The Facebook page for this event states:

The New Zealand Bill of Rights Act states:

13 – Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

14 – Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

15 – Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

• How should we read these sections alongside idea that New Zealand is a secular society?
• How should we read them alongside the viewpoint advanced most notably by philosophers such as John Rawls that religion should be privatised?
• Does Separation of Church and State require Separation of Religion from public life?
• Can we still have Freedom of Religion in New Zealand and hold to these views?
• What approach is just and fair in a pluralistic society like ours?

Analytic Theologian and Ethicist, Dr Matthew Flannagan and Legal Scholar, Madeleine Flannagan (a post-graduate student in Law at Auckland) will give a joint lecture followed by a Q&A session on the topic Freedom of Religion in a Secular Society from 7.00-8.30pm on Monday 12 September 2011 in Clock Tower 032.

http://www.youtube.com/watch?v=sfnCKFs9DWk

Each speaker has published the speeches they wrote for this event:

• Matthew Flannagan’s speech – Theology
• Glenn Peoples’ speech – Philosophy
• Madeleine Flannagan’s speech – Law

Hat tip (and credit for filming and editing this video): Stuart at Thinking Matters.

A few weeks ago, as part of Jesus Week at the University of Auckland, Thinking Matters and Evangelical Union hosted an event entitled A Godless Public Square: Do ‘Private’ Christian Beliefs Have a Place in Public Life? This event was a conversation between Theology, Philosophy and Law and featured Matthew Flannagan - Analytic Theologian, Glenn Peoples - Philosopher and Madeleine Flannagan - Legal Scholar. The video is still being edited and will be available soon but for now, this 3-part series comprises the written speeches of each speaker.

Madeleine Flannagan – Law

Glenn and Matt dealt with moral restraint; the idea prevalent in our society that those of us with religious convictions ought to keep them to ourselves when we participate in public life.

Often people contend or try to imply that this obligation is required by law. We’ve all heard politicians, people in the media, leaders in our communities, lecturers at university assert that we are a secular nation and that our commitment to freedom of religion requires a secular public square.[1]

And they are not wrong to a degree. It is evident that something like this ‘obligation’ advanced by the likes of Rawls, Audi, Gaus, et al is present in western jurisprudence – most obviously in that coming out of the United States; you do not need to have studied law to be aware of this, you will have picked up on it if you have watched any American TV.

Separation of Church and State or Separationism?

Most people are aware that the US Supreme Court has interpreted America’s Religious Freedom and Free Exercise laws to mean that religious instruction, prayer, references to God, displays of the 10 commandments, nativity scenes — even where participation is totally voluntary — are banned from public institutions.

This “separationist” reading of the 1st amendment is drawn from US Founding Father Thomas Jefferson’s “Wall of separation Letter” to the Danbury Baptists Association in 1802. But it is unlikely that this reading is what Jefferson meant. At the time he was writing in early nineteenth century America, the common perception of the relationship between church and state reflected a long-standing European tradition.

Legal scholar Steven Smith wrote in “Separation and the Secular: Reconstructing the Disestablishment Decision” that,

… At least since the middle ages, scholars and polemicists of all stripes had argued-on both religious and political grounds-that the church should exercise control over the state or-again on both religious and political grounds-that the state should control the church. The common view for centuries had been that an established church was essential to political and social stability.[2]

He added,

… In medieval Europe, for example, kings had claimed, and had exercised, the power to appoint bishops and popes. After the Reformation, the British monarch became the official head of the Church of England, and British government assumed control over both the selection of ecclesiastical officials and the formulation of religious doctrine.[3]

In fact, the Book of Common Prayer, including the 39 Articles, was commissioned and approved by the Crown.

Smith goes on,

… medieval popes regularly crowned earthly emperors and kings, and they claimed (and frequently purported to exercise) the authority not merely to excommunicate but actually to depose those kings. Popes sometimes asserted jurisdiction to adjudicate what were essentially political or property disputes. In England, the Church enjoyed-and still enjoys-official representation in Parliament. Immigrants later imported established churches in some form into most of the American colonies.[4]

The church-state relationship that was familiar to an eighteenth century American was that “governments controlled or directly intervened in the internal affairs of churches, and churches claimed and were formally endowed with governmental powers.”

At the time Jefferson was writing, many US States had established churches; so when the United States Congress promised to “… make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”[5] they more likely had in mind that Separation of Church and State is simply the idea that the church should not be formally endowed with governmental powers and the state should not try to intervene in or control the church.

Separation of church and state is not separation of religious beliefs from public life (perhaps this confusion arises because both concepts have the word “separation” in them). The idea that Congress meant something more than mere Separation of Church and State when it passed the first amendment – that Congress meant Separationism — was birthed in the mid to late 20th century – some 200 years later – by the US Supreme Court when it began to hear cases about prayer in schools and the funding of Catholic schools.

Separationism and Separation of Church and State, as we have seen, are different ideas and one doe not entail the other.

Comparitive Jurisdictions

This is not just about the US. Separationist understandings of freedom of religion can be seen in Western jurisprudence elsewhere. There are European cases that exhibit it – even in places like the UK that do have an established church. Many of you will have heard the cases in the media of workers being sent home from their jobs after refusing to follow an instructions from their employers to remove religious jewellery[6] – normal jewellery was fine, just not anything that symbolised God.

The “Liberty Intervening” case is another UK example; a state-Celebrant refused to perform civil partnerships between members of the same sex. Because of her views on marriage, she was found to have discriminated against those couples. She could not appeal to freedom of religion as the court held that her employer’s requirement she perform same sex civil partnerships did not interfere with her ability to worship.[7]

Then there is this case, the summary from the head note explains it clearly:

Summary: The Employment Appeal Tribunal had correctly decided that a counselling organisation had not breached the Employment Equality (Religion or Belief) Regulations 2003 reg.3(1)(a) or reg.3(1)(b) when it dismissed one of its relationship counsellors who refused to counsel same sex couples on sexual matters because of his Christian beliefs. Although the law protected a person’s right to hold or express their religious beliefs, it did not protect the substance or content of those beliefs on the ground only that they were based on religious precepts.[8]

The last line seems to suggest a denial of the existence of a right to freedom of religion. In the judgment of the case this summary note comes from, Lord Justice Laws gave a lengthy spiel on its views on religion in public life, despite going on to rule as just stated, part of that spiel was:

“We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion, any belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other.”[9]

Sounds all good and equal right? – keep this quote in mind as we move onto the next case.

Earlier this year, 2011, this next one hit the news here in New Zealand; it was that of Eunice and Owen Johns, Christian foster parents, who had been disallowed from continuing to be foster parents after telling a social worker that they could not state that homosexual conduct was a good thing to one of their charges. The Johns took a case on the grounds of discrimination against their religious belief – which they understood they were free to hold to and live by – and they lost.

In their case the Lord Justice Munby quoted Lord Justice Laws’s lengthy spiel in McFarlane and Relate Avon Limited, including the quote I said to keep in mind, and after doing so they said: “We respectfully and emphatically agree with every word of that.” Then the court offered as its basis for refusing to let the Johns be foster parents,

“In the circumstances we cannot avoid the need to re-state what ought to be, but seemingly are not, well understood principles regulating the relationship of religion and law in our society. We preface what follows with the obvious point that we live in this country in a democratic and pluralistic society, in a secular state not a theocracy.”[Emphasis mine.]

So basically, it is the Court’s position that all viewpoints are equal – they referred to “religion” and “any belief system” BUT! (channelling some Orwell here) secular viewpoints are more equal than other viewpoints — and to suggest otherwise is to advocate for a theocracy.

Religious Freedom in New Zealand

So that all said about other countries; how does Freedom of Religion work for us in New Zealand?

Now, obviously NZ has its own laws and it is not bound by international laws and jurisprudence, but, if and when we do get some cases on these issues (we have not had many at all so far) it will be jurisdictions like the United Kingdom, the United States, Australia and Canada – the latter’s Bill of Rights arguably operates the closest to ours – that our judges will look to this body of jurisprudence for guidance in interpreting our laws because many of the same questions and factors come in to play in these western nations with a common law history and more litigation on this topic than we have had.

NZ Rights and Freedom law expert, Paul Rishworth, makes the point, and I think he is right, that as a group or belief system increasingly dominates as a majority in society there tends to be a rise in litigation over rights of minority groups. This is because the smaller they get the less the mainstream cares about their rights being infringed. Rishworth expects that we will see a rise in religious freedom cases in New Zealand in the future because of this.[10]

This is why it is important for us to have this conversation now, for us to be thinking about what the Church’s, what our response to the ideas being discussed here tonight are and what sort of Jurisprudence and public policy we want to see be developed here in NZ. [Other organisations in our society are as I documented in The New Zealand Association of Rationalist Humanists and the Privileging of Secularism. The “NZARH” has published a statement of aspirational ideals for the New Zealand state on their website. Entitled “The Tolerant Secular State” the document seeks the eradication of religion from public life.]

