Hate speech in Croatia - a brief overview of the current situation

Hate speech is a pervasive phenomenon in all societies around the world. The countries of the European Union are particularly sensitive to it and strive to influence the prevention and spread of hate speech through legislation and education. As the youngest member of the European Union (with harmonized laws with the European Union - also in the matter of hate speech), the broad Croatian society is gradually becoming familiar with the definitions and possible forms of occurrence of hate speech and, at the same time, with the mechanisms of combating it. In this context, it is important to follow the judgments of the courts, the explanation of the judgments, as well as the public attention that the cases in these cases receive.

Regarding religiously motivated hate speech, in April of this year, a verdict was handed down at the Municipal Court, in which the television presenter was sentenced to 10 months in prison with a probationary period of two years, while the private television company was fined. According to reports from media portals, the case concerns an event from seven years ago in which, according to the court ruling, the first defendant acted in a public broadcast in such a way as to „incite a sense of hatred and intolerance towards members of the Serb national minority in Croatia, believers of the Orthodox faith in Croatia and the clergy of the Serbian Orthodox Church in Croatia...“.

Moreover, last year the Ombudsman publicly warned about the presence of certain forms of hate speech in a broader sense in the speeches of high-ranking Croatian politicians and about the fact that the level of communication in the Croatian public space is deteriorating.

Also, mutual calling out for using hate speech of different parties and social structures are frequently observed in the Croatian public sphere.

Perhaps it can be stated that the mere fact of being aware of the existence of hate speech and its manifestation is already a step forward for the Croatian society. There are various measures in force at the moment to bring this dangerous phenomenon to light by promoting tolerance and education, showing on various social platforms the ways in which hate speech can manifest itself and towards whom. Some preventative educational measures are aimed specifically at the younger population, to whom the world belongs. This certainly will not eradicate hate speech, but it will help slow the development of the same phenomenon, and perhaps eventually lead to an all-inclusive, peaceful and tolerant society.

 

Saša Horvat

Religious Freedom During the COVID-19 Global Pandemic: The United Kingdom

Abstract: The COVID pandemic has created novel legal issues involving the interplay between a government’s legitimate aim in promoting and safeguarding public health and its obligation to respect religious freedom. Never in the history of the modern Human Rights era have governments, or the courts, had to deal with the balancing of these competing interests on such a widescale. The closure of churches for collective worship and limitations on other elements of religious exercise are clearly interferences with Article 9 of the European Convention on Human Rights. Mandatory vaccination requirements would similarly have an impact on religious freedom and personal autonomy. As these rights are qualified rights, governments can only justify such interferences by showing that they served a legitimate aim, were necessary in a democratic society and were a proportionately tailored means of achieving their goal. The following study will analyse the situation in the United Kingdom on both the question of church closures and vaccine mandates. In doing so, it will also closely follow the jurisprudence of the European Court of Human Rights and look to other jurisdictions to see how they have dealt with the same legal questions. While the courts have not definitively provided universal answers to these questions, they have at least given an indication of how such issues might be resolved should they arise again. What is clear however, is that religious freedom as a substantive right, at least from a legislative perspective, has lost the respect and deference it once had in Western culture.

 

Keywords: COVID, churches, proportionality, European Convention on Human Rights, vaccines, religious freedom, lockdown.

 

  1. Introduction

 

In January 2020, the first case of COVID-19 was diagnosed in Europe. Weeks later, unprecedented lockdown measures were begun in most of Europe, shutting down large segments of society with catastrophic death and hospitalisation rates being predicted by some epidemiological models (Ferguson et al., 2020).[1] Policy was seemingly being driven by fear of the unknown and with the desire to keep hospitals from being overwhelmed. The result was that very few areas of life were left unregulated, including churches and other houses of worship.

This paper does not seek to take any sides on the necessity of measures undertaken by governments, including lockdowns or vaccine mandates. Recognizing that governments have a legitimate interest in promoting and protecting public health, and assuming that governments have by and large acted in good faith, this paper will focus solely on exploring the legal balance between promoting public health measures and respecting freedom of thought, conscious and religion.

The subject jurisdiction to be explored in this enquiry will be the United Kingdom. Where helpful, the paper will also look at how courts from other jurisdictions have dealt with the issues involved. The two central questions to be analysed in this enquiry are church closures and vaccine mandates.

 

  1. Church Closures

 

For many Christians in Europe, and other people of faith, one of the biggest challenges during the different COVID lockdowns was the treatment of places of worship and other manifestations of religious life such as funerals and marriages. Two of the unifying elements of the Council of Europe are the foundational requirements that each of its Member States be democracies and that they respect the rule of law.

What is also clear is that religious freedom is protected by the national constitutions or constitutional traditions of each Council of Europe Member State, and also by the international commitment of each of those states to Article 9 of the European Convention on Human Rights [Convention], which guarantees freedom of thought, conscience and religion. The guiding principle to be used in this analysis of pandemic measures is the concept of legality. Precisely stated, were measures taken to restrict manifestation of religion in accord with the rule of law, meeting the principles of constitutionality, proportionality, necessity and rationality.

It is a worthwhile starting point to highlight the fact that every country in Europe, with the sole exception of Belarus, are members of the Council of Europe and have ratified the Convention. It is also important to note that throughout the pandemic, most Council of Europe Member States, the United Kingdom included, had not availed themselves of the right of derogation during a state of emergency prescribed by Article 15 of the European Convention on Human Rights, by informing the Secretary General of the Council of Europe of their intention to do so and the measures they intended to take (Council of Europe).

Article 15(3) of the Convention is clear as to this stipulation:

Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.

Likewise, the United Kingdom, together with all of the other countries in Europe, are signatories of the International Covenant on Civil and Political Rights. The United Kingdom ratified the Covenant on 20 May 1976. In made no reservations in relation to Article 18 of the Covenant which guarantees freedom of religion. Nor did it make any reservations to Article 4’s provision that even in a time of emergency, public authorities are forbidden to derogate from Article 18 of the Covenant.

Despite this, in March 2020, the United Kingdom introduced various lockdown measures in reaction to the growing fears surrounding the virus (UK, 2020, No. 350).[2] Among the lockdown measures was the wholesale closure of houses of worship, the limitation of people allowed to attend funerals and the prohibition of marriage ceremonies. Churches were allowed to broadcast their services and were allowed to continue engaging in social outreach services to the community.

As can be seen from the above summary, the United Kingdom’s restrictions on religious freedom cannot be justified by emergency alone. Any interference with freedom of religion imposed by the government must, therefore, have continued to respect church autonomy, while being proportionately tailored to serving the legitimate aim of public health (Article 9(2) of the Convention).

 

Arguably, the Secretary of State for Health and Social Care, in taking the measures it did to limit freedom of worship, had failed to take account the enhanced scrutiny afforded to manifestation of religious belief by churches, and the principle of Church independence (Section 13, Human Rights Act 1998).[3]

One of the most unwavering and established principles found in the jurisprudence of the European Court of Human Rights is the doctrine of church autonomy. In the seminal case of Metropolitan Church of Bessarabia v Moldova, the Court held that:

…the right of believers to freedom of religion, which includes the right to manifest one’s religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary state intervention. (ECHR, 2001, § 118)

The Court has concluded that a public authority may not interfere with the internal workings of a church or religious organization and may not impose rigid conditions on the practice or functioning of religious beliefs (ECHR, 1999, §§ 51–53; ECHR, 2000a, § 82). So strong is this principle that it has been upheld three times by the Grand Chamber of the European Court of Human Rights (ECHR, 2000b, 2013a, 2014). Most recently the Court again upheld the same principle regarding respect for the internal workings of religious organizations in a judgment against Hungary when the Court found measures which gave nearly unfettered discretion to parliament to prevent church registration for non-traditional or minority religions violated Article 9 (ECHR, 2015).

While it is accepted that the Church of England may have asked for such measures to be put in place, that should not have negatively impacted the rights of non-state churches in ordering their own affairs. In fact, it has been held that measures taken pursuant to a state church does not relieve a public authority of its obligations to respect all of the rights inherent in the Convention (ECHR, 2011a, § 68). Furthermore, if a state church system is to satisfy the requirements of Article 9, it must have in place safeguards to protect the rights of individual believers, including those of other denominations or faiths (ECHR, 2012a, § 27).

A case can be made that the closure of churches for the purpose of participatory communal religious exercise, leaving them open for social welfare purposes only, not only secularizes the purpose of churches, it sends a very public message that the relevant decision makers view the spiritual role of the church as secondary, wholly dispensable, and subject to nearly unfettered control over its own ability to operate freely. Precisely stated, the manner in which the regulations limiting collective worship were adopted undermined the seminal principle of church autonomy, and by extension church and state separation.

 

The importance of freedom of religion in a democratic society cannot be understated. Freedom of worship is an indispensable component of freedom of thought, conscience and religion, as is church autonomy. Freedom of religion is the only human right to take into account the transcendent. It recognises that our spiritual and emotional well-being is at least as important as our physical health.

