ISSUE
Changing the characterisation of the so-called freedom of religion right found in bills and/or charters of rights to acknowledge that free societies are actually secular rather than religiously tolerant.
BACKGROUND
All western nations, with the exception of Australia, have either constitutional or legislated bills of rights and even in Australia a consultation process is currently underway on whether Australia should develop a charter of rights. Prominent examples of bills of rights are listed here.
Most of these bills and charters make statements concerning religious freedom.
For example the Universal Declaration on Human Rights states at Article 18 that
‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance’
At Article 19 the Declaration states
‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’
Similarly, the First Amendment of the US Contitution states
‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances’
Three pragraphs of Article 18 of the International Covenant on Civil and Political Rights provides more detail on what is involved in implementing these broad rights claims.
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
COMMENT
Simply reading these statements reveals the complexity of the issues involved and that characterising these rights as ‘religious freedom’, or societies that endorse them as ‘religiously tolerant’ is inaccurate, and misleading.
The use of the word coercion at paragraph 2 of article 18 is necessary because clearly people have different beliefs. History demonstrates that it has been common for groups to seek to exercise power over others, to coerce them, in the name of such beliefs. In our own time the rapid growth of radical fundamentalists within all faiths is a further reminder that religious tolerance is an hypocrisy for believers, that by definition believe there is only one truth. Similarly, secular non-believers cannot tolerate diverse religious beliefs because they do not believe in religions or gods of any kind, they hold a contrary view to that of religious people.
Beliefs cannot tolerate one another because they are competing truth claims. This means we should acknowledge that free societies should be described as secular rather than religiously tolerant, because what they do is require people with incompatible beliefs to tolerate each others behaviours and practices. Such societies do not require believers to tolerate other beliefs.
This is a pragmatic and workable approach because practices and behaviours can be tolerated if they do not result in harm, and the beliefs that underpin them can be regarded as a private matter that does not impinge on the freedom of others. This is the approach within societies that are commonly described as religiously tolerant.
Similarly, the acknowledgement of the need to limit the exercise one’s beliefs to protect public safety in paragraph 3 of Article 18 recognises that even tolerance of religious practices must be limited in such secular societies.
It is clear that citizens cannot have an unfettered liberty to manifest their religion as this may involve behaviours that interfere with other peoples enjoyment of their rights. For example, the right to life is denied to many under religious laws that require capital punishment. Similarly, liberty is denied to many in the name of religion, through practices such as forced marriage and imposed dress codes.
These tensions between the competing freedom of individuals in a community are very familar in legal and political discourse. Whole bodies of statutory law have been passed by parliaments, and court based law passed by judges, to balance these competing freedoms. How much noise we are allowed to make, how much pollution we can create and how fast we can drive, are all laws that limit our freedom in order to protect the freedoms of our neighbours.
The fact that a religious belief is the cause of a practice or behaviour is not a sufficient justification for harming others. Therefore, it is not clear that religious practices should be treated any differently from any other type of behaviour, when considering these questions the tension between allowing the exercise of individual freedom, without allowing individuals to impinge upon others enjoyment of their freedom.
Globalisation has revealed the differences between the behavious of various religious communities because it has led to increased immigration. Immigration removes believers from their cultural context and forces them and their adopted society to ask a series of questions. These are questions that have always existed but become more pressing and urgent as more societies transform from mono-cultural mono-faith communities into multi-cultural multi-faith communities. Questions such as:
– whether particular religious practices are necessary for religious reasons, or are purely cultural;
– whether they truly voluntary or involve an exercise of power by the elders within religious communities to force the continuation of various practices; and
– whether some religious or cultural practices may harm members of their community, or others, economically, physically or psychologcally.
In statutory and court based law consent is typically the only justification for harm. That is, if a responsible adult gives informed consent to enter into a contract or any other kind of arrangement that results in harm to themselves, then legally that was their choice. Religious practices can be considered in the same way. That is if they involve consenting adults, and no individual is exercising power over a non-consenting other, then it is a matter for those involved.
This is best described as a secular harm-minimisation approach to religious practice. Describing this approach as religious freedom or religious tolerance is misleading and unhelpful, as it creates an impression that individuals can and should be ‘free’ to exercise their beliefs without limitation. Clearly, this is not the case, cannot be the case, and never has been.
A good example of the way in which it is misleading comes from the independent National Human Rights Consultation Committee that has been appointed to conduct the National Human Rights Consultation in Australia. In seeking to describe some existing human rights in Australia it states:
we are free to follow whatever religion we want – this is our right to freedom of religion.
This is not the case, rather we are free to follow whatever religion we want to the extent that it does not adversely affect others, and we are free to adversely affect others to the extent allowed by the law, whether in the exercise of our religion or any other economic, civil or political activity.
RECOMMENDATION
It is recommended that the independent National Human Rights Consultation Committee appointed to conduct the consultation process currently underway in Australia recommend that in any future Australian Bill of Rights:
1. Australia is described as secular rather than religiously free or tolerant; and
2. Any right to freedom of religion practice is clearly communicated as being balanced and limited by the law in order to minimise harm to others in the same way as other types of behaviour by citizens is limited by the law.
Author – David Anderton
21st Century Solutions 