Central to these church-state debates are questions around which circumstances governmental accommodation or endorsement of a religious practice or idea amounts to coercion of a dissenter from that practice, and is therefore, a violation of freedom of religion.

It is here that questions of religion in public life come to the fore. Does the guarantee of freedom of religion entail that religion be regulated to the private sphere with the state adopting and privileging a “secular” perspective on the grounds that this is allegedly neutral towards religions?

I will argue it does not; especially not in New Zealand. Let us turn to the New Zealand Bill of Rights Act.

Bill of Rights Act

What sets our freedom of religion clauses in our Bill of Rights apart from, say, the US Constitution, is that we do not have an establishment clause. Further, we do not define religion narrowly nor do we view narrowly its expressions.

There is one other interesting aspect to how NZ has approached this issue (and no, I am not talking about the fact our Bill of Rights Act is a simple statute).

Our freedom of religion clauses are contained in three passages, sections: 13, 14 and 15 – the placement of section 14 between sections 13 and 15 was deliberate. Let’s look at each.

13 Freedom of thought, conscience, and religion

Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference. [Emphasis mine]

Now in law when you see a list of things separated by commas in the same section of an Act, as you do here, you know that Parliament is meaning to place these things on par with each other and is meaning to suggest they have a sort of equality or sameness to each other. Unless the text explicitly says otherwise, they have to be treated and weighted the same.

The New Zealand Bill of Rights then protects equally not just religion but thought, conscience and belief.

The nature of what “belief” is is what I want to focus on here.

No New Zealand cases under s13 have yet defined religion or belief – although we have a definition in s21(d) of the Human Rights Act “ethical belief, which means the lack of a religious belief, whether in respect of a particular religion or religions or all religions” and in other legislation.[11] A judge is likely to look further afield than this to be sure that the definition is appropriate for the legal issues in this particular area of law.

 International and comparative Jurisprudence has some definitions specific to this area. The International Covenant on Civil and Political Rights (ICCPR) Travaux Prepetoire states that ‘belief’ entails “such other beliefs as agnosticism, free thought, atheism and rationalism”.

The European Court of Human Rights (ECHR) supports this view and adds (sounding a bit like Rawls) that “coherent views on fundamental problems” will qualify as beliefs.

Similar definitions can be found in the jurisprudence of other western jurisdictions. Comprehensive secular viewpoints count as ‘belief’ and the State is required to protect and treat them equally with religion.

Whilst s 13 deals with what you are allowed to think and believe s 14 is about finding out more and sharing what think and believe:

14 Freedom of expression

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form. [Emphasis mine]

Note that your right to seek, receive and impart information about what you believe, is stated absolutely and without limit as to location; it entails that both private and public forums is what is meant. This is bourn out in s 15, the section that covers what you do with your beliefs:

15 Manifestation of religion and belief

Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private. [Emphasis mine]

You can act on your comprehensive secular belief and/or your religious belief in public or in private – again the wording is broad and unlimited.

So if freedom of religion entails that public policy discussions and administration cannot include religious considerations – that religion must be excluded from public life to safeguard religious freedom – then parity of argument suggests that freedom of ethical belief – such as secular humanism, agnosticism or atheism – precludes ethical beliefs in public policy considerations. We’re supposed to treat beliefs equally afterall.

In fact, s 15 gives proponents of religious beliefs and secular beliefs the same rights to express and manifest their belief, teach them, share them, practice them, live in accord with them, in public without limitation. The Bill of Rights allows – no, requires – parallel arguments either way.

So holding that in mind, take a look at the Education Act 1989 (just read the italicised parts if you find legalese confusing):

77  State primary schools to be kept open at certain times
Except to the extent that—

(a) a school term commences on any day other than a Monday or ends with any day other than a Friday; or

(b) a school is lawfully closed pursuant to section 129C,—

every State primary school shall be kept open 5 days in each week for at least 4 hours each day, of which hours 2 in the morning and 2 in the afternoon shall be; and the teaching shall be entirely of a secular character. [Emphasis mine]

78 Religious instruction and observances in State primary schools
Notwithstanding anything to the contrary in section 77, if the school’s board for the school district in which the school is situated, after consultation with the principal, so determines, any class or classes at the school, or the school as a whole, may be closed at any time or times of the school day for any period or periods exceeding in the aggregate neither 60 minutes in any week nor 20 hours in any school year, for any class, for the purposes of religious instruction given by voluntary instructors approved by the school’s board and of religious observances conducted in a manner approved by the school’s board or for either of those purposes; and the school buildings may be used for those purposes or for either of them.

Basically, section 77 states that all teaching in a state school must be secular. Section 78 provides that if you want to bring religious teaching into a state school you have to go to the board, have consultations, officially close the school and bring in volunteers… Equal treatment of viewpoints much?

[The justification for this affront to the Bill of Rights, involves a jurisprudential move utilising a Rawlsian approach and the operational clauses of the Bill of Rights Act - sections 5, 4 and 6. I do not have time to go into how this works here tonight, perhaps another time.]

The only reason the lack of parallel argument is accepted and that some of what you have heard tonight is news is because so many people, including the church, accept the false claim that secular beliefs are neutral and that permitting religious beliefs to be out there in public, in our schools, expressed our government would be somehow tipping the balance towards a bias – privileging one viewpoint over the others – and that that would be unjust. What is unjust and biased is the claim that in order for the state to discharge its duties under the Bill of Rights to treat public expressions of ethical belief as being on par with religion, it must privilege secularism and relegate religion to the private sphere.

The first two sentences of the document exhibit a confusion which is inherent throughout (and commonly found in discussions of church and state):

“The NZARH strongly believes that government should be secular; that is dealing with the issues of this world rather than following a religious agenda. Our law should not give one set of beliefs privilege over another and the state should treat religious organisations the same as any other organisation.”

An equivocation on the meaning of the word “secular” in the very first sentence is immediately apparent.

Stephen Smith notes that the word secular has two distinct meanings. Etymologically, “secular” refers to things pertaining to this world and life as opposed to the next. In this sense of the word “secular” is not opposed to religion; many religious beliefs and values pertain to life in this world, beliefs about: marriage, sex, human life, killing,  justice for the poor, what one’s duties are in this life, what God’s purposes are in this life and so on are all secular beliefs in this sense. The second and more common meaning of “secular” is to say it excludes, is in opposition to beliefs and values that are religious in nature; this is usually the first definition one will find in a dictionary.

The NZARH use both meanings in the first sentence of their “Tolerant Secular State” document. They start by defining secular in the first of these senses, in terms of “dealing with the issues of this world.” The switch to the second definition occurs immediately in the claim that a secular state must not follow a “religious agenda.” From what the NZARH subsequently argues it is clear that this second sense is what it really has in mind as much of what it says simply does not follow from the first sense.

It is important to note here what the NZARH mean by “privilege” in ”our law should not give one set of beliefs privilege over another.” The NZARH specifically mean that the viewpoint of religion must not be a source of law or public policy and by implication, cannot be a motivation or a justification for a source of law or public policy. If this is not what they mean by privilege then their argument makes no sense; the claim that the government must not follow “a religious agenda” and must “be secular” is supported by the contention that religious beliefs should not be privileged. If basing a law on a religious agenda is not privileging it then the argument does not follow.

That clarified, the NZARH’s argument is essentially:

1) The government should be secular, not religious;

This means the state should make a clear distinction between secular views and non-secular views and it should treat them differently. It should base its policies on the former type of view and not the latter. As such, on the understanding of “privilege” outlined above, the State should privilege secular beliefs over religious ones.

The basis for this is that,

2) Our laws should not privilege any one view over another, the state should treat religion the same as any other view.

So let us get this straight. Secularism is a type of viewpoint that 1) the NZARH seeks to privilege over religion but then 2) states that viewpoints must not be privileged.

Of course, if one assumes from the outset that secularism is not a specific view and is somehow some kind of neutral position that everyone can subscribe to then the statements read together might make sense but that is an erroneous assumption.

Secularism is a Viewpoint under New Zealand Law
The New Zealand Bill of Rights Act (1990), which the NZARH’s “Tolerant Secular State” document holds out as “key legislation that upholds the principles of the fair and tolerant society” identifies and treats secularism as a view or a set of beliefs. The Bill of Rights has three relevant sections:

13 Freedom of thought, conscience, and religion
Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.
14 Freedom of expression
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
15 Manifestation of religion and belief
Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

The gist of these three sections is that in New Zealand anyone can form and identify with whatever belief, viewpoint or idea they please, find out more about it, discuss and share it with others and act in accord with it, in public as well as private, as long as they do so with regard to the other rights present in the Bill of Rights. What a lot of people miss however is how the Bill of Rights treats viewpoints.

Section 13 is typically thought of as the Freedom of Religion section. But read it closely you’ll see that “thought”, “conscience”, “religion” and “belief” are listed – all described as “opinions” not religious views. Had the drafters wished to make s13 solely a religion section then they would have kept the language that of religious terminology only.