The Grand Chamber of the European Court of Human Rights captured the substance of freedom of worship well in Hasan and Chaush v. Bulgaria:

The Court recalls that religious communities traditionally and universally exist in the form of organised structures. They abide by rules which are often seen by followers as being of a divine origin. Religious ceremonies have their meaning and sacred value for the believers if they have been conducted by ministers empowered for that purpose in compliance with these rules... Participation in the life of the community is thus a manifestation of one's religion, protected by Article 9 of the Convention. (ECHR, 2000b, § 82)

For interference with freedom of worship to be a legitimate exercise of executive authority, the interference in question must be ‘necessary in a democratic society’. The ECHR has stated that the typical features of a democratic society are pluralism, tolerance, and broadmindedness (1976; 1989, § 37; 2001b, § 349; 2001c, § 84; 2001d, at §§ 69, 81). For such an interference to be necessary in a democratic society, it must meet a “pressing social need” while at the same time remaining “proportionate to the legitimate aim pursued” (ECHR, 1979, § 62.). The Court defines proportionality as being the achievement of a fair balance between various conflicting interests (ECHR, 1981, § 24; 1976, § 23). Any interference with freedom of religious exercise must be based on just reasons that are both “relevant and sufficient” (ECHR, 1997, 2533, 2548; 1981, § 22). This need must of course be concrete (Renucci, 2005).

The term ‘necessary’, as in ‘necessary in a democratic society’, does not have the flexibility of such expressions as ‘useful’ or ‘desirable’ (ECHR, 2007, § 116). Importantly, only convincing and compelling reasons can justify restrictions on a fundamental Convention freedom (ECHR, 1937).

The foundational question therefore is whether the closure of churches for worship and other spiritual purposes in the United Kingdom, including the solemnizing of marriages, was a proportionate means of serving public health. We know from the caselaw of the Court that proportionality in relation to Article 9, and Strasbourg’s supervisory authority over any restrictions imposed on the freedom to manifest all of the rights inherent in freedom of religion, call for “very strict scrutiny” (ECHR, 1996, § 44). Elsewhere the Court has held that the Court’s supervisory function pertaining to Article 9 requires the Court to look at individual cases in their totality of circumstances, and not by comparison to a hypothetical group (ECHR, 1993, § 21).

It is certainly arguable that the way in which churches were shut amounted to constitutional overreach by failing to properly balance the rights and needs of churches and believers with the health and safety of others. Nor was the wholesale manner in which churches were closed a narrowly tailored means of achieving public health. In fact, it would seem that no balance of interests was undertaken in making the decision to close churches.

While someone in England, for example, was free to purchase alcohol (both off-license and licensed), go to a bicycle shop, secure a loan, go to the chiropractor or dry cleaner, or any other number of activities, church attendance was punishable by fine or forced physical removal to their home, in accordance with Schedule 2 of the Health Protection (Coronavirus, Restriction) (England) Regulations 2020.

The reality is that as dangerous as COVID was during the period of church closures, the threat of addiction relapse, suicide or mental illness which may come from the crippling isolation and pervasive fear caused by the response to the virus was just as dangerous. The public benefit of functioning churches would have been invaluable to these vulnerable people, as well as to believers around the country whose lives are anchored by their faith and participation in their church community. Furthermore, as freedom of religion fundamentally recognises, human beings are more than just physical creatures. We are also spiritual beings, and for many of us, our relationship with our God and participation in our spiritual community is an essential part of who we are.

It is distressing that proportionality and church autonomy were seemingly so easily and carelessly discarded with the closure of churches in the different jurisdictions in the UK. Given that no state of emergency was formally registered with the Council of Europe, it is a matter of significant concern that the regulations closing churches has set a dire precedent for future church activity and government super-regulation of religious exercise. Religious freedom without autonomy is no freedom at all. Churches provide an essential service for a large portion of the British population and their needs, be they spiritual or otherwise.

At the time, avenues were certainly available to keeping churches open in a way that would mitigate the spread of COVID. The failure of the Health Secretary to consider those avenues is evidence that the measures were disproportionate, or at least that they were not properly ‘prescribed by law’as required by Article 9(2) of the Convention.

The one UK jurisdiction where the issue of church closures was fully litigated was Scotland (CSOH, 2021). The Court of Sessions ruled that while the measures passed an objective rationality test, in that restricting public meetings would result in lower transmission rates of COVID (§ 102ff.), the regulations nonetheless lacked proportionality (§ 115–116). The Scottish court reasoned that less intrusive measures were available to make churches at least as safe as supermarkets, or other comparable public spaces, with the use of social distancing and proper ventilation and other hygienic measures. At a minimum, the court reasoned, there was certainly no sense of proportionality in closing churches for private prayer.

 

Early on in the pandemic, the proportionality of France’s ‘lockdown’ of places of worship was considered by the highest Administrative Court in France, the Conseil d'État, in MW et al (Administrative Court, 2020). The Court found that the blanket ban on religious services in France was a “serious and manifestly illegal infringement” of religious exercise under Article 9 and other French and international provisions (§ 34).

The same issue was analysed by the Federal Constitutional Court of Germany (2020) in a judgment handed down on the 29th of April 2020, which was a challenge by a Muslim religious association. The Constitutional Court granted interim relief permitting Friday prayers in a mosque, on the grounds that a blanket ban with no mechanism to apply for exemptions was a disproportionate interference with constitutional rights.

The United States Supreme Court [SCOTUS] (2020), in Roman Catholic Diocese of Brooklyn v Cuomo, granted the petitioners interim relief against Governor Cuomo’s restrictions on religious services. SCOTUS reasoned that the claim would likely prevail and that failure to grant interim relief would irreparably damage the applicant’s 1st Amendment rights. The Court found that churches were being subject to harsher scrutiny than comparable secular facilities and that the petitioner had been following all applicable public health guidance.

Similarly, the Circuit Court of Oregon in Elkhorn Baptist Church, et al v. Katherine Brown, Governor of the State of Oregon (2020), granted a temporary injunction suspending the ‘lockdown’ of religious services. The Court observed that:

The Governor’s orders are not required for public safety when Plaintiffs can continue to utilize social distancing and safety protocols at larger gatherings involving spiritual worship, just as grocery stores and businesses deemed essential by the Governor have been authorized to do. (466 P3d 30, 366 Or. 506.)

The U.S. courts struck down other similar claims on the same grounds, that being that the churches in question were following relevant health and safety guidance but were nonetheless being treated differently than comparable public spaces (The Superior Court of Los Angeles County, 2020; Mayor of the District of Columbia, 2020; 2021).

Another church lockdown claim was brought in Texas by Steven Horze et al, Case 20–0249. In response to the claim, the Governor of Texas issued an Executive Order which included churches in the list of “essential services” which were permitted to remain open. The claim was then withdrawn. Other states, like Florida, followed suit by declaring churches essential services (State of Florida, 2020), making the United States and Brazil the only jurisdictions in the world to keep churches open on this basis. In all, 12 U.S. States declared churches to be an essential service during the COVID emergency.

A further insight may be gained from the decision of the High Court of South Africa (2020) in De Beer v The Minister of Cooperative Governance and Traditional Affairs. The challenge was against the ‘lockdown’ measures in South Africa generally. In analysing the proportionality of the interference with constitutional rights, similar to the Convention analysis done in Council of Europe Member States, the South African Court found at paragraph 7 (§§ 7.17–21), that in an overwhelming number of instances the regulations were not even ‘rationally connected’ to the legitimate aims. While religious services were exempted from the South African ‘lockdown’, had they not been, similar criticisms would no doubt have applied to the prohibition of freedom of worship.

 

  1. Vaccine Mandates

 

Currently, section 45E of the Public Health (Control of Disease) Act 1984 prohibits the mandatory use of vaccines. Section 45E reads: “(1) Regulations under section 45B or 45C may not include provision requiring a person to undergo medical treatment. (2) “Medical treatment” includes vaccination and other prophylactic treatment.”

Sections 45B and 45C, as referenced in Section 45E, deal with the power to make regulations in relation to international travel and domestically.

Had the UK eventually decided to move towards a universal COVID vaccination mandate, the move would have been historically unprecedented. In 1853 vaccines were made compulsory for all new-born infants but this was discontinued in 1971. Since then, no other UK government has contemplated such a significant move.

In November 2021, the government did however amend the Health and Social Care Act 2008 (HMSO) to require health care and home care workers to have to COVID vaccination injections as a condition of remaining on the job. The move led to tens of thousands of workers leaving the public health sector. The government announced that it would be scrapping the mandate on 15 March 2022, leaving the fate of the workers who left because of the mandate in limbo (Gregory, 2022).

 

There is no doubt that the UK government has a legitimate interest in preventing the spread of disease and that an element of vaccinations is not only protecting those who have taken it, but also protecting third parties. However, in law, having a legitimate aim in mind does not give the government carte blanche to act, particularly where doing so has such a significant impact on personal freedoms. The legal standard then is whether the action taken by the government to infringe on certain personal rights is narrowly tailored and proportionate to the legitimate aim being sought and whether it is necessary in a democratic society.

The Solomakhin case was the first to clearly establish the finding in European law, transposed into UK law through the Human Rights Act 1998, that:

‘[c]ompulsory vaccination – as an involuntary medical treatment – amounts to an interference with the right to respect for one’s private life, which includes a person’s physical and psychological integrity, as guaranteed by Article 8(1)’. (ECHR, 2012b, § 33)

Article 8 of the Convention deals with private life, as well as personal and family autonomy. The proportionality test, the European Court of Human Rights concluded, must take into account the specific vaccine and its suitability to the individual in question.

