Governments and Religious Freedom

Faith may bind one heart, Galadriel, but it is too fine a thread from which to hang a kingdom.

—Queen Regent Miriel in LOTR Rings of Power, Season 1, Episode 4

In a previous post (The Golden Rule and Religious Freedom), I argued that the Golden Rule—treat others as you would want to be treated—leads naturally to a policy of freedom of belief and religious toleration. But that’s for individuals. What is the correct position for a government or legal system to take on questions of religion, beliefs of conscience, religious differences, and so on?

I’m not here talking about what the law IS. I’m talking about what it OUGHT to be, from the perspective of political theory and moral theory. If we were to design an ideal government, how would it legislate religious freedom?

Largely, since countries are collections of people, what is true for the individuals will be true for the government, too. In this regard, we could say that the government has a responsibility to use “Golden Rule reasoning” to make freedom of conscience a fundamental right.

This would rule out theocracies and any law or policy that would oppress, suppress, harm, or otherwise interfere with private religious belief and practice. Everyone wants to be allowed to believe what they honestly believe about matters they take to be important, and we feel coercion and oppression on matters of conscience as severe harms. By Golden Rule reasoning, then, we should extend the same freedom of conscience to others that we want for ourselves.

This move would require of governments that they not privilege any one variety of religious belief over others, since our individual political equality means everyone should be equally free and no one should feel like they are (and no one should functionally be) less than a full member of their own society.

This conclusion is clearly not accepted by those who advocate Christian Nationalism in the United States today. This is both a sign of and a cause of the moral badness of Christian Nationalism.

Importantly, this is not the end of the story, because governments have multiple purposes and priorities. One of the most important of these is that governments create and enforce the conditions of life in a country—what is allowed, not allowed, privileged, incentivized, merely tolerated, and suppressed. Different styles of government do this with different focuses and purposes, and different degrees of heavy-handedness. I take it for granted that the most morally correct form of government is a representative democracy.

In a representative democracy, part of the government’s purpose is to create conditions that allow all members of the society to thrive. Exactly what this entails is obviously a matter of political debate, but at a minimum it includes protecting individuals from oppressive or harmful actions by others, including the government itself. This includes a requirement for states to prohibit individuals from harming others, and a special requirement for the state to protect the vulnerable, including children.

In my view, this means that when matters of conscience lead to actions that would cause harm to others, those actions must be prohibited by the government.

For example, governments should not allow child sacrifice, even if someone claims they believe it as a matter of conscience that their god is telling them to kill the child. Whether this is a form of worship, a way to atone for some wrong, to bring the rains, or even just to show obedience, does not matter. Whatever the supposed justification, the killing of the child is obviously a harm to that child, and the state has a duty to prevent such harms.

Another way to put this is that interfering with the right of conscience in this case is the lesser harm compared to the harm that would have been done had the right of conscience not been interfered with.

Less extreme examples use the same reasoning. Torture, female genital mutilation, slavery, racial apartheid, ethic genocide, and so on, should all be illegal because the objective harm to one member of society is not justified by another’s claim to have a mere belief of conscience.

The state’s interference with freedom of conscience in such cases is justified by the fact that interfering with this right is done only to prevent an objective harm to someone. Thus, freedom of conscience and freedom of religion are not absolute, but rather can only be exercised when and to the extent that they do not cause unwarranted or uncompensated harms to others.

The book I am writing makes this case in detail. The positions I take in the book—on freedom of conscience, toleration, and the separation of church and state—at the same time provides natural answers to many hot-button issues in the US today: abortion; antivaccination; religion in the schools; bakers and pharmacists with claimed conscientious objections; and the limits of toleration in a pluralistic society.

For example, since the abortion question really comes down to the question of whether (and if so, under what conditions) an abortion is a permissible killing, we need an answer to the question of whether (and to what extent and under what circumstances) a fetus has sufficient moral standing that it ought not be killed. But this question is a metaphysical question that cannot be answered by pointing to any empirical fact. It ends up being simply a matter of conscience whether you believe that an abortion is a permissible killing or not.

Why is abortion unlike the religious child sacrifice case? One could read the situation as involving someone using their belief of conscience (that the fetus does not have an overriding right to life) to kill a fetus. Normally, we say killing is a harm to the thing killed—so, what is different? The difference is that there is no objective harm done to the fetus in an early abortion. An early-stage fetus does not have the biological structures needed for conscious experience, so it is as impossible to harm it as it would be to harm a leaf. (You can damage or destroy a leaf, but you cannot harm it.)

The counter-argument to this involves saying that you have a belief of conscience that the fetus does have significant moral status and/or that it is significantly harmed by the killing. In that case, your belief of conscience may be sufficient for your own moral choices, but it is never enough to allow you to impose that belief of conscience on someone else.

No one can force you to have an abortion because of their beliefs of conscience, but you cannot prevent someone from having one because of your beliefs of conscience, either. There is obviously a great deal more that needs to be said on this topic, so my book will contain a chapter that covers all the factors, but this is the position in a nutshell.

Let me end with a point that many who prioritize beliefs of conscience may find surprising. I am fully in support of protecting beliefs of conscience, allowing strict religious freedom and enforcing a hard separation of church and state. But my position is an epistemic one. That is, there is no objective evidence that disagrees with a belief of conscience, so there is no basis for anyone (including the government) to force you to believe otherwise. At the same time, it is crucial to recognize that this also means that there is no evidence to support our beliefs of conscience. We believe them, strongly even, but by definition unjustifiedly. Beliefs of conscience are about the topics we recognize as most important and they are by definition deeply personal. But from an epistemic point of view, they have no backing. Beliefs of conscience FEEL like our most important beliefs, but in fact they are the least of our beliefs. We cannot justify these beliefs, so we cannot require others to follow them. And since they have no justification, actions based on them that cause harm to others cannot be justified either: The harm is an objective reason not to do or allow that action, and the counter-reason is insufficient precisely because it is a mere belief of conscience with no evidence to back it.