Sections 14′s “information and opinions of any kind and in any form” and s15′s “religion and belief” tell us that under New Zealand law non-religious beliefs are intended to be treated and dealt with by the state in precisely the same way as religious beliefs.

This is backed up in the various commentaries and government documents that have been published on these sections of the Bill of Rights – here are a couple from New Zealand Human Rights Commission Documents. (I note that the NZARH’s Tolerant Secular State document also praises the Human Rights Act 1993 which was the source of law which created the Human Rights Commission). The first is speaking of the New Zealand Bill of Rights Act 1990;

“What religions or beliefs are covered?
Religion or belief includes mainstream religions, minority or atheistic beliefs and the right not to have a belief.”

[The Right to Freedom of Religion and Belief]

This one is a reference to the International Bill of Rights of which New Zealand has bound itself by and which is widely acknowledged to form part of the source of  the wording and meaning of our Bill of Rights:

“What is the right to freedom of religion and belief?
The right to freedom of religion and belief includes the right to hold a belief, the right to change one’s religion or belief, the right to express one’s religion or belief, and the right not to hold a belief. The right to believe is not limited to religion. It also includes atheistic beliefs, as well as matters of conscience such as pacifism and conscientious objection to military service.”

[Chapter 9: The right to freedom of religion and belief]

Evidence that these sections of the Bill of Rights Act were intended to include non-religious beliefs such as atheism, agnosticism, humanism, secularism, etc and place them on par can be found in this document put out by the Ministry of Justice, “The Guidelines on the New Zealand Bill of Rights Act 1990: A Guide to the Rights and Freedoms in the Bill of Rights Act for the Public Sector:”

Further discussion on the meaning of section 13
The protection in section 13 is far-reaching. The section is likely to include “freedom of thought on all matters, personal conviction and the commitment to religion or belief“. The freedom extends to thoughts and beliefs of any kind including theistic, non-theistic and atheistic beliefs.

…

How should I interpret the term ‘religion or belief’?
The United Nations Human Rights Committee states the terms “religion” and “belief” should be interpreted broadly to include theistic, non-theistic and atheistic beliefs. The protection in section 15 extends beyond obligatory doctrine and applies to all religions and beliefs, even those without the established doctrines and customs of traditional religions.

Now given the NZARH’s principle 2) that no one view should be privileged over another, all views should be treated equally, this is all perfectly compatible but this reading of the Bill of Rights Act (and the International Bill of Rights) conflicts radically with the NZARH principle 1). It also radically conflicts with the vision for New Zealand that the NZARH have clearly held out as aspirational in the six examples they identify in their document as areas of public life which need improving on. Their proposed solutions for the examples they have set out clearly demonstrate a call for one view (theirs) to be significantly privileged over another.

The most telling is their section on education which I will now briefly fisk:

“The New Zealand public education system was set up to be secular and still is in most cases.”

The education system must inculcate one type of viewpoint alone: secular views and not non-secular views.

“There are however too many cases where those running a school try to force their own beliefs on their students through religious observance.”

But it is ok for secular beliefs to be forced on students through the inculcation of unchallenged secular viewpoints in the classroom.

“The Education Act (1964) has incorporated a loophole to allow primary schools to “close” sections of the school for religious instruction where outside volunteers indoctrinate the children whose parents haven’t opted them out.”

and

“The NZARH strongly believes that public education should be free, secular and available equally to all children.”

The teaching of secular viewpoints are to be taught at all times, to all children – teachers can teach no other viewpoint. Religion can only figure if the school is willing to close and volunteers are available and parents choose to not opt students out. This is an extremely asymmetrical treatment of two types of viewpoints, secular viewpoints and religious viewpoints but even this asymmetry is not good enough for the NZARH, they want to tip the weight even further towards the bias of secularism, they strongly believe that all state funded education should be secular. Any citizen who wishes for an alternative to their view must pay more than citizens who do not.

As Paul Rishworth, Professor and outgoing Dean of Law at the University of Auckland, an expert in New Zealand’s Rights and Freedoms law, stated to the Human Rights Commission’s Diversity Forum on Religion in Schools:

Though I am perhaps the only person in the world who has not read Harry Potter, the point is well made in an extract from the seventh and last volume (p. 210):

“What’s Voldemort planning for Hogwarts?” she [Hermione] asked Lupin. “Attendance is now compulsory for every young witch and wizard,” he replied. “That was announced yesterday. It’s a change, because it was never obligatory before. Of course, nearly every witch and wizard in Britain has been educated at Hogwarts, but their parents had the right to teach them at home or send them abroad if they preferred. This way, Voldemort will have the whole Wizarding population under his eye from a young age.”

“One good way to end a conversation – or start an argument – is to tell a group of well educated professionals that you hold a political position (preferably a controversial one such as being against abortion or pornography) because it is required by your understanding of God’s will. In the unlikely event that anyone hangs around to talk with you about it, chances are that you will be challenged on the ground that you are intent on imposing your religious beliefs on other people. And in contemporary political and legal culture, nothing is worse.”[1]

Carter is referring to the separationist understanding of religion and public life, the idea that in a contemporary pluralistic society significant restraint must be put on the political role of religious reasons. This restraint is negative; when a functionary deliberates over a proposed policy it is not justified for that functionary to decide to support or oppose that policy on grounds derived from religion. A corollary of this is that citizens should not try to influence public policy by appealing to religious reasons. Separationists argue that the public policy of a pluralistic society must be able to be justified by a plausible secular justification in order for it to be just to all. Religious beliefs, while utilised and followed in private, should be kept separate from public policy debates, the administration of public institutions and the deliberation of public functionaries.

Dominant advocates of this view include philosophers John Rawls, Robert Audi, Gerald Gaus and Jürgen Habermas. In “Religion as a Conversation-Stopper” Richard Rorty described separationism as:

“the happy, Jeffersonian compromise that the Enlightenment reached with the religious. This compromise consists in privatizing religion — keeping it out of … “the public square,” making it seem bad taste to bring religion into discussions of public policy.”[2]

Advocates for religious restraint typically claim that it need not be codified. It is simply a moral requirement which applies to all citizens regardless of their role within society — some form of censure rather than legal stricture is what is suggested. This is what Rorty means when he refers to it being “bad taste” to bring religion into the public square. Notwithstanding the separationists stated intention, in my thesis I will argue that this call for religious restraint is not simply theoretical philosophy, which is present in society only by way of self-imposed moral restraint or the sort of peer-pressure Carter’s quote alluded to. I will argue that the norm of religious restraint is increasingly present in our public policy and jurisprudence.

Rorty alluded to Jefferson’s famous “Wall of Separation Letter” where Jefferson set out his understanding as to how the First Amendment’s Establishment Clause should be interpreted. Tellingly, this suggests a link between the separationist philosophy and the way the religious freedom components of Bills of Rights are interpreted. These components address the very same questions I opened with; how should religion fit into a just pluralistic society? The purported answers are commonly given in slogans, “freedom of religion”, “free exercise”, “freedom to manifest one’s religion” and statements declaring the separation of church and state, opposing Establishment and so on. I say ‘slogans’ because such clauses are typically light on detail; fleshing out what they mean and how they are to apply at a practical levels, to specific cases falls to the commentators, the lawyers who propose particular interpretations in their submissions and ultimately the judiciary. The resulting body of jurisprudence reflects the perspectives of the dominant views in society.

Consider the US Supreme Court’s three leading Establishment Clause precedents: Lemon, Endorsement and Coercion. The first of the three parts of the Lemon Test requires public policy to have a valid secular purpose, a non-religious rationale must be offered for all state actions. The Endorsement Test prohibits the state from “endorsing” religion over irreligion. The Coercion Test provides that the state must not coerce religious practice; not only must it not be required, but in Lee v Weisman the application was shifted to what Justice Scalia, in his dissent, termed a “test of psychological coercion”. The US Supreme Court essentially took the view that being one of few (or the only one) to opt out of a religious practice in a public setting was considered a form of state coercion by peer pressure. I will argue that in each of the dominant Establishment tests, a requirement for the state to place a restraint on religion or for religion to be kept from public life can be seen. This stricture affects public policy and is essentially separationism in codified form.