Elsewhere the Court has found that:

…free choice and self-determination were themselves fundamental constituents of life and that, absent any indication of the need to protect third parties, the State must abstain from interfering with the individual freedom of choice in the sphere of health care, for such interference can only lessen and not enhance the value of life. Jehovah's Witnesses of Moscow v. Russia, (ECHR, 2010, § 136)

Just this past year, in a much anticipated ruling, the Grand Chamber delivered its ruling in the case of Vavřička and Others v. the Czech Republic (ECHR, 2021), a case which dealt with mandatory childhood vaccination. While this is the first judgment to deal with mandatory childhood vaccination, it is important to distinguish the case from a possible COVID vaccination mandate challenge. First and foremost, the Czech Republic already had exemptions in place from compulsory vaccination, including for those children with counter-indications to those specific vaccines. Exemptions were also allowed on the grounds of secular conscientious objection. The Grand Chamber did not deal with Article 9 as it was accepted that this was not pled by the family.

Second, the scope of the case was limited to only 10 historically well-known vaccines about which the public health authorities had a wealth of knowledge, verifiable data over a long period of time, and prior clinical testing. Therefore, a strong argument can be made, particularly given these factors, that the Vavřička judgment could not be stretched so far as to include COVID vaccination requirements.

 

The case can be made that the question of individual suitability is certainly balanced towards personal autonomy in the case of mandatory vaccination schemes, especially as pertains to COVID. The vaccines have been rushed onto the market in an unprecedented way. Moreover, the UK government (the Department of Health and Social Care) have given some vaccine producers, like Pfizer, legal indemnity from being sued where patients suffer complications from the vaccine (Lintern, 2020).

What’s more, the efficacy and the safety of the vaccines leaves more questions than answers. AstraZeneca has faced serious questions about its efficacy, both during clinical trials and with those over the age of 65 (Ellyat, 2021). It has also been suspected of leading to blood clots in recipients, with more than a dozen countries in Europe alone having had suspended its supply pending further investigation. Pfizer and Moderna COVID vaccines have also courted controversy. Back in August 2021, Newsweek magazine reported that in the US alone, 970 people had died as a result of taking one of the two vaccines (Browne, 2021).

Additionally, pregnant women have been advised not to take the COVID vaccine. What is more, concerns about the vaccine have been raised about possible effects on fertility (Centers For Disease Control and Prevention, 2022).

Precisely stated, COVID vaccines have questionable efficacy, create issues for those who are pregnant, possibly diminish fertility, have led to death and serious harm, and are not subject to tort litigation by those who have been negatively impacted by it. Not only would it be disproportionate to make COVID vaccination mandatory under such circumstances, or at least to create a scheme where those who do not take it suffer detriments such as lessened freedoms, it would be wholly irrational. Where one of the side effects of the COVID vaccination is death, it would strain credulity to suggest that anyone but the individual themselves should be the sole arbiter of whether to take the vaccine or not.

A counter-balance to this argument is that despite the factors noted above, the COVID vaccine still is a safer alternative than not vaccinating. Additionally, the chance of death as a result of taking the vaccine are de minimus, and certainly much lower that the death rates for the unvaccinated among the most vulnerable segments of the population; namely the aged and those with pre-existing conditions.

 

Any scheme which would unduly punish an individual, either by pecuniary means or by removing freedoms or entitlements would also have a negative impact on religious freedom.

Christians believe that man was created in the image of God (English Standard Version Bible, 2016, Gen 1:27). It is also widely held among Christians that the body is a temple and we owe a duty to God to protect it: “If anyone destroys God’s temple, God will destroy him. For God’s temple is holy, and you are that temple” (ESV Bible, 2016, 1 Cor 3:17). Scripture calls on believers to trust in the healing power of God: “heal me o Lord, and I shall be healed” (ESV Bible, 2016, Jer 17:1,).; and “the Lord sustains him on his sickbed; in his illness you restore him to full health” (ESV Bible, 2016, Ps 41:3). The New Testament also speaks to physical healing through faith: “and the prayer of faith will heal the one who is sick” (ESV Bible, 2016, James 5:15).

While Christians have divergent views on the issue of their faith and vaccines, the fact remains that there are Christians who refuse to get vaccinated because of their faith. Therefore, vaccination schemes which are essentially mandatory, whether strictly speaking or substantively so, can engage the protections guaranteed to believers by Article 9 of the Convention. Like with the issue of physical integrity and private life (Article8), a proportionality test is required to balance the competing rights (ECHR, 2006).

Furthermore, religious freedom is as much an individual right as it is a collective right. Therefore, Christian beliefs against vaccines do not have to be a mandatory faith tenet of a person’s religion to engage the Convention. All that is necessary is for that person to hold the belief seriously and cogently (ECHR, 2013b, §82).

 

Significant moral and legal questions also arise from the fact that some vaccines have been developed using fetal cell lines harvested from aborted babies (Wadman, 2020). Christian Concern has also addressed the issues involved for Christians in a recent video it has published on the subject matter (Christian Concern, 2021).

Pro-life beliefs, whether based on religious grounds or separate from them, are protected by Article 9 of the Convention (ECHR, 1985). The taking of a vaccine which was developed with the use of fetal cells, the harvesting of which necessitated the destruction of human life, would be a serious issue of conscience for many people who identify as pro-life. The dissenting opinions of Judges Vuĉinić and De Gaetano in the Eweida and Others case (ECHR, 2013, Op. Cited at Supra fn. 50), argued that instances of conscientious objection are not so much a matter of freedom of religion as they are of freedom of conscience. Freedom of conscience is mentioned in Article 9(1) of the Convention but is not subject to any of the limitations in Article 9(2), meaning that once a genuine and serious case of conscientious objection is established, the state is obliged to respect it both positively and negatively. Whether or not this position would withstand further judicial scrutiny, what is clear is that the imposition of a vaccination certification scheme would cause a crisis of conscience for many and undoubtedly lead to much litigation.

 

A further issue relating to vaccine passports or mandatory vaccination is that they would create a burden on freedom of worship and Christian education. Facility based mandates or individual restrictions facing those who do not have vaccination certification would do violence to the rights of churches, church organisations such as schools, and to individual believers. Any such schemes raise serious constitutional and human rights questions which require both proportionality and rationality. As noted above, last year, a Scottish court struck down COVID lockdown regulations which disproportionately impacted churches. The case of Philip v Scottish Ministers (CSOH, 2021) challenged both the constitutionality and proportionality of the Scottish restrictions as they specifically related to churches. What that case highlights is that paternalism, where laws are imposed on the supposition that they are in the best interests of the common good, but which cannot be evidenced as being necessary in a democratic society and narrowly tailored to safeguard essential freedoms, do not pass legal muster.

Ultimately, the burden would be on the government to show that such measures would be a proportionate burden on churches and para-ministries in order to justify vaccine schemes to attend a worship service or partake in other Article 9 related activities. To date, no such attempt has been made by the UK government, although other jurisdictions in Europe have done so. The issue of COVID vaccination requirements has yet to be decided at the European level.

 

  1. Conclusion

 

It is often said that religious freedom is the barometer of a healthy democracy. If this were truly the case, the United Kingdom’s treatment of freedom of worship and other elements of Article 9 during the COVID lockdowns would certainly cast a negative light on its respect for personal freedoms and democratic rights. It goes without saying that the decisions being made at the time, with the information that was at hand, were life and death. The legal questions involved with such restrictions were also novel, as a pandemic of this nature has never occurred during the modern human rights era, which began with the Universal Declaration of Human Rights, decades following the Spanish Flu pandemic of 1918.

Time will tell how history remembers the lockdown measures across Europe. What cannot be denied is that very little deference was shown to freedom of religion when restrictions were being promulgated. In not a single jurisdiction of the United Kingdom was collective worship deemed an essential service. While church lockdown cases or the question of mandatory COVID vaccination, particularly from an Article 9 perspective, have not yet been decided by the Strasbourg Court, there is reason to believe that religious freedom would prevail on proportionality grounds. As Europe is slowly finding its way out from 2 years of lockdowns, we can only pray that these questions remain academic and that no further COVID related restrictions of religious freedom will be needed. Only time will tell.

 

Roger Kiska

 

References

 

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ECHR. (2012b, 15 March). Case of Solomakhin v Ukraine, Application no. 24429/03.

ECHR. (2013a, 9 July). Case of Sindicatul “Pastorul Cel Bun” v. Romania [GC], No. 2330/09.

ECHR. (2013b, 15 January). Case of Eweida and Others v the United Kingdom, application nos. 48420/10.

ECHR. (2014, 12 June). Case of Fernandez Martinez v. Spain [GC], No. 56030/07.

ECHR. (2015, 1 December). Case of Karoly Nagy v. Hungary, No. 56665/09.

ECHR. (2021, 08 April). Vavřička and Others v. the Czech Republic [GC], Application nos. 47621/13.

ECHR. Reports 2001-XII.

Ellyat, H. (2021, 25 March). Data, Doubts and Disputes: A Timeline of AstraZeneca’s COVID Vaccine Problems. CNBC. https://www.cnbc.com/2021/03/25/astrazeneca-covid-vaccine-all-the-issues-and-problems-the-shot-has-faced.html.

Federal Constitutional Court of Germany F (1BvQ 44/20) (2020, 29 April).

Ferguson, N. M., Laydon, D., Nedjati-Gilani, G., Imai, N., Ainslie, K., Baguelin, M., Bhatia, S., Boonyasiri, A., Cucunubá, Z., Cuomo-Dannenburg, G., Dighe, A., Dorigatti, I., Fu, H., Gaythorpe, K., Green, W., Hamlet, A., Hinsley, W., Okell, L. C., van Elsland, S., Thompson, H., Verity, R., Volz, E., Wang, H., Wang, Y., Walker, P.G.T., Walters, C., Winskill, P., Whittaker, C., Donnelly, C. A., Riley, S., & Ghani, A. C. (2020). Report 9: Impact of Non-Pharmaceutical Interventions (NPIs) to Reduce COVID-19 Mortality and Healthcare Demand. Imperial College COVID-19 Response Team.

