Religious Freedom Deserves a Right of Its Own

While the human right of religious freedom is ever crushed in China, Iran, Nigeria, and Uzbekistan and is newly curtailed in developed democracies, it has come to face an additional, more conceptual threat over the past quarter century in developed democracies. There, intellectuals are calling into question whether religious freedom merits a right of its own. This is a worrisome development for religious freedom. Its support everywhere depends on a consensus among scholars in universities and law schools, who train lawyers, civil servants, activists, and politicians, who in turn uphold the architecture of laws and policies that give this right legal force and moral legitimacy. 

In December 2023, the world celebrated the seventy-fifth anniversary of the Universal Declaration of Human Rights, Article 18 of which gives pride of place to religious freedom. Now we must ask whether religious freedom will enjoy its status as a legally protected human right for another seventy-five years, or twenty-five, or ten. The human right of religious freedom needs a fresh defense. 

Liberal and Postmodern Objections

Leading scholars of jurisprudence now argue that religion does not merit “special constitutional status,” in the words of Christopher Eisgruber and Lawrence Sager, and that “we [should] consider . . . abandoning the idea of a special right to religious freedom,” as Ronald Dworkin recommends. These three scholars doubt religion’s distinctiveness and maintain that it is arbitrary and unfair to privilege religion with a right that other forms of belief do not enjoy. They do not deny the value of religion, but they argue that it can be protected as simply one instance of a right to speech, conscience, or assembly. Like-minded scholars include Micah Schwartzman, Cécile Laborde, Martha Nussbaum, Brian Leiter, Jocelyn Maclure and Charles Taylor, Alan Patten, and Paul Bou-Habib. They represent a recent trend in the liberal tradition of thought that shares the tradition’s esteem for rights but departs from its historical affirmation of religious freedom. “What if Religion Is Not Special?” the title of an influential article by Schwartzman recapitulates.

If these liberal critics question the distinctiveness of religious freedom, a second contemporary school questions its universality. They are postmodern thinkers, following in the tradition of Friedrich Nietzsche and Michel Foucault, who think that religious freedom is a product of social power in a particular time and place. The paterfamilias of this school is anthropologist Talal Asad, whose followers include Winnifred Fallers Sullivan, Saba Mahmood, Elizabeth Shakman Hurd, and Peter Danchin. Religious freedom, argues Asad, accompanies a conception of religion as inner belief, detached from everyday practice, that arose through the Protestant Reformation and the Enlightenment. Imperial states—including the United States today—then foisted religious freedom on peoples for whom the principle is a foreign import.

Behind both schools’ objections to religious freedom lies a common conception of religion: that it is a set of beliefs, commitments, worldviews, identities, and cognitive statements—all forms of propositions or affirmations that people hold in their minds. So the liberals ask why religious beliefs, rather than philosophical, ideological, or other spiritual beliefs, merit a right of their own, and postmoderns ask why such a modern and western phenomenon is promoted as a global human right. If religions mainly comprise beliefs, these objections are formidable.

Religion as Intrinsically Valuable

Is there a conception of religion that grounds the right to religious freedom more promisingly? Yes: the idea that religion is a distinct category of human activity that is intrinsically, irreducibly valuable. Thinkers in the “new natural law” school have argued most directly that the human right of religious freedom is grounded in the “basic human good” of religion (see the writings of John Finnis, Joseph Boyle, Melissa Moschella, Christopher Tollefsen, Gabrielle Girgis, and V. Bradley Lewis). Basic human goods are intrinsically valuable forms of fulfillment, not merely instrumental to other ends. In centering moral analysis upon goods, the new natural law thinkers join a venerable tradition that reaches back to Aristotle and Thomas Aquinas and is sustained today by thinkers such as Alasdair MacIntyre, Mark Murphy, and Christian Smith. Goods provide a strong basis for human rights; they are what rights protect and promote. The right not to be murdered, tortured, or assaulted is grounded in the goods of life and bodily integrity, rights to free speech and education in the good of knowledge, rights to employment and safe working conditions in the good of work, and so forth.

The idea that religion is intrinsically valuable dates back at least to Cicero, who thought that religion is a natural virtue, the central act of which is worship. Thomas Aquinas, quoting Cicero, argued much the same in the Summa Theologica: “A man is said to be religious . . . because he often ponders over, and, as it were, reads again, the things which pertain to the worship of God.” The Second Vatican Council’s 1965 Declaration on Religious Freedom, Dignitatis Humanae, rooted the right of religious freedom in the pursuit and practice of religion, an activity whose worth is grounded in the nature of the person and known by reason—an implicit endorsement of religion as a natural good.