Despite its current orthodoxy, separationism has its critics, particularly in philosophy and law. These critics collectively hold that although separationism claims to operate impartially, it, in fact, gives public hegemony to secular perspectives. Critics argue that the call for religious restraint is unjust for religious citizens as it requires conformity to secularism and thus privileges secularism over religion. Philip Quinn observes;

These principles impose burdens on religious people that [the separationist] nowhere suggests imposing on nonreligious people. … [The separationist] does not propose that nonreligious people must be sufficiently motivated by adequate religious reason for their advocacy or support of restrictive laws or policies. The lack of symmetry is striking.[3]

Christopher Eberle, Terence Cuneo agree there is a clear asymmetry in the way religious beliefs are treated by the state compared with secular beliefs. They question why religious believers, who participate in public, are required to bracket beliefs they hold as both true, important and relevant to the issue; Stephen Carter labels this “[t]he separation of church and self.”[4] Nicholas Wolterstorff argues that separationism violates the equal freedom component of a pluralistic democratic society, “Using their religious convictions in making their decisions and conducting their debates on political issues is part of what constitutes conducting their lives as they see fit.”[5][Emphasis added] Philip Devine point out that “Freedom of religion is not only the freedom to advocate religious (or irreligious) ideas; it is the freedom to form, sustain, participate in, and transmit, forms of community life”.[6] Yet separationists maintain that some form of religious restraint is not only in accord with the notion of liberal democracy but essential to it. As Rorty put it, “we shall not be able to keep a democratic political community going unless the religious believers remain willing to trade privatization for a guarantee of religious liberty.”[7]

The dominant tests seek to apply a reading of Jefferson’s “Wall of Separation Letter”; but in an article in First Things entitled “Establishing Free Exercise,” Vincent Phillip Muñoz argues that James Madison, the author of the First Amendment and a noted authority on the subject, did not intend this;

“When editing the religious freedom amendment to Virginia’s state Bill of Rights, Madison proposed the following:

‘That religion or the duty we owe to our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not violence or compulsion, all men are equally entitled to the full and free exercise of it accord[in]g to the dictates of conscience; and therefore that no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges, nor subjected to any penalties or disabilities.’

Madison interpreted “free exercise” to mean no privileges and no penalties on account of religion.”[8][Emphasis added]

Munoz argues that Madison’s “no privileges, no penalties” test could unify “the no-establishment and free exercise provisions into a coherent whole that recognizes the legitimate concerns of both sides of the debate while, at the same time, respecting our nation’s founding heritage.”[9]

“no privileges, no penalties” would not require forays into students’ psychological feelings. Judges would not need to inquire if school children feel like “insiders” or “outsiders,” or if a child might perceive the state to be “endorsing” religion, which are necessarily subjective judgments. Courts would only need to ask if, on account of religion, religious citizens as such were granted a material benefit or if nonreligious citizens were subject to a penalty like a fine or imprisonment. For Newdow, the relevant question is: Was Michael Newdow’s daughter subject to some form of disciplinary action because she would not say the Pledge? Since she was not, the Pledge stands.”[10]

The “no privileges, no penalties” test upholds freedom of religion and separation of church and state by essentially permitting religion to have a place in public life as long as those who engage in public religious conduct do not gain a privilege for doing so and those who do not wish to participate are both free to opt out and are not penalised for doing so. Interestingly, the New Zealand jurisdiction’s approach, within the limited cases to date – where as long as one can ‘opt out’ of a religious practice there is no coercion, has some affinity or parallel with a “no privileges, no penalties” approach. Munoz’s appropriation of Madison has the potential to be a just way forward in both the debate within philosophy and in law. It does not have the privatising effect on religion that the dominant tests do, neither does it have the asymmetry.

I have this week been accepted into the University of Auckland’s LLM program. In 2011 I will start my studies towards a Masters of Law by thesis-only. This blog post is part of the proposal I have submitted to write it on – it may change as my supervisors and I work things out but this is the gist of what is in my head. I’d love to hear your thoughts – it will help get me thinking on where I am going with this!

RELATED POSTS:
Contra Mundum: Secularism and Public Life
Religious Restraint and Public Policy: Part I
Religious Restraint and Public Policy: Part II
Religious Restraint and Public Policy: Part III
Religious Restraint and Public Policy: Part IV
Religious Restraint and Public Policy: Part V
Religious Restraint and Public Policy: Part VI

[1] Stephen Carter The Culture of Disbelief: How American Law and Politics Trivialise Religious Devotion (1993) 23-24.
[2] Richard Rorty “Religion as a Conversation-Stopper” (1994) 3:1 Common Knowledge 1, 2.
[3] Philip Quinn “Religion in the Public Square: The Place of Religious Convictions in Political Debate” (2000) 60:2 Philosophy and Phenomenological Research 487 (book review).
[4] Carter, above n 1, 1.
[5] Nicholas Wolterstorff “The Role of Religion in Decision and Discussion of Political Issues” in Nicholas Wolterstorff & Robert Audi (eds) Religion in the Public Square: The Place of Religious Convictions in Political Debate (1997) 77.
[6] Philip Devine We: A Study in Social and Political Philosophy, Ch 10 accessed 10 December 2010.
[7] Rorty, above n 2, 3.
[8] Vincent Phillip Muñoz “Establishing Free Exercise” First Things (January 2004) 139-142, 141.
[9] Ibid 139.
[10] Ibid 142.

Middleton Grange is a school based in Christchurch. The school’s aim’s, as stated on its website, show that its first aim as a educational facility is to “Help pupils know and understand God and His ways and respond to Him in obedience, love and service.” The website further states,

The school rests on a Reformed and Evangelical interpretation of Scripture which informs all aspects of governance and management. The Christian Schools’ Trust is responsible for safeguarding the Special Character of the school.

Now it should be no surprise to any educated person that a reformed evangelical interpretation of scripture usually includes, among other things, the contention that sex between people of the same sex violates God’s commands. Nor should it be a surprise that, given the school’s stated purpose is to inculcate these beliefs, it will not hire or retain people whose example or teaching contradicts this purpose.

The only question that really needs to be asked then is whether it should be legal for religious groups like this to set up such schools and teach these things and engage in these sorts of hiring practices. Should reformed evangelical Christianity be a tolerated religion? The alternative is, of course, to ban such schools, force parents to send their children to schools that will teach that their parents religious beliefs are false  - essentially not allow adults to propagate these values to their children. This is known as religious persecution.

In fact by ruling that the school must hire/retain staff whose actions are inconsistent with the schools purpose and then requiring the staff to undergo “human rights education.” the Human Rights Commission (HRC) goes one step further. It states that not only must such schools not exist but it maintains that the adults running them must undergo compulsory re-education into the secular liberal way of thinking. Am I the only one who finds this sort of thing a tad draconian?

Mr Young, however, seems to think otherwise, he states,

Frankly, I’m surprised that this sort of collision between lesbian and gay teachers and backward fundamentalist enclaves has taken so long to materialise. I suspect that it’s because we shun such neurotic and hermetically sealed enclaves unless there is good reason to do otherwise

Apparently the biggest problem in all this is that this sort of religious persecution and re-education has not happened sooner. As to why such schools should be persecuted, Young gives three reasons.

First because it is a “malignant Christchurch fundamentalist” school. In other words, Young considers this school to expound fundamentalism and he considers such a religion to be “malignant.” This really is not the issue, the issue is whether the state should persecute such religious groups and subject the people within them to compulsory re-education. There are many religious perspectives I disagree with, some I find highly offensive yet this does not mean that the state should intervene in this way.

Young’s second reason is,

Founded in 1964, it was host to Graham Capill, Christian Heritage Party leader. His dad Don was Vice Principal until the eighties. I was a one-time inmate there. It served as a nexus for the abortive campaign against homosexual law reform in the mid-eighties.

There are three reasons here (a) Young attended the school and did not like it, (b) a political leader Young is known to immensely dislike and who was convicted for sexual molestation once attended the school and this man’s father was once Principal; and, (c) the school promoted political views at odds with the secular liberal mainstream on issues like abortion and homosexuality.

It is hard to see how any of these reasons justify the HRC’s actions. Is Young saying any school he does not like should be legally punished? Is Craig suggesting that if an old boy of a school is convicted of a crime years after leaving that the whole school should be held responsible? Does Young support a return to collective and vicarious punishments perhaps?

The last reason Young gave is perhaps the most telling; schools should be subject to legal sanction if their politics are disagreeable. Again, am I the only one who finds it odd that this sort of crap is proposed by one of the voices for “tolerance” and “respect for diversity”?

Craig then gives the usual red herrings; he states “Should it end there? Well, no. If Middleton Grange refuses to employ lesbian and gay teachers, then what about issues like LGBT suicide prevention? Or homophobic bullying?” While I agree that bullying of any human being is wrong (it being assault) and suicide of any person is tragic, the reasoning here lacks cogency. Suppose a fundamentalist Christian was severely bullied at school, the kids picked on him because they considered him to be an intolerant bigot or suppose that his refusal to have pre-marital sex or drink alcohol made him a social outcast? I take it that Young would support fundamentalist teachers coming into this school and teaching a fundamentalist interpretation of the bible to their students so as to re-educate those bullying him? Perhaps the HRC should force the management of any secular school that does not do this to attend church…

The only remotely sensible comment Craig makes is a rhetorical question, “Should fundamentalist private schools be penalised by withheld operational funding if they refuse to obey mainstream New Zealand anti-discrimination laws?” Indeed that is the core question. Should private religious schools be allowed to teach and freely exercise their religion? Some segments of the gay rights movement and their supporters need to be honest and just outright admit that they support religious persecution instead of talking about “tolerance” and “the celebration of diversity” – values they clearly do not believe in.

UPDATED BY MADELEINE

In the comments below Joel, a blogger from the US, writes:

There is no liberty in New Zealand, I take it, nor equality.