Lintern, S. (2020, 2 December). Coronavirus Vaccine: Pfizer Given Protection From Legal Action Over Coronavirus Vaccine By UK Government. The Independent. https://www.independent.co.uk/news/health/coronavirus-pfizer-vaccine-legal-indemnity-safety-ministers-b1765124.html

Renucci, J.-F. (2005). Article 9 of the European Convention on Human Rights: Freedom of Thought, Conscience and Religion, Council of Europe Publishing.

State of Florida. (2020,1 March). Executive Order 20–91 (Essential Services and Activities During COVID-19 Emergency).

UK Public General Acts. (1984). The Public Health (Control of Disease) Act (UK). https://www.legislation.gov.uk/ukgpa/1984/22/section/45E

UK Statutory Instruments. (2020). The Health Protection (Coronavirus, Restriction) (England) Regulations 2020 (UK). https://www.legislation.gov.uk/uksi/2020/350/schedule/2/made

UK Statutory Instruments. (2021). The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2021 (UK) https://www.legislation.gov.uk/ukdsi/2021/9780348228861.

  1. (2020). The Health Protection (Coronavirus, Restrictions) Regulations. No. 350.

Wadman, M. (2020, June 05). Abortion Opponents Protest COVID-19 Vaccine’s Use of Fetal Cells. Science. https://www.science.org/content/article/abortion-opponents-protest-covid-19-vaccines-use-fetal-cells

Capitol Hill Baptist Church v Muriel Bowser, in Her Official Capacity as Mayor of the District of Columbia. (2020, 9 October). Case No. 20-cv-02710 (TNM).

Grace Community Church of the Valley, et al. v. Gavin Newsom, et al. (2021, 19 August). LASC Case No. 20BBCV00497 (consol. with County of Los Angeles, et al. v. Grace Community Church of the Valley, et al. LASC Case No. 20STCV30695).

High Court of South Africa. (2020, 2 June) De Beer v The Minister of Cooperative Governance and Traditional Affairs. Case No 21542/2020.

MW et al. Administrative Court, France. (2020, May 18). Case No. 440366, 440380, 440410, 440531, 440550, 440562, 440563 and 440590.

South Bay United Pentecostal Church v Newsom. (2021, 5 February). 592 US (2021).

United States Supreme Court. (2020, 25 November). Roman Catholic Diocese of Brooklyn v Cuomo 592.

[1] Ferguson predicted a worst-case scenario of 2.2 million COVID-19 deaths in the United States alone during the first wave of the pandemic. The actual number was 385, 000. Elsewhere, Ferguson predicted that on 17 April 2020, which he thought would be the peak of the first wave, that there would be 2,932 COVID-19 deaths in the United Kingdom. Sarah Boseley, Coronavirus: UK will have Europe’s Worst Death Toll Study Says, The Guardian (08 April 2020). In reality, there were 819 COVID-19 deaths in the UK on the 17th. See: https://coronavirus.data.gov.uk/details/deaths.

[2] For an example of how the closures were formulated, see Section 5(5)–(6) of the Regulations for England at: https://www.legislation.gov.uk/uksi/2020/350/regulation/5/made.

[3] For a further analysis of Church autonomy in ECHR case-law, see: Roger Kiska, The Question of Church Autonomy in Affaire Sindicatul Păstorul cel bun c. Roumanie, 2012 http://www.strasbourgconsortium.org/common/document.view.php?docId=5848. See also: W. Cole Durham Jr. and Donlu Thayer (Eds.), Religion and Equality: Law in Conflict, New York: Routledge, 2016.

From ‘Je suis Charlie’ to the ‘Phobic’ Hysteria. Paradoxes of Free Speech

From ‘Je suis Charlie’ to the ‘Phobic’ Hysteria. Paradoxes of Free Speech

Abstract: In recent years, we have witnessed a striking contrast in the protection of freedom of expression. On the one hand, it is not uncommon to claim that insult or blasphemy are legitimate and genuine aspects of free speech as a fundamental right. On the other hand, academic freedom is increasingly threatened by the censorship of political correctness. The worldwide clamor for freedom of expression under the banner "Je suis Charlie" can be considered, in my opinion, an example of the former; while the attack on the eminent Oxford legal philosopher, John Finnis, is a good example of the latter. The paper presented here outlines some reflections on the meaning of freedom of expression in light of this paradox.

Keywords: Free speech, freedom of religion, blasphemy, academic freedom, human rights, civil liberties, constitutionalism, law and philosophy, European Court of Human Rights, Constitutional Court, harassment, Charlie Hebdo, John Finnis.

 

1. Introduction

The topic of the conference is really a timely one: Challenges to Religious Identity in Public Life: Between Art and Medicine. We are facing difficult times for religious freedom all over the world, not only in communist regimes or sharia dictatorships. I come from Spain, from a well-established Western Democracy, and it would be dishonest to deny that in our so-called open societies, we face crucial challenges for religious freedom. We should not commit ourselves to the task of taking the speck of our neighbor’s eye and fail to see the plank in our own eyes. In the time that follows, I purport to reflect upon the paradoxes concerning free speech and discrimination in our Western democracies. I do not deny, of course, the hardships suffered in close regimes under the rule of sharia, nor the oppression experienced by communist countries. I am not unaware about that, but the very notion of ordo amoris — which is the basis of any practical, either ethical or political duty — demands us a primary concern about our own house, with its own dangers.

 

2. Two stories

 

The title of my paper, From ‘Je suis Charlie’ to the ‘phobic’ hysteria. Paradoxes of free speech, gives me occasion to start with two stories.

1. On Wednesday, January 7, 2015, two terrorists murdered twelve people and severely damaged eleven more in the headquarters of the satirical weekly magazine Charlie Hebdo. The murder, whose authorship was claimed by Al Qaeda, immediately produced a profound international shock. Just one hour after the crime, a French citizen published a twit Je suis Charlie, that achieved success in Internet and became one of the most popular twits in its history. Millions of people repeated the phrase, which penetrated the public spaces all over the world in posters and demonstration slogans. For a few days, the Je suis Charlie became the international banner of freedom of speech.

At the same time, critical voices emerged observing that there was something going wrong with the motto, that (willy-nilly) expressed something beyond the solidarity with the victims. Blasphemous and extremely offensive, the cartoons published by Charlie Hebdo began to be displayed in mass media, and many people lost their sympathy for victims of the attacks. A new voice saying Je ne suis pas Charlie expressed a critical reaction against the way the solidarity with the magazine had been channeled. Among the reactions, David Brooks in The New York Times (Brooks, 2015), or Brian Klug from the University of Oxford (Klug, 2016) wrote sharply critical op-eds. Even Pope Francis included a reference to the limits of free speech in the condemnation of the attacks.

 

2. My second story took place just four years after the first one. In the month of January, in 2019, a group of students of Oxford University promoted a campaign to collect signatures in Change.org, asking for the removal of Professor John Finnis — one of the most prominent legal philosophers in the world, and presumably the most important English-speaker proponent of natural law in the field of jurisprudence — accusing him of “homophobia” and “transphobia.” In support of their accusations, they quoted a series of texts in which Finnis had advocated for the traditional classical view of marriage, and disqualified as opposed to the good of marriage any form of sexual activity outside that institution (Finnis, 2011, pp. 315 ff.).

The proposal of these students managed to produce some sensation, and it was soon followed by more than 300 people. The Emeritus professor responded by holding fast to his writings. “The petition — Finnis declared to The Oxford Student — travesties my position, and my testimony in American constitutional litigation. […] I stand by all these writings. There is not a ‘phobic’ sentence in them. The 1994 essay promotes a classical and strictly philosophical moral critique of all non-marital sex acts and has been republished many times, most recently by Oxford University Press in the third volume of my Collected Essays” (Gould, 2019).

After a few days, Finnis denounced in The Guardian that his critics “mistakenly” took “arguments against their positions and choices” to be “offensive to them as persons,” a problem that became worse by “paraphrases and mutilated quotations.” Again, he stood firm in his viewpoint, and he even added that “it’s clearer than ever to me that the positions I’ve been criticising are damaging to children and other vulnerable people, and to the sustainability of societies.” Finally, Finnis concluded by saying that freedom of expression was “threatened by recent notions of ‘hate speech’, ‘phobia’ and so forth” (Sherwood, 2019).

A year and a half after the incident, professor Finnis gave an interview in which he warned about the creation of “thought crimes.” “I was beyond being damaged,” he said. “But the younger academics, they would have got the message.” Nowadays, “to become a judge or go to the Bar, you have to answer questions that may include this one. […] There will be ways of making it become apparent that you may hold these views and are therefore unsuitable” (McDonagh, 2020).

 

3. Diagnose of the situation

 

These two stories are examples to illustrate a current trend toward legitimizing religious offense, in the first place; and a trend toward cancelling traditional orthodox views as unorthodox, in the second place. The two tendencies present us with a striking paradox that deserves some remarks.

1. First, let me talk a little bit about the origins of this paradox. I will call it the paradox of liberal antiauthoritarianism, and it has to do with a contradiction we should be warned about. Particularly since the 1960s, a strong movement against any traditional instance of moral authority has gained an increasing support in the West. The belief in a self-constituted individual, endowed with a pure freedom and unrestrained by any moral conditioning was extended, and freedom was used as a weapon to erode traditional, institutional bonds. Very soon, however, the drop of traditional authority was accompanied by the rise of a new diffuse and anonymous authority. It was the emergence of the so-called “political correctness.” To understand this change, we must consider that the very phenomenon of “authority” belongs to the essence of the public sphere. It is something as real as the air that we breath. Moral authority is a political need deeply ingrained in our nature as social beings necessitated of familiarity and recognition.

