Property rights and the limits of religious liberty.

Author:Montanye, James A.

Western nations maintain variously high walls of separation between church and state. One consequence of this separation is the ongoing dilution, often preceding the occasional disappearance from "public" life, of traditional religious practices and symbols--display of the Ten Commandments, for example. This drift leads some philosophers of religion to conclude that official government neutrality toward religion has constructively "privatized" it (Trigg 2007).

Another consequence of separation and neutrality is a perceived loss of social unity within Western nations, which is coincident with the diminished public display of religious symbolism. This loss is more easily felt than quantified, however, and it is evidently felt most tenderly by philosophers of religion and others who are both privately religious and strongly attached to their society's old ways.

Western scholars of many stripe also worry that the West's insistence on official religious neutrality, tolerance, sensitivity, inclusion, and pluralism--especially to the extent of coddling militant elements of foreign religions and cultures--falls nowhere short of being naively, fatuously, and irresponsibly suicidal. The atheist philosopher Sam Harris offers a blunt assessment of the present situation: "Many religious moderates have taken the apparent high road of pluralism, asserting the equal validity of all faiths, but in doing so they neglect to notice the irredeemably sectarian truth claims of each.... So long as it is acceptable for a person to believe that he knows how God wants everyone on earth to live, we will continue to murder one another on account of our myths" (2004, 15, 134). Events surrounding the construction of an Islamic cultural center near New York City's "ground zero" site and the worldwide consequences in 2010 of a tiny Florida congregation's plan to commemorate the events of September 11, 2001, by burning copies of the Qur'an evince the intensity of feeling all around.

American's sense that their legal and social policies are dangerously out of synch with contemporary reality was heightened in the early 1990s after militant, foreign-born Muslims bombed New York City's World Trade Center. Concern peaked following the subsequent bombing of a U.S. warship off the coast of Yemen and the spectacular attacks of September 2001 against New York City and Washington, D.C. European concerns, by comparison, are the consequence not only of recent militancy, but also of longstanding immigration issues that were exacerbated by the removal of travel restrictions among European Union member countries. The theoretical foundation for the West's universal concerns remains Samuel Huntington's seminal book The Clash of Civilizations (1996).

The upshot is that philosophers, political theorists, economists, and even behavioral biologists now search for comprehensive and principled answers to questions regarding the nature and rational limits of religion in public life. The great issues include, first, identifying the principled distinctions between "legitimate" and "illegitimate" religions, and, second, identifying the proper accommodation for legitimate religious beliefs and practices within pluralist societies.

In this article, I examine the development of religious toleration and accommodation as well as current efforts to shape and perhaps to reverse its direction. I argue that thinking about the limits of religious liberty in terms of property rights and rational individual behavior--that is, thinking outside the traditional philosophical-political-legal box--casts the most intellectually challenging issues in objective and tractable terms.

From Religious Homogeneity to Toleration, Separation, Neutrality, and Individual Liberty

The development of religious liberty in Western civilization is a relatively recent phenomenon that nevertheless spans several centuries. In antiquity, notes the historian Charles Freeman with reference to ancient Rome, "[r]eligious practice was closely tied to the public order of the state and with the psychological well-being that comes from the following of ancient rituals. Religious devotion was indistinguishable from one's loyalties to the state, one's city and one's family" (2003, 68). Slaves' loyalties ran only to their masters (Wiedemann [1981] 1988, 33).

The subsequent rise of Christianity engendered in Western societies the present sense that religion is both an intrinsic aspect of human nature and an inalienable matter of conscience and self-fulfillment. Religion came to be viewed as an individual right, which the state was positively obliged to protect and which it was forbidden ever to limit or deny.

Medieval sovereigns disputed claims that religious matters lay beyond the state's purview. Rather, religious homogeneity was considered to be instrumental both to national unity and to the maintenance of state power. Religious pluralism, in contrast, was disruptive to both of these ends. Also disruptive, however, were the state's coercive attempts to preserve a unity of faith in the face of developing pluralism. Realpolitik dictated, on balance, that pluralism should be tolerated, but only to the extent necessary to preserve domestic peace and order, and then only until religious unity could be restored with relative ease.

The case of the French Protestants (Huguenots) is the premier example of sovereign pragmatism at work along these lines. The Edict of Nantes (1598) established a grudging toleration of Protestants in Catholic France. The edict's guarantees were progressively narrowed and weakened until those that remained were renounced in 1685. The messy domestic and international consequences of this renunciation spawned open debate across Europe regarding the limits of sovereign authority over religion and other aspects of public and private life.

Samuel yon Pufendorf's treatise Of the Nature and Qualification of Religion, in Reference to Civil Society ([1687] 2002) was among the early philosophical works about religious toleration. On the basis of a contract theory of the state, Pufendorf argued that the sovereign has a duty to protect the citizens' natural rights and that this duty does not extend to dictating religious beliefs and practices. Pufendorf's work was followed by John Locke's better-known Letters on Toleration ([1689] 1824), four in all. Locke similarly argued that the care of men's souls fell outside of the sovereign's legitimate bailiwick and that, in any event, such care was better left to the soul's individual possessor.

These views of toleration grew to ground Western thinking and policy regarding religious liberty, They also ground the modern trend toward valuing religious pluralism as an end in itself. The state is now seen as having an affirmative obligation to support and encourage religious diversity for its own sake, neither preferring one religion to any other nor preferring conventional religions to such alternatives as atheism, witchery, Satanism, and pop psychology.

Western civilization's quest for religious liberty and diversity produced notable developments in political philosophy and the literature of liberty. Article 10 of the French National Assembly's Declaration of the Rights of Man and the Citizen (1789) requires that "[n]o one must be persecuted on account of his opinions, including religious ones, provided the manifestations of these do not disturb the public order established by legislation." The First Amendment to the U.S. Constitution (1791) requires that "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." The European Convention on Human Rights (1953) asserts that "[e]veryone 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 worship, teaching, practice and observance" (see. 9.1). It goes on to affirm that the "[f]reedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others" (sec. 9.2). The modern German Constitution (1949) takes religious neutrality to the limit by treating all churches, nonreligious Weltanschauungs-Societies, and non-Christian Religionsgesellschaften as equivalent public corporations (Korperschaft offentlichen Rechts).

Virtually all charters of religious liberty are qualified by the need to maintain public order. The American legal scholar Steven Smith notes that "[a]lthough the [Supreme] Court has offered a variety of rationales for its interpretation and implementation of the establishment clause, probably the most common justification has evoked the need to prevent civil strife in matters of religion. In the last decade or so [since about 1985] this 'civil peace' rationale has been refined and extended to include the 'nonalienation' rationale" (1995, 116). These charters conspicuously do not distinguish among religions on the basis of perceived "legitimacy." The German Constitution, for example, overtly places

all religious and secular public organizations on an equal footing. By comparison, U.S. courts--tax courts, in particular--have divined that the First Amendment's "practice" clause applies to all organizations that (1) advocate a belief in some ultimate, transcendental truth, (2) produce the means for realizing this truth, (3) comprise a community of believers, and (4) assert standing as a religion or church ("Religion" 2010). Having cleared these relatively low hurdles, religious organizations are constitutionally insulated against having to...

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