And what about the human rights violated against the Christian school?

I have chosen to respond this here as originally Matt and I had toyed with looking at this in this post anyway and so I don’t want it getting lost in the comments, which I anticipate will be prolific in number (just a hunch).

New Zealand does not have an entrenched constitution, its Bill of Rights is a simple statute which is ultimately subordinate to any other statute it clashes with, see section 4:

4.  Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—

(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or

(b) Decline to apply any provision of the enactment—

by reason only that the provision is inconsistent with any provision of this Bill of Rights.

Although, to be fair, for any clash the clashing rule, law or policy must be read in the way most conducive to it being consistent with the Bill of Rights, see section 6:

6. Interpretation consistent with Bill of Rights to be preferred
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

If a consistent reading cannot be achieved then the courts will either deem a policy inconsistent with the Bill of Rights or deem it a justified limitation,

5. Justified limitations
Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The reality is that due to the fact the courts cannot strike statutes down or refuse to apply them and that there are no penalties for Bill of Rights breaches either beyond the stigma of being in breach of it, which only works if society values the right in question, if it is an unpopular group or cause being violated who cares right?

So that is the context freedom of religion sits in in New Zealand, which is covered in the section on democratic and civil rights:

13. Freedom of thought, conscience, and religion
Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

14. Freedom of expression
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

15. Manifestation of religion and belief
Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

Now at a glance at these sections our US friends must be wondering how the tale Matt told above and the story in the newspaper article he linked to could happen; it appears that New Zealand requires the state to allow its citizens and private organisations the right to form any belief they like, impart it and act on it.

The reason you are momentarily lulled into this false sense of reality is because you have not factored in the Human Rights Act. Remember earlier when I said the Bill of Rights is subject to other laws? Let’s take a look at section 22, I have highlighted the key bits to take note of in italics:

22. Employment
(1) Where an applicant for employment or an employee is qualified for work of any description, it shall be unlawful for an employer, or any person acting or purporting to act on behalf of an employer,—

(a) To refuse or omit to employ the applicant on work of that description which is available; or

(b) To offer or afford the applicant or the employee less favourable terms of employment, conditions of work, superannuation or other fringe benefits, and opportunities for training, promotion, and transfer than are made available to applicants or employees of the same or substantially similar capabilities employed in the same or substantially similar circumstances on work of that description; or

(c) To terminate the employment of the employee, or subject the employee to any detriment, in circumstances in which the employment of other employees employed on work of that description would not be terminated, or in which other employees employed on work of that description would not be subjected to such detriment; or

(d) To retire the employee, or to require or cause the employee to retire or resign,—

by reason of any of the prohibited grounds of discrimination.

Let’s take a look at the “prohibited grounds of discrimination” shall we? The definitions section states “prohibited ground of discrimination has the meaning given to it by section 21″. Section 21 is long so I have only included the relevant bits for our purposes,

21 Prohibited grounds of discrimination

(1) For the purposes of this Act, the prohibited grounds of discrimination are—

(m) Sexual orientation, which means a heterosexual, homosexual, lesbian, or bisexual orientation.

So there you have it, freedom of thought, conscience, religion, expression and the manifestation of those beliefs are trumped by the Human Rights Act (and the Education Act which permits private schools to educate and manage themselves along the lines of the special character of the school).

Joel is right, New Zealand’s commitment to liberty and equality is lacking as is respect for freedom of religion.

As a holiday weekend that coincides with the most significant festival on the Christian calendar, Easter, concludes we should reflect on the freedom of religion we have in this nation. The Human Rights Commission is calling for submissions on a draft statement on freedom of religion and belief that includes the statement:

‘New Zealand has no official or established religion.’

Race relations conciliator Joris de Bres has publicly said that New Zealand’s absence of a state religion is a statement of fact[1]. Former Prime Minister Helen Clark was also quoted as saying there is no state religion, there will be no state religion[2]. These comments may be a surprise to those Kiwis who thought rugby has the role of a national religion!

Given the above comments by influential New Zealanders and the tax payer supported Human Rights Commission it must be clearly correct legally to say that New Zealand has no official religion.

Well, actually, no, it is not.

Does New Zealand Have an Official Religion?
An important distinction needs to be made at the outset. A state with an established religion is one in which a particular religion or church is effectively an arm of the state, and the state identifies with a particular religion. A state with an official religion gives special recognition or privileges to a religion. While an established religion and an official religion are usually found together, that is not always the case.

One of the most (if not the most) important offices in New Zealand is that of our head of state. New Zealand is a constitutional monarchy and the head of state in New Zealand is our monarch, currently Queen Elizabeth II.

The Accession Declaration Act 1910 provides New Zealand’s head of state’s oath of office’ This accession declaration states:

“I … do solemnly and sincerely in the presence of God profess, testify, and declare that I am a faithful Protestant, and that I will, according to the true intent of the enactments which secure the Protestant succession to the Throne of my Realm, uphold and maintain the said enactments to the best of my powers according to law.”

The accession declaration provides that the Queen must claim to be a Protestant. This is inconsistent with the notion that New Zealand has no official religion. It also refers to other laws which “secure the Protestant succession.” These other laws are the Bill of Rights 1688[3] and The Act of Settlement 1700[4]. All these acts of parliament were re-affirmed as part of the law of New Zealand by our parliament as recently as 1988 in the Imperial Laws Application Act (which, curiously given her comments above, Helen Clark voted in favour of passing[5]). The other laws that secure the Protestant succession are intended to ensure that the King or Queen of New Zealand is always a Protestant Christian. These laws are, incidentally, identical to the current law in the now multi-religious United Kingdom. Where New Zealand differs from the United Kingdom is that neither the Anglican nor Presbyterian churches are established.

The legal requirement that New Zealand’s head of state must be a Protestant Christian means that in our constitutional form at least we are a Christian nation. Technically our official religion is Anglicanism[6]. Having an official religion of course in no way requires New Zealanders to profess a particular religion. But does an Official Religion pose a threat to Religious Minorities? To answer this question lets refer to some overseas examples.

Having no official religion and a secular state has been no guarantee that freedom of religion and human rights generally will be respected in North Korea, Cuba and the People’s Republic of China, all of which have woeful human rights records.

By contrast the Lutheran church is the established church in Norway (there is even a minister of church affairs). It would be fair to say that Norway is not known for its suppression of freedom of religion or for having a poor human rights record.

Likewise, the established Anglican Church in England and the Presbyterian Church in Scotland has not led to a lack of freedom of religion. Indeed the tolerant Anglican Church is preferable for religious minorities to intolerant secularism.

It may come as a surprise to learn that there are leading Muslim and Jewish scholars who are actually against disestablishing the Anglican Church in the United Kingdom. To paraphrase their argument, an established but tolerant Anglican Church is preferable to a nation where all reference to the religious or sacred is ruthlessly excluded from the public domain[7].

The intolerant secularism rightly feared by religious minorities has been evident in France recently. France has already banned the Islamic headscarf and outward wearing of the crucifix, and other religious symbols, in state schools[8] and is considering banning the wearing of a burqa altogether, moves which are causing public discord in France[9].

Having an official religion is not necessarily any threat to freedom of religion, and may actually be more beneficial to religious minorities than aggressive secularism. The advancement of the rights of religious minorities and multi-culturalism should not be mis-used as a Trojan horse to advance intolerant secularism.

Conclusion
As a nation we should celebrate our tolerant Christian tradition, not attempt to falsely deny the legal fact that Christianity is a part of our national constitution. Ironically denials that Christianity is our official religion are playing down the Christian religious tradition that bought about the very religious freedom and tolerance the Human Rights Commission is attempting to promote.

We have nothing to fear and will gain by having a National Statement on Religious Diversity in New Zealand and a Draft Statement on Freedom of Religion and Belief that acknowledge the existence of New Zealand’s official religion rather than willfully ignore it.

[1] “There’s No State Religion –De Bres” New Zealand Herald 19 February 2007.
[2] As above.
[3] The relevant section of Bill of Rights 1688 provides:

And whereas it hath beene found by experience that it is inconsistent with the safety and welfaire of this Protestant Kingdome to be governed by a Popish Prince or by and King or Queene marrying a Papist the said Lords Spirituall and Temporall and Commons doe further pray that it may be enacted that all and every person and persons that is are or shall be reconciled to or shall hold communion with the See or Church of Rome or shall professe the Popish religion or shall marry a Papist shall be excluded and be for ever uncapeable to inherit possesse or enjoy the Crowne and Government of this Realme.

[4] Section 3 of the Act of Settlement 1700 states (inter alia) “that whosoever shall hereafter come to the possession of this Crown shall joyn in Communion with the Church of England.”
[5] Hansard, 1988 (4^th Labour government 1984-1990).
[6] The Head of State is required to be an Anglican – refer to footnote 4.
[7] Tariq Modood “(Muslim) Establishment, Multiculturalism and British Citizenship,” Political Quarterly 65 (1994) pp.53-73; Rabbi Jonathan Sacks, Ibid at 63-64; also Jonathan Sacks, The Persistence of Faith: Morality and Society in a Secular Age, London, 1991, cited in R Ahdar and J Stenhous et al God and Government The New Zealand Experience, University of Otago Press 2000.
[8] “Party Pushes Burqa Law Despite Public Discord” New Zealand Herald 10 January 2010.
[9] Ibid.