The attack on moral authority perpetrated in 1968 was fully unable to suppress authority as such. As I have said, it could only undermine the traditional sources of authority, but it could not fulfill its utopian goal: interdit d’interdire. Undermining the spiritual authority of the Church and the family could only create a vacuum that necessarily had to be filled by another source of authority. Such new source is “political correctness.” In the words of Leonidas Donskis, “public opinion research, questionnaires, telephone polls and obsessively counted ratings are what create authority and what themselves constitute an anonymous, diffused authority” (Bauman & Donskik, 2012, p. 110). [Of course, we could add many more diffused instances of even lesser pedigree: TV shows, celebrities’ statements, etc.]. It goes without saying that, in the last two decades, the fluidity of political correctness has been intensified due to the rise of communication technologies.

2. My second remark concerns what I call the transition from a deconstructive liberalism to an authoritarian liberalism. First, let me note that, as we know, the term “liberalism” is quite ambiguous. I will not refer now to “classical liberalism” or “limited government” liberalism, which is a noble aspiration that traces back at least to the Middle Ages—notably, to the Magna Charta and other Medieval Charters. Contemporary liberalism, however, almost always postulates the freedom of the individual to define his own version of what we can call “the good life.” From this perspective, human rights and civil liberties have been invoked as a means for undermining the common, traditional understandings of the “good life” in the conscience of the individuals. Therefore, they have operated as a deconstructive liberalism.

In the last decade, however, this “deconstructive liberalism” is being replaced by a new authoritarian liberalism. The new liberalism purports to restrict traditional freedoms by imposing the whole citizenship a duty to endorse and publicly confess the validity and even the nobility of the beliefs and lifestyles held by others. However, if holding a particular lifestyle (e.g., homosexual activity) is incompatible with one’s own lifestyle (e.g., a chaste life under the Catholic beliefs), how is it possible not to intrude in one’s own lifestyle by imposing him an endorsement or acceptance of an incompatible lifestyle? To the extent that someone is imposed such beliefs, liberalism becomes authoritarian.

3. A third remark I would like to make has to do with the reasons why relativistic liberalism has become authoritarian. If what I have called “relativistic liberalism” has ultimately become authoritarian, there must be something in the deep values or ideas sponsored by relativistic liberalism that is not liberal at all, that is deeply illiberal from the very beginning. Relativistic liberalism, both in its “deconstructive” stage and in its “authoritarian” stage, cannot be about freedom—if it were so, it would not have an “authoritarian” stage. In its “deconstructive” stage, relativistic liberalism defends a “right to do wrong” in the name of freedom and tolerance; in its “authoritarian” stage, relativistic liberalism imposes “the wrong” it used to defend as a right. This time, however, it does not invoke the “good life” but “the new values.” “Who cares?” is its first slogan; “Teaching diversity” is its second one.

4. Relativistic and authoritarian liberalism are successive stages in the corrupted forms of States, magisterially described by Plato in Book 8 of The Republic. In a relativistic society, “if someone tells him [the individual] that some pleasures are the result of fine and good desires, others of evil desires, and that he should follow and value the first and punish and hold in subjection the second, he does not admit this truth, or allow it into the fortress. He shakes his head at any claims of this sort, saying that all desires are equal, and must be valued equally.” (Plato, 2000 [561c], p. 274) For “there is no controlling order” (ibidem [561d]) in “the life of the man who puts equality before everything.” (Ibidem [561e] This state of affairs, as Plato rightly explains, immediately precedes tyranny: “is it the insatiable longing for this good [freedom], and the neglect of everything else, which brings about a change in this regime too, and creates the need for tyranny?”—says Socrates. “How does that happen?”—interrogates Adeimantus (ibidem [562c], p. 275). And Socrates concludes: “I imagine it’s when a democracy, in its thirst for the wine of freedom, finds the wine being poured by unscrupulous cupbearers, and when it drinks more deeply than it should of pure, unmixed freedom. Then if its magistrates are not totally easy-going and do not offer it that freedom in large quantities, it accuses them of being filthy oligarchs, and punishes them. In a society of this sort teachers are afraid of their pupils and curry favor with them. Pupils have an equal contempt for their teachers and their attendants. In general, the young are the image of their elders, and challenge them in everything they say and do. The old descend to the level of the young. They pepper everything with wit and humour, trying to be like the young, because they don’t want to be thought harsh or dictatorial.” (Ibidem [563a–b], p. 276)  “It’s all like that—all full of freedom.” (Ibidem [563d], p. 276) “Certainly headstrong”, said Adeimantus, “but what is the next step?”—he added. (Ibidem [563e], p. 277) “Indeed, excess in one direction generally tends to produce a violent reaction in the opposite direction. This is true of seasons of the year, of plants and animals, and particularly true of political regimes.” (Ibidem [563e–564a], p. 277) Here, do we find “the origin of tyranny—the harshest and most complete slavery arising, I guess, from the most extreme freedom.” Ibidem [564a], p. 277)

 

4. Beyond diagnose: four theses on the extent of legitimate free speech

So far, the picture I have portraited may be seen as somewhat discouraging, but we should not let us deceive ourselves by an ill-grounded optimism. “Semper dies mali in saeculo, sed semper dies boni in Deo” (Augustinus, Enarrationes in Psalmos XXXIII, 2, 17). We do not need to develop a long catalogue of reasons in order to be happy and keep fighting for the truth. A few ultimate reasons are more than enough. Therefore, in what follows, I would want to go beyond the diagnose and propose four theses to disentangle the paradox of free speech, and to clarify a little bit the scope and limits of legitimate free speech.

1. My first thesis concerns the so-called right to insult, defended by some scholars in the aftermath of the Charlie Hebdo attacks and currently invoked to justify blasphemous and offensive art.

Just one year before his death, Wesley Hohfeld published in the Yale Law Journal his famous Fundamental Legal Conceptions, one of the most notable contributions to legal analysis written in the first half of the twentieth century. This work was the culmination of an ambitious project, and has given rise to an impressive amount of literature. Hohfeld distinguished what he called “claim-rights” from another kind of rights that he labeled “privileges” or “liberty-rights.”

  1. A’s claim right is the correlate of B’s duty, for example, the duty not to prevent A from doing something. A’s having a right or claim to X against B entails B’s having the corresponding duty to X against A. For example, if I have claim right to receive 10.000 zloty from Alexandra, that means that Alexandra has a duty to give me 10.000 zloty.
  2. By contrast, the privilege or liberty-right is nothing but the denial of an opposite duty on the side of the liberty-holder. Thus, A’s having a privilege or liberty to X opposes to A’s having a duty not-to-X. If I have a liberty right to express my opinion here, that means that I do not have a duty to refrain from expressing my opinion here.

 

The paradox here is that, when people defend a right to do wrong—for example, a right to offend—they are manipulating language, or confusing a liberty right with a claim right:

  1.  There cannot exist a moral or human liberty-right to do something wrong, for the very reason that there always exists a moral or human duty not to do wrong.
  2. However, a claim-right not to be prevented from doing something wrong, may exist, but it would just be a derivation of a social moral duty to tolerate certain evils. It could never be justified in the moral autonomy or freedom of the right-holder, but it would be the mere correlate of a “duty of tolerance” in order to avoid worse dangers. If society tolerates certain insult—for example, the repugnant utterances of Charlie Hebdo or other offensive expressions—the reason to do it does not lie in the moral autonomy or in the legitimate freedom of Charlie Hebdo or other rascals, but in the risks that could follow from banning Charlie Hebdo’s behavior. The very notion of free speech as a moral freedom grounded in moral autonomy, however, cannot cover insult.

 

2. My second thesis can be summarized in the following statement: the main reason for banning insult and religious offense should not be the protection of public peace or public safety, but the honor of the offended. Certainly, a measure of toleration of evil is necessary in any society. However, the reasons for banning an offensive behavior should not lie—at least, not mainly—in the preservation of the public peace. This approach has occasionally led the European Court of Human Rights to issue unjust and discriminatory decisions.

