a good point in touching on a paradox that has often bothered me. Just as nearly anyone who cares about the governance of his country, I promote the public adoption of my own views, which happen to be laregly libertarian. I feel that everyone ought to be able to believe as they choose, and to practice those beliefs unencumbered by others, so long as that practice does not impinge on the rights of their fellow citizens to believe and practice as they choose. And there is the paradox:What of the citizen who believes it is his moral duty to enforce his moral code on me? In disallowing the enaction of laws based on his moral code, I am effectively enforcing my (irreligious) moral/ethical code on him, even if I don't see it this way! What is the solution?
I tend to feel as Mano, that "religious freedom surely cannot be extended to those who would wish to impose their own belief on others or if the practices impinge on the rights of others," but I can't help feeling slightly hypocritical in using this argument.As for the use of the First Amendment in these discussions, the phrase "separation of church and state" is not in the text of the Constitution, though it has been used in interpreting First Amendment for nearly as long as the document existed (Jefferson was an early proponent of the phrase). It entered constitutional case law in a 1947 Supreme Court decision. So while supporters of such a separation often misquote the actual text, their arguments are still based soundly in the law of the land.

Posted by John on September 7, 2005 10:58 PM

Mano: I think you've mixed up my reply somewhat with that of Cory Kates.

Sometimes I think the law could use a taste of scientific falsifiability: when a new law is passed it should have attached to it what the expected benefits are, and if after some time the benefits do not come, the law would automatically expire. I have no idea how this could be practically carried out, though, given the difficulty of identifying the real cause of, say, an economic upswing or downturn.

Posted by Paul Jarc on September 8, 2005 01:46 AM


Yes, male circumcision is practised by other eastern traditions. I should have made it clear that it was my view that if certain practices are done ONLY by non-western groups, then they are more likely to be viewed as strange and deplored. For example, if male circumcision was a practice limited to a small group of people in some remote area, would people have viewed it as a strange ritual?

Posted by Mano Singham on September 8, 2005 01:34 PM


I appreciate your honesty.

I also share your leaning toward the libertarian side of things.

You said...
I feel that everyone ought to be able to believe as they choose, and to practice those beliefs unencumbered by others, so long as that practice does not impinge on the rights of their fellow citizens to believe and practice as they choose.

I agree with you (I think). How can it be determined when a belief or practice impinges the rights of another? Perhaps harm is an easier thing to judge.

For example, I have seen piercings on tiny children and I have seen tatoos on pre-adolescent children. Have the parents harmed these children? Even this is a sticky question. But some will go further and suppose that bodily markings are a harm if they have religious motivation. (Do they have an anti-religious bias? It can appear so.)

If bodily markings are harmful beacause they are religiously motivated, then what is the guardian of public safety and happiness and hygiene to do? Shall they banish religious practices if they touch the body of the child no matter how otherwise well adjusted these children would appear? Are they not then the judge over the religious practices of these families? Do they pretend that they alone know the value or harm of certain religious practices?

My suggestion is that they mind their own business and answer for themselves the ultimate divine questions, rather than meddle with every affair of every believer of every type until they all think just as world manager does.

Posted by jake on September 8, 2005 06:25 PM

In many ways, I do agree with Jake's post - but not entirely. I think that it is very important to remember that it is just as unlawful to prohibit the free exercise of religion as it is to establish a state religion. However, there are times that permitting one religious group to do something in the name of its religion can preclude the free exercise of religion by others - and that is from where all of these debates originate. (Jake [or anyone else], if you'd be interested in debating/discussing these ideas, please feel free to e-mail me.)
On the subject of male circumcision, while I understand that there are those who do not like it (in which case they are free not to practice it), I for one am quite glad that I was not given the "choice" of circumcision or not. I do not remember my Brit Milah (ritual circumcision), and I am quite happy about that: I know people who, for whatever reason (conversion, living in the USSR, "progressive" parents) were not circumcised and therefore required the procedure as adults. While it is a very simple procedure on a child, it is much more difficult and painful on an adult. (Plus, not to mention that prohibiting our practice of Brit Milah would certainly violate the free-exercise clause...)
This is a debate that needs to be carried out between people with cool heads in order to avoid making rash generalizations and accusations, and so that all remember that we have our freedoms for a reason - and that destroying them in one way or the other benefits no one.

Posted by William Sherwin on September 13, 2005 12:16 AM


Can you give an example of one rligious practice precluding the free excercise of another person?

Perhaps the "Under God" phrase in the pledge of allegiance offends someone.

I personally am not offended by this practice because I do not believe that public education is a legitimate function of the federal government. It is virtually impossible to educate (in almost any topic) without some sort of "doctrinal view".

Whose beliefs should govern public education?

Therefore, if some state or county or district prefers to use some particular pledge, I can barely muster a yawn over the matter.

The education of a child is a concern for those closest in relation and in space to govern.

It becomes more apparent that the concern over religious sentiment reflected in schools is misplaced. People would be better served by rescuing the general public (particularly their own children) from government schooling.

Finally, I have no religious attachment to circumcision, but it would be appalling to think that those who do would be viewed in contempt or worse. As an advocate of home-birthing, I have experienced the annoying tendancy of the majority to think that it knows what is the proper way to view childbirth. Though I was not legally harassed, the threat seems to lurk in the background. This is liberal?

Posted by jake on September 14, 2005 03:21 PM