[Wikipedia have a chart showing which countries Queen Elizabeth II is currently head of state of.]

… If teaching that homosexual conduct is wrong is akin to racism or propagation of apartheid, then the aforementioned religious organisations are the moral equivalent of the Ku Klux Klan. Those who propagate such arguments need to reflect on the implications of what they affirm. Imagine a society where the local synagogue or Mosque is treated as though it were the local Klan headquarters. Or where Muslim students are perceived and treated the way we currently relate to white supremacists. It is not difficult to see that the widespread dissemination and acceptance of this argument would lead to an atmosphere of pervasive religious intolerance – such intolerance is the very antithesis to what many of those protesters ostensibly claim to stand for.

The solution to intolerance is tolerance. Tolerance of those ideas you may fervently disagree with and recognition of another’s right to freely hold and express them. Tolerance requires one to respond to disagreement with rational persuasion, not vilification. This cuts both ways.

I was widely vilified and ridiculed for my comments and denounced as hate filled and bigoted. It is interesting to compare what I said with the comments of Chai Feldblum, the Georgetown University law professor nominated by Obama to serve on the Equal Employment Opportunity Commission.

Just as we do not tolerate private racial beliefs that adversely affect African-Americans in the commercial arena, even if such beliefs are based on religious views, we should similarly not tolerate private beliefs about sexual orientation and gender identity that adversely affect LGBT [lesbian, gay, bisexual, and transgender] people,” the Georgetown law professor argued…

For those who believe that a homosexual or bisexual orientation is not morally neutral, and that an individual who acts on his or her homosexual orientation is acting in a sinful or harmful manner (to himself or herself and to others), it is problematic when the government passes a law that gives such individuals equal access to all societal institutions.

Of course those religions that believe homosexual conduct is sinful include Roman Catholicism, Eastern Orthodoxy, evangelical Protestantism, many neo-orthodox Protestants, Islam, Orthodox Jews, Mormons, Jehovah’s Witness’s, Seventh Day Adventists and so on. So presumably, if we are to take Feldblum at her word, none of these groups should be tolerated in Obama’s society and all should be denied equal access to societal institutions.

B          The Dangers of Religion

One explanation as to why this asymmetry is applied to religious reasons is offered by Quinn; “Some people fear that religious argument is apt to be dangerously divisive.”[82] Audi concurs, “[religious reasons] are special in relation to liberal democracy even by contrast with [secular reasons] … that are not accessible to any normal adult.” [83] He gives five “salient points” to support his case, all based on the idea that religious reasons are dangerous to society. [84]

First Audi claims that religious reasons are often “directly or indirectly taken to represent an infallible authority”.[85] The second point is that religious people often “believe that anyone who does not identify with [the ultimate divine source] is forsaken, damned, or in some other way fundamentally deficient.”[86] Third, “religious reasons often dictate practices that are distinctively religious in content (such as prayer) or intent (such as preserving the fetus on the ground that it is a gift from God)”.[87] Fourth, with many religious leaders, especially leaders of cults, there is a risk that they are “cloaking their prejudices with absolute authority.”[88] Finally, Audi contends that religious people tend to be “highly and stubbornly passionate about the importance of everyone’s acting in accordance with religious reasons”.[89]

Again these features are not unique to religion. As McGrew argues, all these features can be equally present in secular people and movements;[90]

It is sadly amusing to read this list and to consider how well its negative aspects apply to secular people and movements. Communism, for example, is as fanatical as any conventional religion and demands group-think on an unrivaled scale. Contemporary feminism aspires to control worldview, language, and behavior. The New Atheists are exceedingly passionate about making people behave in accordance with their own beliefs (making sure children are taught Darwinism as unquestioned fact, for example), and Richard Dawkins and P.Z. Myers have an inflated sense of self-importance that would make many a Christian megachurch pastor look modest by comparison. Dawkins is infamous for having repeatedly and insistently called a religious upbringing “child abuse,” and while Dawkins has shied away from the obvious legal implications of this accusation, not everyone who thinks as he does is so cautious. Other secularists, self-styled “comprehensive liberals,” have expressly advocated the use of the power of the state to monitor and limit parents’ ability to transmit their religion to their children (see Hitchcock, 2004). As for the vicious condemnation of children who do not fully conform to their parents’ secular ideology, a good example of this phenomenon is the strange story of Rebecca Walker, daughter of feminist icon Alice Walker. And, on the other hand, there are plenty of religious people who do not display such negative characteristics. It simply does not appear to be true that we reduce fanaticism, self-important leadership, attempts at thought control, and the like in society by reducing the role of religion in public life.

McGrew suggests there are secular analogues of even Audi’s third reason, that religious reasons often dictate practices that are distinctively religious in content or intent;[91]

It would certainly be undesirable if people were being coerced to pray to any God, even the true God. But then, secular ideology can and sometimes does demand that we do homage to itself—in the form of changing our language to make it politically correct, for example, or treating two men or two women as “married” in all of our business activities. The problem with forcing people to pray to the true God is that the true God is not truly worshiped in that fashion. The problem with forcing people to pray to false gods and to pledge allegiance to false ideologies is that they are false. You will not avoid the problem of the coercion of conscience by limiting the role of religion in public life. You will only shift that problem so that the unreasonable coercion comes from some quarters rather than others.

Audi’s first point invites a parallel rejoinder. He defines infallible propositions as those that are “impossible that they be both endorsed or accepted by God and false”.[92] On this definition of infallibility every proposition is infallible. God, as Audi understands him, is omniscient. God only believes true propositions. It follows then that any proposition God accepts cannot be false; this is true whether it is a religious proposition or a secular one.

Audi’s main concern is that a person who believes an action is commanded by God believes that an omniscient, infallible being has endorsed that action. Appeals to purported divine commands are therefore problematic. However, some secular ethical theories face precisely the same problem.  One of the most influential secular theories, endorsed by ethicists as diverse as David Hume, Adam Smith, Henry Sidgwick, Richard Hare, Roderick Firth, John Stuart Mill, Tom Regan, Richard Brandt, Immanuel Kant and others, is the ideal observer theory. On this theory an action is wrong, if and only if, it would be proscribed by an ideal observer, by a person who is perfectly impartial and perfectly informed on all the relevant facts. A hypothetical ideal observer is no less infallible than religious believers take God to be. It is hard to see how invoking religious reasons is not acceptable but invoking the secular reasons is.[93]

C         Argument from Religious Wars
A more forcible danger of religion argument invokes the spectre of religious wars. Audi states “if religious considerations are not appropriately balanced with secular ones in matters of coercion, there is a special problem: a clash of Gods vying for social control. Such uncompromising absolutes easily lead to destruction and death”[94] Wolterstorff articulates the concern;[95]

One reason which liberals have offered ever since the emergence of liberalism in the seventeenth century is that it’s just too dangerous to let religious people debate political issues outside of their own confessional circles, and to act politically, on the basis of their religious views. The only way to forestall religious wars is to get people to stop invoking God and to stop invoking canonical scriptures when arguing and determining politics.

The adequacy of this argument can be contested on several grounds. First, Quinn, Greenwald and Wolterstorff note that while it was true of 17^th century England, “social peace did depend on getting citizens to stop invoking God, canonical scriptures, and religious authorities when discussing politics in public”,[96] it is not plausible that such a danger exists in 21^st century Western countries like New Zealand, Australia and the United States. Quinn notes, “current political debate in the United States exhibits failure to comply with Audi’s principles on a massive scale and yet shows no tendency to reignite the Wars of Religion of the early modern era.”[97]

Wolterstorff makes two other related points. He notes that “the slaughter, torture, and generalised brutality of our century has mainly been conducted in the name of one or another secular cause–nationalism of many sorts, communism, fascism, patriotisms of various kinds, economic hegemony.”[98] Second, he notes that “many of the social movements in the modern world that have moved societies in the direction of liberal democracy have been deeply and explicitly religious in their orientation”[99] He cites the abolitionist movement, the civil rights movement and movements resisting communism, facism and apartheid as examples. The invocation of religious reasons risks war and civil strife when certain types of religious reasons are invoked in particular socio-political contexts. This is equally true of secular reasons; certain types of secular reasons can be dangerously incendiary in particular socio-political contexts. There seems no basis for an asymmetry between secular and religious reasons on these grounds.

Eberle and Cuneo add that 17^th century “confessional conflict … [was] typically rooted in egregious violations of the right to religious freedom, when, for example, people are jailed, tortured, or otherwise abused because of their religious commitments.”[100] Given that few, if any, who appeal to religious reasons advocate such violations or could plausibly bring them about, such appeals are unlikely to have tumultuous effects.