 

  1. Let me illustrate this with an example. In the Decision Le Pen v. France (App. No. 18788/09, 10 April 2010), the European Court of Human Rights analyzed the fine imposed to Jean Marie Le Pen for “incitement to discrimination, hatred and violence toward a group of people because of their origin or their membership or non-membership of a specific ethnic group, nation, race or religion.” Le Pen had made some statements in the daily newspaper Le Monde saying, among other things, that “the day there are no longer 5 million but 25 million Muslims in France, they will be in charge.” The Court said dismissed Le Pen’s appeal for manifestly ill-grounded, alleging that his statements were made in the context of a national debate concerning the integration of immigrants in their home countries, and that could give rise to misunderstandings. He said that France should have a wide margin of appreciation on this issue, since Le Pen could be creating confrontation between the French people and a community whose growth was presented as a danger for the nation.
    This decisions contrasts, in my view, with the case Erbakan v. Turkey (App. No. 59405/00), of July 6, 2006. In this occasion, the European Court of Human Rights condemned Turkey for violating the freedom of speech of Necmettin Erbakan, leader of the party Refah Partisi. The appellant had been sentenced to one-year prison and imposed a fine for incitement to violence during a speech delivered in a town that had recently been target of a terrorist attack. In the public meeting, Erbakan held that “all parties except his own” were “parties of the unjust, lovers of the infidel, defending a system allegedly based on self-interest,” and that “those parties had declared war, according to the Koran, against Allah.” The Strasbourg Court reversed the sentence on the basis that Erbakan was a public figure, that the evidences for condemning him were weak, and that there was no evidence of a “present” or “imminent danger” justifying the restriction on free speech (ECtHR, Erbakan v. Turkey (2006).
  2. The contrast between these cases is just an example of an extended approach towards free speech in Europe. In Germany, for example, article 166 of the Criminal Code only punishes those religious offences uttered “in a manner which is suitable for causing a disturbance of the public peace” (in einer Weise […] die geeignet ist, den öffentlichen Frieden zu stören). However, restricting the punishment of offences to cases in which pubic peace is at risk is unjust, and it has perverse consequences. It creates an unjust discrimination and rewards the willingness to react violently against the offense. Of course, under this criterion, the Christian willingness to suffer must necessarily be discriminated against the willingness to practice the yihad. The scarce application of the crime of religious offence against blasphemous attacks to Christianity gives evidence of what I am saying. The main value protected by the crime of “religious offence” should not be public peace, but the “honor” of the victims and the dignity of the “sacred realities.” Public peace lies in the reverse of those acts with which we become worthy of public peace, namely, in those acts with which we protect basic goods such as the honor of the people. Indirectly, all Criminal Law protects public peace; immediately, however, criminal norms protect particular basic goods, for instance, the honor of religious people and the dignity of the sacred.

 

3. My third thesis is simple. In a pluralistic society, ideological censure is unacceptable, particularly in public universities and public research—this would require some nuance in the case of private institutions with a particular ideology. Here, I want to be very brief. I will quote Chief Justice Earl Warren in the judgment Sweezy v. New Hampshire (1957): “the essentiality of freedom in the community of […] universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die.”

In a very similar way, the Spanish Constitutional Court has said that scientific research is possible only through academic freedom, particularly in social sciences and humanities, given the fact that such research “is always, by definition, polemic and disputable, since it is built upon assertions and value judgements whose objective truth is impossible to achieve with absolute certainty.” (Sweezy v. New Hampshire, 354 U.S. 250 (1957) Setting aside philosophical discussions on the meaning of “certainty,” I think that the Court is right, at least, in asserting that the conclusions yielded by social sciences depend on value judgments which are highly disputable in our pluralistic societies. Therefore, it would be quite unfair to impose silence on these matters on the basis of ideological positions.

As I have said, my plea for State neutrality holds valid in public institutions were there is not an “official truth” or an “official ideology.” The institutional settings of private institutions are different, for the preservation of their ideology serves to the freedom of conscience of those who choose such institutions as the most appropriate environment for their pursuit of truth. However, also in a private institution there must be a climate of respect and tolerance—of course, always within the requirements imposed by the legitimate “public order” of their ideological framework.

 

4. Finally, my fourth thesis concerns the use of apostrophes such as the suffix “-phobic”, or categories such as “hate speech”. Basically, we should reject them as ideologically biased.

 

  1. In a recent work published in the context of current attacks to free speech in American campuses, Princeton Constitutional scholar Keith E. Whittington has rightly pointed out that, though “the category of ‘hate speech’ is sometimes framed narrowly to focus on threats, harassment, and personal insults”, it is “often” framed “very broadly to include arguments with unpleasant conclusions.” (Whittington, 2018, pp. 78–79; a reasonable attempt to depict a restricted concept of “hate speech” may be found in Strossen, 2018, pp. 53 ff. Both authors underline that “hate speech” is not a category belonging to American Constitutional Law). In the same direction, the US Supreme Court has explicitly asserted the right of students to “express any viewpoint they wish—including a discriminatory one”, in line with the “Court’s tradition of ‘protecting the freedom to express ‘the thought that we hate.’” (Christian Legal Society Chapter v. Martinez (2010)) In other judgment, R. A. V. v. St Paul (1992), the Supreme Court has explained that “government may not regulate” speech “based on hostility, or favoritism, towards a nonproscribable message they contain”.
  2. The contrast between vague ideologically charged concepts like “hate speech” or the “–phobic” suffix contrasts with the clearer traditional categories of “slander”, “injury” or “insult”, on the one hand, and “calumny”, on the other hand. Of course, we may also find borderline cases with regards to these categories. However, they are less ideologically charged and more peacefully tailored than the ethereal concept of “hate speech” and the“phobic” label. We must not find striking the fact that “the Supreme Court” of the United States “has never recognized a special category of ‘hate speech’ that is excluded from First Amendment protection”, and the same applies to the so-called “phobic discourse”. As Nadine Strossen has pointed out, this does not mean, of course, that “all speech connoted by the vague phrase ‘hate speech’ is constitutionally protected.” (Strossen, 2015, p. xxi). It just means that the concept of “hate speech” is not an appropriate category to exclude the Constitutional protection provided by the First Amendment.

 

Fernando Simón Yarza

 

References

Augustinus (1956). Enarrationes in Psalmos I-L; Corpus Christianorum Series Latina, Vol. 38 (E. Dekkers and J. Fraipont (eds.). Brepols.

Plato. (2000). The Republic (G. R. F. Ferrari, Ed.). Cambridge University Press.

Bauman, Z., & Donskis, L. (2013). Moral Blindness. The Loss of Sensitivity in Liquid Modernity. Polity Press.

Brooks, D. (2015, January 8). I Am Not Charlie Hebdo. The New York Times. https://www.nytimes.com/2015/01/09/opinion/david-brooks-i-am-not-charlie-hebdo.html

Finnis, J. (2011). Human Rights & Common Good, Collected Essays (Vol. III). Oxford University Press (2ª ed.).

Gould, T. (2019, January 8). Petition Launched to Remove Law Professor for ‘Discriminatory’ Comments. The Oxford Student. http://www.oxfordstudent.com/2019/01/08/petition-launched-to-remove-law-professor-for-discriminatory-comments/

Klug, B. (2016, January 11). The Moral Hysteria of Je suis Charlie. Mondoweiss. https://mondoweiss.net/2015/01/moral-hysteria-charlie/

McDonagh, M. (2020, September 29). ‘I Was Beyond Being Damaged’: An Interview with Philosopher John Finnis. Catholic Herald. https://catholicherald.co.uk/i-was-beyond-being-damaged-an-interview-with-philosopher-john-finnis/

Plato. (2000). The Republic (G. R. F. Ferrari, Ed.). Cambridge University Press.

Sherwood, H. (2019, January 9). Oxford Students Call for Professor’s Removal Over Alleged Homophobia. The Guardian. https://www.theguardian.com/education/2019/jan/09/oxford-students-call-for-professors-removal-over-alleged-homophobia

Strossen, N. (2018). Hate. Why We Should Resist It with Free Speech, Not Censorship. Oxford University Press.

Whittington, K.E. (2018). Speak Freely. Why Universities Must Defend Free Speech. Princeton University Press.

 

Jurisprudence

Christian Legal Society Chapter of University of California, Hastings College of Law v. Martinez, R. A. V. v. St Paul, 505 US 377 (386).

Sweezy v. New Hampshire, 354 U.S. 234 (1957).

ECtHR, Erbakan v. Turkey, App. No. 59405/00 (2006).

ECtHR Le Pen v. Grance, application no. 18788/09, decision 10 April 2010).

Silenced voices in western discourse: Subjugated knowledge and the international struggle for religious freedom rights

Abstract: Violations of religious freedom are increasing dramatically across the globe. Yet, the voices of those victimized by acts of religious bias are often unheard in western discourse. This paper brings visibility to an issue of critical importance to many vulnerable people, specifically Christians and other people of faith who experience acts of intolerance, hate, and violence for peacefully practicing their spirituality. In keeping with this aim, the dominant metaphysical narrative in western discourse—secularism—is discussed, followed by a review of the role human rights play in creating just societies. This provides the foundation for describing the internationally recognized right to religious freedom articulated in Article 18 of the United Nation’s Universal Declaration of Human Rights. Due to the supremacy of the secular narrative in western societies, it is suggested that religious freedom rights are often disregarded. Knowledge regarding the international struggle to operationalize religious freedom rights tends to be subjugated, disregarded by the secular knowledge class professionals who create the societal narratives that inform westerners of which issues, perspectives, and populations are worthy of their attention. In turn, this subjugation has contributed to a global increase in social harassment and systemic discrimination. The paper concludes by suggesting several strategies to help make visible the subjugated voices of people of faith and advocate for their rights. By collaborating on behalf of those who cannot speak, we can create more inclusive, just, and equitable societies in which everyone’s fundamental human rights are respected. Silence can no longer be an option.

 

Keywords: religious freedom, human rights, religious discrimination, social justice, religious persecution.

 

 

  1. Introduction

 

Certain voices tend to be marginalized or excluded from culture-shaping discourse in western societies (Blacksin, in press). As Foucault (1980) observes, what is considered legitimate knowledge is inextricably linked with power. Voices that do not have access to cultural power are largely disqualified from appearing in mainstream discourse. Valid perspectives are subjugated to the needs and interests of those who hold power. This subjugated knowledge exists outside, or on the periphery, of mainstream discourse.

The purpose of the present article is to make visible a subjugated perspective of critical importance to many people around the world, namely people of faith whose human right to religious freedom is violated. Giving voice to subjugated perspectives plays a critical role in creating a more equitable society. Making visible subordinated experiences challenges the knowledge monopoly reflected in the dominant discourse, creating intellectual space to work for a culture characterized by inclusion and respect.