An argument for religion as a basic good depends on a prior question: Just what is religion? Religion scholar Martin Riesebrodt, in his 2010 book, The Promise of Salvation, defines religion as, not a belief system, but a set of practices addressed to a superhuman power. I concur. The term “superhuman power” at first evokes a Marvel Comics character, but its intended meaning is more serious. “Superhuman” means that the entity exists separately from the humans who interact with it and is not created by them. “Power” means that this entity is efficacious, capable of altering reality. It takes the form of God, gods, deities, spirits, and in some religions, things found in nature. Superhuman powers are revered in Christianity, Judaism, Islam, Hinduism, some forms of Buddhism, Shintoism, Sikhism, Jainism, Zoroastrianism, Baha’i, and many indigenous religions. “Relationship” involves an interactive pair of movements: humans perform prayer, repentance, supplication, adoration, veneration, worship, and virtuous deeds, and the superhuman power bestows blessing, punishment, deliverance, salvation, direction, or enlightenment. Relationship is right when people practice a religion according to its norms: norms governing worship or access to the superhuman power, norms pertaining to rites of passage such as marriage and burial, or a moral code governing behavior between persons.

While religions are not merely matters of belief, they still entail beliefs that regard the character and deeds of the superhuman power and the sorts of behaviors that bring about right relationship with it. Sets of beliefs among religions vary in the extent to which they are systematic, creedal, doctrinal, or situated in sacred texts.

Religions are distinguished, too, by their pertinence to matters of ultimate importance.  They provide answers to what legal scholar Michael Perry calls “limit questions”: What happens to us after we die? Is there a meaning to evil? How did the world come to be? Where is happiness found? Is there an answer to suffering? Other important features of religion are community, a corps of clerics or specialists, and a hierarchy of authority.

This definition of religion, revolving around practices, identifies a distinctive phenomenon. There are types of it, but it is not a type of a broader category such as belief. Religion is distinguishable from rock concerts, encounters in nature, traditions of wisdom, forms of spirituality that involve no superhuman entity, and nonreligious forms of pacifism. It differs also from nationalism, which may take religious forms, but is directed not to a superhuman power but rather to a community of people united by language and history.

Religion is a basic good, realizing human flourishing in two ways. First, right relationship with a superhuman power is religion’s highest goal and is to be sought for its own sake. Hinduism understands moksha—a liberation from suffering and ignorance in which a person is absorbed in the Brahman—to be the highest call of human life. Union with God is the Christian’s goal, one that may be partially realized in this life and is perfected in heaven. Submission to Allah and the peace that it brings about is the Muslim’s highest end. In every religion, such harmony is sought through worship, the quintessential practice of religion, and through prayer, repentance, and works of virtue and compassion for others that are directed to the superhuman power.

Second, through religion people also realize other basic goods: a person is healed through prayer; two people become friends through their religious community; a religious community feeds the poor. These goods—health and friendship—are also found outside of religion, but when they are realized through religion, they are “stamped” as expressions or fruits of religion.

The basic good of religion is universal, not in the sense that every person has practiced it, but rather that it is a good for the human person in and of itself. Its goodness is grasped through practical reason, the power by which we discern the ends that are good for persons to pursue. Yet the good of religion is corroborated by its presence over an astonishing breadth of geography and time. Religion “in the sense of institutions that are associated with superhuman powers has existed in all ages and cultures,” writes Riesebrodt, citing evidence across some twenty-five centuries and five continents. As recently as 2012, the Pew Research Center reported that 84 percent of the world’s population identifies with a religious tradition.

To say that religion is a universal human good is not to say that all religions affirm the same superhuman power, contain the same teachings, or possess the same degree of truth. Rather, it is to say that religion is a natural human phenomenon. 

But why the human right of religious freedom rather than the human right of religion? Why cannot a theocracy declare its country a homeland for one religion, repress other religions, and argue that it is protecting the good of religion, even if not yours? Because religion requires the interior exercise of the mind and heart. “You shall love the Lord your God with all your heart and with all your soul and with all your strength,” reads the Jewish Shema in the Book of Deuteronomy, a command that Jesus calls the greatest in the Gospel of Matthew. True, some religions contain more precepts than others, and in virtually every religion performing certain precepts outwardly is required. All religions, though, teach that members ought to perform precepts with inner sincerity. 

Any forcing of religion, then, any imposition of costs—death, bodily harm, imprisonment, loss of economic livelihood or opportunity, or any other—upon a person or community for religious practice or belief would fail to respect this interiority. It would deny a person his capacity to sincerely and genuinely practice religion, and thereby deny his dignity. People must be free in searching for, adopting, and practicing a religion.

Religious practice has boundaries. It does not extend to actions that compromise “public safety, order, health, or morals or the fundamental rights and freedoms of others,” as the International Covenant on Civil and Political Rights says. Obvious examples of unprotected actions include child sacrifice, the fraudulent solicitation of money, and any form of abuse. Other practices are more contested and sometimes the stuff of court cases. If religious freedom is bounded, though, it also encompasses an exceedingly wide range of practices.

Religion is a basic good for all human beings everywhere, therefore religious freedom is a universal human right. It is neither unfair nor parochial, but a requirement of justice.

Image by zolnierek and licensed via Adobe Stock.