In terms of protecting freedom of religion from these kinds of abuses it is not obvious that secular reasons fare any better, “secularists have a long history of hostility to the right to religious freedom and, presumably, that hostility isn’t at all grounded in religious considerations”.[101] Moreover when[102]

religious believers have employed coercive power to violate the right to religious freedom, they themselves rarely have done so in a way that violates the DRR … when such rights have been violated, the justifications offered, even by religious believers, appeal to alleged requirements for social order, such as the need for uniformity of belief on basic normative issues. One theological apologist for religious repression, for example, writes this: ‘The king punishes heretics as enemies, as extremely wicked rebels, who endanger the peace of the kingdom, which cannot be maintained without the unity of the faith. That is why they are burnt in Spain’.

Similarly, Aquinas, in a Rawlsian vein, famously justified the suppression of heretics by appealing to the accepted political culture of his day which required that counterfeiters be executed.

Consequently, the religious wars of the 17^th century were caused, not by the appeal to religious reasons per se but rather by the violation of religious freedom; this violation has often been defended on secular grounds. It is unlikely that the DRR provides a bulwark against such abuses.

III        Conclusion

On examining the DRR it appears that there is no good reason for singling out religious reasons for a particular restraint and limiting discourse to secular reasons. The grounds offered for doing so, the golden rule, the epistemic accessibility of religious premises, the dangers of religion and the potential for religious wars all apply with equal force to secular beliefs. Hence, the restriction appears arbitrary. Moreover, as applied, the DRR is often incoherent and if applied consistently would render most substantive coercive laws unjustified. The current practice of equating secularism with neutrality is flawed.

As Carter eloquently puts it,[103]

What is needed is not a requirement that the religiously devout choose a form of dialogue that liberalism accepts, but that liberalism develop a politics that accepts whatever form of dialogue a member of the public offers. Epistemic diversity, like diversity of other kinds, should be cherished, not ignored, and certainly not abolished. What is needed, then, is a willingness to listen, not because the speaker has the right voice but because the speaker has the right to speak. Moreover, the willingness to listen must hold out the possibility that the speaker is saying something worth listening to; to do less is to trivialize the forces that shape the moral convictions of tens of millions of Americans.

This series was written as a supervised research paper in pursuit of my LLB.

[82] Phillip Quinn “Political Liberalisms and Their Exclusions of the Religious” (1995) 69:2 Proceedings and Addresses of the American Philosophical Association 35, 143.
[83] Robert Audi “Liberal Democracy and the Place of Religion in Politics” in Nicholas Wolterstorff & Robert Audi (eds) Religion in the Public Square: The Place of Religious Convictions in Political Debate (Rowman and Littlefield Publishers Inc, Lanham Md, 1997) 1-66, 31.
[84] Ibid 31-32.
[85] Ibid 31.
[86] Ibid.
[87] Ibid.
[88] Ibid 31-32.
[89] Ibid 32.
[90] Lydia McGrew “The Irrational Faith of the Naked Public Square” (2008) 1 The Christendom Review (at 2 October 2009).
[91] Ibid.
[92] Audi, above n83, 63.
[93] I am grateful to Matthew Flannagan for the development of this point.
[94] Robert Audi Religious Commitment and Secular Reason (Cambridge University Press, New York, 2000) 103.
[95] Nicholas Wolterstorff “Why we should Reject what Liberalism tells us About Speaking and Acting in Public for Religious Reasons” in Paul Weithman (ed) Religion and Contemporary Liberalism (University of Notre Dame Press, Notre Dame IN, 1997) 167.
[96] Nicholas Wolterstorff “The Role of Religion in Decision and Discussion of Political Issues” in Nicholas Wolterstorff & Robert Audi (eds) Religion in the Public Square: The Place of Religious Convictions in Political Debate (Rowman and Littlefield Publishers Inc, Lanham Md, 1997) 67-120, 79.
[97] Quinn, above n82, 39.
[98] Wolterstorff, above n96, 80.
[99] Christopher J. Eberle and Terence Cuneo “Religion and Political Theory” (2008) Stanford Encyclopedia of Philosophy (at 9 August 2009).
[100] Ibid.
[101] Ibid.
[102] Ibid.
[103] Stephen Carter The Culture of Disbelief: How American Law and Politics Trivialise Religious Devotion (Basic Books, New York, 1993) 230.

RELATED POSTS:
Religious Restraint and Public Policy: Part I
Religious Restraint and Public Policy: Part II
Religious Restraint and Public Policy: Part III
Religious Restraint and Public Policy: Part IV
Religious Restraint and Public Policy: Part V

(ii)        Are religious reasons ever subject to open justification?

Gaus might rejoin that commitments to freedom of religion can be defended in terms of open justification. Consider some of the cases that divide society that I listed earlier; at least one side in such debates is mistaken, has made an error in rejecting the purported open justification presented to them. This is entirely possible. It could also be true of Qutb; perhaps he mistakenly rejected a premise that, given other things he believes, he should have embraced.

While this rejoinder would avoid the thinness objection, the problem is that it would no longer be clear or obvious, in the absence of substantive argument, that any viewpoint could be openly justified. Neither side in the above debates is likely to concede its position as the one in error. Cuneo and Eberle note the problem;[66]

Were we to ask Qutb whether he would have reasons to support laws that protect a robust right to religious freedom if he were adequately informed and reasonable, surely he would say: no. Moreover, he would claim that his compatriots would reject the liberal protection of such a right if they were adequately informed about the divine authorship of the Quran and the proper rules of its interpretation. While Qutb’s say-so doesn’t settle the issue of who would believe what in improved conditions, liberal critics maintain that his response indicates just how complicated the issue under consideration is. Among other things, to establish that Qutb is wrong it seems that one would have to deny the truth of various theological claims on which Qutb relies when he determines that he would reject the right to religious freedom were he adequately informed and reasonable. That would require advocates of the standard view to take a stand on contested religious issues. However, liberal critics point out that defenders of the standard view have been wary of explicitly denying the truth of religious claims, especially those found within the major theistic religions.

Gaus’ case for open justification can only succeed if one makes certain assumptions as to the merits of substantive contentions about morality, philosophy of religion, the truth or falsity of various religious doctrines and questions of meta-ethics. However, such contentions are controversial.

An additional problem is that open justification commits one to the DRR only if one assumes that religious reasons can never be openly justified. Recall that Audi’s definition of a religious reason is one that possesses “normative force, that is, its status as a prima facie justificatory element, does not (evidentially) depend on the existence of God.” This suggests that proponents of the DRR must assume that belief in God cannot ever be openly justified. I would dispute this.

Philosophers and theologians have offered arguments for God’s existence entailing that the beliefs most rational people already accept commit them to theism.  Richard Swinburne has written several works arguing that Christianity is more probable than not on the public evidence than any alternative.[67] Robert Adams has argued that the best account of moral obligation is such that they are the commands of a loving God.[68] Alvin Plantinga sketched 26 arguments for God’s existence, which are currently being defended in the literature.[69] Blackwell recently published an encyclopaedia containing 11 current arguments used to defend the existence of God.[70] Edward Feser agrees,[71]

Versions of these arguments were defended by the likes of Plato, Aristotle, Augustine, Aquinas, Duns Scotus, Descartes, Leibniz, Locke, and Newton, and their defense had absolutely nothing to do with ignorance of modern science — indeed, some of these thinkers were among the founders of modern science — because the arguments do not ultimately stand or fall with any scientific results in the first place. … Among the contemporary defenders of the arguments are writers like Alvin Plantinga, Richard Swinburne, John J. Haldane, James F. Ross, Richard Taylor, William Lane Craig, David S. Oderberg, David Braine, Barry Miller, Robert Koons, Charles Taliaferro and many others — analytic philosophers highly respected within the field and applying the most rigorous methods of analysis and argumentation. … anyone familiar with the classical and contemporary literature on philosophical theology [cannot] deny that the arguments for the theistic worldview mentioned above are every bit as defensible today as any other philosophical argument.

Just as there are numerous secular arguments, each defended by intelligent and capable scholars, held to be sound by their proponents even if rejected by their opponents, so too are there arguments for the existence of God that meet these criteria. In light of this it seems arbitrary to simply assume that religious arguments cannot meet the standard of public justification. Critics can argue the merits of these arguments and claim that only secular arguments can succeed but this will not give proponents of religious reasons a real reason for accepting such claims. Religious believers hold quite different assessments on the cogency of these arguments. Therefore, the demand of open justification does not appear to be a sufficient reason for the restriction of religious reasons but not others.