Toward that end, the paper begins by reviewing the dominant metaphysical narrative in western discourse followed by a discussion of the role that human rights play in facilitating the creation of a just society. This provides the context for describing the right to religious freedom and reviewing the status of this right in an international setting. The paper concludes by suggesting several strategies to make visible the subjugated voices of people who are experiencing acts of intolerance, hate, and violence for peacefully practicing their faith.

 

  1. The Context of Subjugation: The Supremacy of Secularism in the West

 

In the United States and other western nations, secularism functions as the dominant worldview (Smith, 2003). Secularism can be defined as a worldview that is oriented toward the material or temporal world (Dictionary.com, 2021; Merriam-Webster, 2021). As such, the secular framework for understanding reality differs from the spiritual or transcendent worldview held by Christians and other people of faith who view realty through a different lens (Hodge et al., 2009).

Although many different forms of power exist, ultimate or true power can be understood as the ability to create and define reality (Sue, 2010). In the west, perceptions of reality are shaped by what various scholars have called the New Class (Gouldner, 1979; Ranz & Allassad Alhuzail, 2021) or the post-industrial knowledge sector (Hunter, 1991). This sector is comprised of a class of professionals that work in occupations that selectively construct, produce or manufacture knowledge including, for example, elite university departments, higher education administration, corporate management, advertising agencies, governmental and regulatory sectors, news media, film industry, and television programming. In western societies, it is this constellation of professional elites that tend to create and police discourse.

One of the defining characteristics of this structurally differentiated and relatively autonomous social stratum of elites is the prevalence of a secular worldview (Gouldner, 1979; Hunter, 1991; Smith, 2003). The secular values associated with this worldview are implicitly embedded into the socially constructed narratives created by knowledge sector professionals. Secular assumptions about the nature of reality—such as what issues should be considered or disregarded, what groups are deserving or undeserving—are woven into the social narrative at a foundational level (Martin, 2007). In turn, individuals rely upon this narrative to provide heuristic touchstones to understand and interpret their lived experience (Baker & Smith, 2015; Smith, 2014).

Due to the pervasiveness of secularism in western discourse, it is often difficult for westerners to recognize that secularism represents just one socially constructed understanding of reality. Value systems that occupy the cultural center are—by definition—typically challenging to recognize (Torino, 2015). Dominant value systems are viewed as normative by members of the mainstream culture. They are implicitly held to represent the accepted, commonsensical framework for viewing the world that all rational individuals accept. The epistemic homogeneity—reflected in television programing, news media, popular music, educational settings, etc.—functions to socialize people into a particular worldview while concurrently limiting understandings of alternative perspectives.

The omnipresence of secularism at the top of the power hierarchy tends to subjugate other metaphysical understandings (Foucault, 1980). It is important to note that this process is not necessarily intentional. Rather, the subjugation of alternative forms of knowledge is a product of epistemic hegemony in the reality-defining knowledge sector. Those in the cultural center do not realize they implicitly exclude alternative perspectives as they perceive their understanding of the world to represent the only reasonable or valid understanding (Nord, 2010). Yet, many other suppositional frameworks or knowledge packages exist in addition to the secularism stemming from the European Enlightenment.

Indeed, many Christians and other people of faith exist in United States and other western nations (Richards & Bergin, 2014). Furthermore, theists comprise the majority of the population in many developing nations (Pew Research Center, 2020). Since these individuals are frequently located outside the centers of cultural power, their perspectives tend to be subjugated to the interests of those with power. In the following section, a perspective on justice is presented that has been largely ignored in western discourse; but is particularly salient to many vulnerable people across the globe.

 

  1. Human Rights: A Path Toward a More Just Society

 

Various understandings of what constitutes a socially just society exist. One particularly influential method that has been suggested to operationalize the concept of justice in a practical, concrete manner is human rights (Gatenio & Mapp, 2020). In this understanding, social justice is operationalized by identifying human rights violations and then advocating for the restoration of the infringed rights. The notion that human rights are a central feature of a just society has enjoyed considerable success in the international community of nations (Gill, 1998).

In turn, the success of the human rights framework has resulted in what Clément (2018) refers to as “rights inflation.” Groups with social power frame their concerns as human rights violations. The appropriation of human rights as a model for addressing a growing number of concerns undermines attempts to address systemic problems that are arguably more pressing or fundamental concerns. One significant way to address the issue of rights inflation, is to focus on basic human rights that have stood the test of time and are widely affirmed across cultures.

 

            3.1. The Universal Declaration

 

The oldest and most widely affirmed international human rights protocol is the United Nations’ (1948/2021) Universal Declaration of Human Rights. The Declaration was developed in response to World War II and the persecution of the Jewish people, most notably in form of the Holocaust in which approximately six million Jews were systematically executed by the German Nazi government (Gatenio & Mapp, 2020). The Declaration was adapted without dissent in 1948 by the UN General Assembly and has been translated into over 500 languages. This protocol represents the international community’s attempt to prevent future Holocausts by delineating the basic, fundamental human rights that transcend all human cultures (Gil, 1998).

Although the human rights framework is widely accepted, it should also be mentioned that the concept of human rights is contested (Langford, 2018). In turn, human rights supporters have sought to address the concerns raised by critics (Walker, 2020). A full discussion of the various critiques and counter-critiques is beyond the scope of the present paper. Perhaps the central issue is that virtually every nation on the planet has endorsed the Declaration (Gil, 1998). As such, they are morally bound to protect the rights delineated in this protocol, including these featured in Article 18 of the Declaration.

 

            3.2. Article 18: Mapping the Scope of Religious Freedom Rights

 

The Declaration addresses religion in several locations, such as Article 2 which prohibits discrimination based upon religion. Its most important statement regarding religion, however, is found in Article 18. This Article moves beyond prohibiting religious discrimination to provide a positive description of the right to religious freedom. In other words, it maps the scope or parameters of religious liberty. In slightly paraphrased form, Article 18 states that everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change one’s religion or belief, and freedom, either alone or in community with others, and in public or private, to manifest one’s religion or belief in teaching, practice, worship and observance (United Nations, 1948/2021, Article 18).

As the preceding content makes clear, the right to religious freedom cannot be confined to acts of worship conducted in private settings. Rather, embedded in this right is the freedom to express one’s beliefs in public settings, either as an individual or as an institutional group that affirms a distinct metaphysical worldview (Marshall, 2021). This implies that societies have a moral duty to create a public space that ensures that diverse manifestations of religious belief and practice are accepted, if not affirmed and celebrated as important forms of diversity that enrich societal discourse. Although the concept of human rights retains broad philosophical support in western settings, this support is not always operationalized in a concrete, tangible manner when religious freedom is a relevant concern.

 

  1. The Disregarded Human Right

 

In western settings, the right to religious freedom has been increasingly marginalized (Marshall, 2008; 2021). To paraphrase Foucault (1980), knowledge regarding these violations is subjugated in mainstream discourse because it does not reflect the secular interests of those with power. Academic scholars, fictional television programing, news media and other dimensions of the knowledge sector have paid scant attention to violations of religious freedom, in either international or domestic settings.

In turn, the paucity of attention focused on religious freedom has contributed to a worldwide increase in religious intolerance (Alton et al., 2019). The United Nations’ (2019) General Assembly expressed serious concern about the continuing acts of violence and intolerance directed towards people of faith and their communities around the world. The resolution went on to note that both the number and intensity of these acts were increasing.

Another perspective is provided by the Pew Research Center (2021), which has tracked trends in the harassment of religious groups for over a decade. The number of countries and territories where religious groups experienced harassment—either by social groups or governments—reached the highest level ever recorded. Out of 198 nations analyzed, 190 featured acts of religious harassment at the hands of social groups or government officials.

A relatively novel method that governments are employing to restrict individuals’ religious freedom involves the use of new forms of technology (Pew Research Center, 2021). Included under this rubric are surveillance cameras, facial recognition software, and biometric data which are used to monitor and restrict religious groups. For instance, in Iran, the government reportedly launched cyberattacks against Sufi Muslims and other religious minorities to steal their private information. In Pakistan, a Muslim was sentenced to five years in prison by a cybercrimes court for posting content online about an early Islamic leader with ties to the Prophet Muhammad.

A particularly concerning manifestation of this new development is China’s use of advanced technology to build a “social credit” system (Stark, 2021). The Chinese government has invested heavily in artificial intelligence and seeks to be the world leader in developing surveillance technology that states can use to monitor their citizens’ activities. In this system, activities the government frowns upon lowers an individual’s social credit score. Decreasing social credit scores are linked to sanctions of increasing severity.

Currently, China uses advanced surveillance technology to monitor churches, mosques, synagogues and other religious gatherings. Facial recognition software is employed to monitor and collect biometric data on Uyghur Muslims, Christians, and other disfavored groups (Pew Research Center, 2021). DNA samples are also collected, mapped, and incorporated into online databases that calculate an individual’s social credit score. Engaging in unmonitored religious activity can lower one’s social credit score which, in turn, may result in various penalties up to and including incarceration and being “disappeared” (Chow, 2020).

 

            4.1. Significantly Persecuted Groups

 

Religious persecution can be understood as severe discrimination that stems from a person’s religious faith. When discussing groups that experience persecution, it is important to mention that essentially every group experiences discrimination in some context. Typically, religious minorities are disproportionately victimized. Those without access to cultural power in a given national setting are at risk of experiencing discrimination, especially if their metaphysical beliefs and associated practices differ from those widely affirmed in the dominant culture in their host nation.