(iii)       Are secular reasons for coercive laws subject to open justification?
Gaus contends that religious reasons cannot be openly justified and that secular beliefs can. Many thinkers have argued that secular perspectives cannot justify the core commitments of a liberal democracy. Nihilist thinkers have argued that secular naturalistic views of the world entail that all moral claims are false.[72] Stephen Layman[73] and George Mavrodes[74] have argued that a secular view renders belief in morality irrational. Using a Kantian line, John Hare has argued that atheism makes the moral life rationally unstable.[75] Mark De Linville argues that atheism, when combined with evolutionary theory, provides good reason for thinking our moral beliefs are unreliable.[76] Alvin Plantinga has articulated the case for the conclusion that evolution, when combined with atheism, provides a reason for being sceptical about everything we believe (public policy would be no exception).[77] Michael Perry and Wolterstorff claim that human beings possessing inherent rights (a fundamental commitment of liberal democracy) cannot be adequately defended on secular grounds and is only defensible if one assumes religious doctrines.[78]

As with many secular arguments, religious justifications for coercive policies have been advocated by intelligent and capable scholars, held to be sound by their proponents even if they are rejected by their opponents. It would be arbitrary to simply assume that secular arguments meet the criteria of open justification and that religious ones do not.  Cuneo and Eberle note the problem;[79]

Liberal critics maintain that we are simply not in good epistemic position to judge the reasons an agent would have to support laws that protect basic liberal commitments were he better informed and more reasonable. More exactly, liberal critics maintain that we are not in a good epistemic position to determine whether a secular agent who is reasonable and better informed would endorse or reject the type of theistic commitments that philosophers such as Wolterstorff claim justify the ascription of natural human rights. The problem is that we don’t really have any idea how radically a person would change his views were he to occupy these conditions. The main, and still unresolved, question for this version of the standard view, then, is whether there is some coherent and non-arbitrary construal of the relevant counterfactual conditions that is strong enough to prohibit exclusive reliance on religious reasons but weak enough to allow for the justification of basic liberal commitments.

Given the divide between intelligent and capable people over various arguments for and against particular coercive policies it is not prima facie evident that any of these arguments can meet the standard of open justification. Moreover, if an argument could, there appears to be no reason to assume that it could not be a religious one. Now Gaus could examine all currently unsettled policy disputes in society and defend the ones he agrees with and attack the others but the inevitable result will be that many who do not share Gaus’ position will likely be unconvinced. If this is the outcome, there seems no reason why those who do not agree should accept the DRR.

Feser suggests that this arbitrary singling-out of religious reasons for restraint with little or no basis seems to be based more on ignorance and bigotry than reason,[80]

The problem, in the view of many liberals, is that religious considerations are matters of faith, where “faith” connotes in their minds a kind of groundless commitment, a will to believe that for which there is no objective evidence. Opinions on matters of public policy, they would say, can only appropriately be arrived at via methods of argument assessable by all members of the political community, not by reference to the idiosyncratic and subjective feelings of a minority.

If religious arguments were in general really like this, then I would agree with the liberal that they ought to be kept out of the public square. But in fact this liberal depiction of religion is a ludicrous caricature, and manifests just the sort of ignorance and bigotry of which liberals frequently accuse others.

Jeremy Waldron makes a similar point,[81]

Secular theorists often assume that they know what a religious argument is like: they present it as a crude prescription from God, backed up with threat of hellfire, derived from general or particular revelation, and they contrast it with the elegant complexity of a philosophical argument by Rawls (say) or Dworkin. With this image in mind, they think it obvious that religious argument should be excluded from public life, … But those who have bothered to make themselves familiar with existing religious-based arguments in modern political theory know that this is mostly a travesty;

A common theme in the arguments from respect, despite both possessing the features considered relevant, is the asymmetry between religious reasons and secular reasons. On the golden rule argument, Audi privileges secular reasons over religious reasons even though secular reasons were potentially subject to the same charges of being false and burdensome. Similarly with the argument from epistemic inaccessibility, reasonable people are able to reject both secular and religious reasons in a pluralistic society yet Audi and Rawls use this fact to exclude the latter and not the former. Likewise, with open justification, prima facie, there is no reason to accept that religious beliefs cannot be openly justified whilst secular beliefs can. Nor is there a prima facie reason for assuming that liberal commitments can be openly justified on secular grounds. In both cases intelligent and capable scholars have advanced arguments from premises which they believe others are committed to holding. Further in both cases the cogency of these arguments can be reasonably disputed.

In my next post, Religious Restraint and Public Policy: Part VI, I will look at the dangers of religion as a justification for its asymmetrical treatment within the DRR and conclude my argument.

[66] Christopher J. Eberle and Terence Cuneo “Religion and Political Theory” (2008) Stanford Encyclopedia of Philosophy (at 9 August 2009).
[67] Richard Swinburne The Coherence of Theism (Clarendon Press, Oxford, 1977); The Existence of God (Clarendon Press, Oxford, 1979); Faith and Reason (Clarendon Press, Oxford, 2005); Responsibility and Atonement (Clarendon Press, Oxford, 1989); Revelation (Clarendon Press, Oxford, 2007); The Christian God (Clarendon Press, Oxford, 1994); Providence and The Problem of Evil (Clarendon Press, Oxford, 1998).
[68] Robert Adams Finite and Infinite Goods (Oxford University Press, New York, 1999); “Divine Command Meta-Ethics Modified Again” (1979) 7:1 Journal of Religious Ethics 66; “Moral Arguments for Theistic Belief” in Robert Adams (ed) The Virtue of Faith and Other Essays in Philosophical Theology (Oxford University Press, New York, 1987) 144; “Divine Commands and the Social Nature of Obligation” (1987) 4 Faith and Philosophy 262.
[69] Alvin Plantinga “Appendix: Two Dozen (or so) Theistic Arguments” in Deane-Peter Baker (ed) Alvin Plantinga
[70] JP Moreland and William Lane Craig Blackwell Companion to Natural Theology (Blackwell Publishing, Malden MA, 2009).
[71] Edward Feser “How to Mix Religion and Politics” (20056) TCSDaily (at 6 October 2009).
[72] Prominent examples are: JL Mackie Ethics: Inventing Right and Wrong (Penguin, Harmondsworth, 1977); Michael Ruse “Evolutionary Theory and Christian Ethics” in Michael Ruse (eds) The Darwinian Paradigm (Routledge, London, 1989) 251-273.
[73] C Stephen Layman “God and the Moral Order” (2002) 19:3 Faith and Philosophy 304; “God and the Moral Order: Replies and Objections” (2006) 32:2 Faith and Philosophy 209.
[74] George Mavrodes “Religion and the Queerness of Morality” in Robert Audi and William Wrainwright (eds) Rationality, Religious Belief and Moral Commitment (Cornell University Press, Ithaca, 1986) 213-226.
[75] John Hare The Moral Gap (Clarendon Press, Oxford, 1996); “Naturalism and Morality” in JP Moreland and William Lane Craig (eds) Naturalism: A Critical Appraisal (Routledge, London, 2000) 189-211; “Kant and the Rational Instability of Atheism” in Andrew Dole and Andrew Chignell (eds) The Ethics of Belief (Cambridge University Press, Cambridge, 2005).
[76] Mark D Linville “The Moral Argument” in JP Moreland and William Lane Craig (eds) Blackwell Companion to Natural Theology (Blackwell Publishing, Malden MA, 2009) 391 449.
[77] Alvin Plantinga Warrant and Proper Function (Oxford University, New York, 1993) 216-239; “The Evolutionary Argument against Naturalism” and “Replies to Beilby and his Cohorts” in James K Beilby (ed) Naturalism Defeated? Essays on Plantinga’s Evolutionary Argument Against Naturalism (Cornell University Press, New York, 2002) 1-15 & 204-277; “Naturalism vs Evolution: A Religion Science Conflict” in Paul Draper (ed) God or Blind Nature? Philosophers Debate the Evidence (at 3 September 2009).
[78] Nicholas Wolterstorff Justice Rights and Wrongs (Princeton University Press, Princeton NJ, 2008); Michael Perry Toward a Theory of Human Rights: Religion, Law, Courts (Cambridge University Press, Cambridge, 2006).
[79] Eberle and Cuneo, above n 65.
[80] Feser, above n 71.
[81] Jeremy Waldron God, Locke, and Equality: Christian Foundations of John Locke’s Political Thought (Cambridge University Press, Cambridge, 2002) 20. Gaus appears to agree; in his book review of Eberle’s work on the subject he writes, “At the outset, however, let me stress that Eberle has written a very good book indeed. It is manifest that he has thought much harder and deeper about justificatory liberalism than justificatory liberals have thought about religious justification and belief. His analysis of religious epistemology and mysticism (ch. clearly demonstrates the extent to which many liberals have attacked caricatures of religious justification. After Eberle’s book, secular liberals must be much more careful in their claims about religious beliefs and their justifications.” Gerald Gaus “Religious Convictions in Liberal Politics” (2003) Notre Dame Philosophical Reviews (at 13 September 2009) (book review). (Cambridge University Press, New York, 2007) 203-229.

RELATED POSTS:
Religious Restraint and Public Policy: Part I
Religious Restraint and Public Policy: Part II
Religious Restraint and Public Policy: Part III
Religious Restraint and Public Policy: Part IV
Religious Restraint and Public Policy: Part VI