In the global context, Christians are the most widely persecuted group (Marshall et al., 2013). At least three-quarters of the world’s active Christians live outside the developed west. Most Christians are non-white and female. From a global perspective, the typical Christian is a Nigerian or Brazilian woman. Furthermore, she is frequently living in poverty, often acute poverty relative to western standards.

In many areas of the world, Christians experience severe sanctions for peacefully exercising their spirituality (Marshall et al., 2013). In Nigeria, for instance, eleven Christians died and more than twenty were injured when anti-Christian terrorists firebombed a church service. In North Korea, a woman was caught with a Bible in her home. She was subsequently taken from her home by police who tied her head, chest, and legs to a post and then shot her. Christians and other people of faith can experience rape, torture, and death merely for following the most basic precepts of their faith (Pew Research Center, 2021).

Particularly intense or targeted persecution occurs in specific geographic locations around the world. For instance, in the Xinjiang province of China, policies have been implemented to effectively prohibit the practice of faith among members of the Uyghur ethnic group (Stark, 2021). Chief among these government policies is the arbitrary detainment and imprisonment of Uyghur Muslims, Christians, and other disfavored groups (Pew Research Center, 2021). These individuals have been subjected to forced labor, sexual abuse, and various forms of psychological and physical torture. It is estimated that approximately one million Muslims are held in these internment camps. As such, it represents the largest forced incarceration of an ethno-religious minority since the end of the World War II (Finley, in press).

Other regions are also characterized by significant degrees of religious persecution (MacGuire, 2019). For instance, Christian communities in some areas of the Middle East and North Africa have experienced what some have called genocide. Christian churches have been burned, governments have refused to allow repairs or approve new sanctuaries, and conversions have been prohibited. In tandem with these government actions, Christians have been subjected to various forms of mob violence up to and including crucifixion (LeMasters, 2018). Whole cities and regions have witnessed systemic persecution at the hands of government and social mobs. Once vibrant minority communities with histories dating back two millennia no longer exist. Likewise, antisemitism is pronounced in regions of the Middle East and is a growing concern in western nations as well (Kressel & Kressel, 2016).

 

            4.2. Rights Violations in Western Nations

 

It is important to state that violations of religious freedom are not limited to developing nations, but also occur in western nations (Pew Research Center, 2021). To be clear, the level of harassment is lower in many western nations relative to other parts of the world. Nevertheless, western nations are not immune to the larger global trends. Although the level of social hostility directed toward people of faith has remained relatively constant over the past decade, the level of government restrictions has increased.

The United States has witnessed many efforts to push Christians and other people of faith out of the public sphere (Kanpol & Poplin, 2017). For instance, the government has repeatedly attempted to coerce the Little Sisters of the Poor—a community of Catholic Nuns—to violate their religious beliefs by mandating the provision of contraceptive care to their celibate Nuns (Ford, 2016). The Little Sisters believe that encouraging any procedure that ends human life is morally unacceptable. This belief is grounded in Christian teaching that affirms the sanctity of human life across the lifespan. It is this very teaching that provides the philosophical basis for the Nuns dedicating their lives to serving impoverished older adults.

Hate crime data provides an interesting perspective on the level of social hostilities in the United States. In New York State—which includes New York, America’s largest city—over half of all hate crimes target people of faith (Green, 2020). Most of these incidents of hate were aimed at Jews, with orthodox Jews being disproportionately targeted due to their culturally distinctive value system.

In the Canadian province of Quebec, the government has banned public sector workers from wearing ostentatiously religious symbols (Béland et al., 2021). For example, Jews are prohibited from wearing a kippah, Muslims from wearing a headscarf, and Christians from wearing a cross (Amarasingam et al., 2021). For many individuals these modes of attire are requirements of their faith or manifestations of their personal spirituality. It should be noted that Quebec—the largest province in Canada—is also one of the most secular provinces in the nation. In other words, relatively few people of faith live in Quebec. The policy eliminates the few remaining displays of religious diversity among teachers and other public sector employees, effectively establishing secularism as the only allowable worldview. This policy provides a textbook example of how western governments engage in systemic discrimination against people of faith while simultaneously privileging secularism (Hodge, 2009).

Again, the degree to which people’s religious freedom rights are violated in western nations is low relative to many other regions of the world. Although people are occasionally murdered for their faith in western nations, these types of killings are comparatively rare (Hodge & Boddie, 2021). More common are less overt forms of discrimination, such as refusing to hire Christians in key knowledge sector occupations (Yancey, 2011) or various forms of implicit bias that serve to marginalize Christians (Rios et al., 2015), Muslims (Aidenberger & Doehne, 2021), and other people of faith (Wright et al., 2013). Although the prevalence and intensity of religious discrimination may vary from nation to nation, all violations are harmful to those who are victimized. Consequently, efforts to create peaceful societies that respect religious diversity and freedom of religion across the world are critically important (United Nations, 2019).

 

  1. Strategies to Foster Equitable, Pluralistic Societies

 

Multidimensional efforts are needed to make visible the subjugated voices of people who experience human rights violations. People of faith often have unique insights into the various dynamics associated with religious discrimination. Allies, however, can often play a critical role in highlighting acts of intolerance. In short, people of all metaphysical beliefs are needed to implement and support strategies that help create more inclusive, equitable societies (Thyer & Myers, 2009). As the United Nations’ (2019) General Assembly has noted, a wide variety of actors have a duty to promote and protect religious freedom across the world including states, regional organizations, human rights groups, non-governmental organizations, religious bodies, media outlets, and civil society as a whole.

In keeping with this aim, the United Nations (2019) has designated August 22 as the International Day Commemorating the Victims of Acts of Violence Base on Religion or Belief. This resolution provides an opportunity to request local media to run stories focusing on religious persecution. Alternatively, people might write and submit editorials on the status of religious freedom. Another option is to feature the personal stories of those who have been victimized.

Scholars with expertise in a given nation might highlight areas for improvement, noting ways in which policies might be strengthened to protect religious freedom rights (Li, 2020). On a related note, arguments defending religious freedom might be constructed and disseminated (Marshall, 2021). This approach allows authors to craft narratives that reflect the unique laws and traditions of a particular national context.

Developing scholarship that speaks to the values and interests of the dominant secular class in western nations can be an effective strategy to promote the value of religion in society. For example, Grim and colleagues (2014) document how religious freedom contributes to better economic and business outcomes in America. In a related study, Grim and Grim (2016) estimate the economic value of religion to the United States ranges from $378 billion to $4.8 trillion dollars annually with a mid-range estimate of just over $1 trillion annually. To put these numbers in context, the low estimate (i.e., $378 billion annually) is more than the combined global annual revenues of the tech giants Apple and Microsoft. Similarly, Cnaan and An (2018) document the diverse ways that American urban congregations add economic and social value to their neighborhoods by, for example, adding green space to urban environments to enhance livability. In international settings, Grim and Finke (2010) illustrate that religious freedom reduces violence, a concern shared by many secular people around the world.

It is important to note that highlighting the utilitarian value of religion does not detract from the moral imperative of societies to respect people’s fundamental human rights. All nations that have endorsed the Declaration have a moral duty to promote tolerance and respect for religious diversity (United Nations, 2019). This duty exists regardless of any beneficial effect religion may or may not have in society. Rather, highlighting areas of congruence with the beliefs and values of the dominant secular culture helps to increase the likelihood that the message of inclusion and equity will be understood and acted upon.

This is one reason why scholarship on spiritual microaggressions is important (Sue, 2010). Spiritual microaggressions can be defined as commonplace verbal, behavioral, and environmental slights or insults directed at individuals based upon their membership in a given spiritual group, faith tradition, or religion (Hodge, 2020). Consider, for example, an individual wearing a shirt featuring the phrase “Recovering Catholic.” This phrase implicitly equates Catholicism with a disease or medical disorder, and coveys a message that mocks or disparages members of this faith tradition. These subtle messages function to legitimize discriminatory actions against Christians and other people of faith. Put differently, spiritual microaggressions help create an environment in which acts of intolerance and violence aimed at people of faith are accepted, tolerated, or perhaps quickly acknowledged as unfortunate and then ignored. More research is needed on spiritual microaggressions and other dynamics that facilitate an environment that permits religious discrimination. In addition to exploring the link between spiritual microaggressions and discrimination, researchers might also examine the relationship between these aggressions and diverse mental and physical health outcomes (Sue, 2020).

On a related note, scholars might explore the relationship between religious discrimination and diaphobia, which is conceptualized as animus toward a divine worldview in which a transcendent God serves as the central point of reference as opposed to a secular worldview (Hodge, 2003). Researchers might examine how diaphobia creates a hostile environment for people of faith as well as its relationship with various health outcomes. In addition, similar concerns might be explored as manifested within the context of specific faith traditions including, for example, Christianophobia (Yancey & Williamson, 2014), Islamophobia (Aidenberger & Doehne, 2021), and antisemitism (Hodge & Boddie, 2021).

 

  1. Conclusion

 

As Foucault (1980) suggests, the emancipation of subjugated knowledge plays a central role in creating a just society in which people’s human rights are respected in an equitable manner. Due to the supremacy of secularism in western societies, the interests of people of faith are often ignored or overlooked. In turn, the neglect of these perspectives has fostered a major human rights crisis that disproportionately impacts some of the world’s most vulnerable people (United Nations, 2019).

The voices of Christians and others who are victims of intolerance, hate, and violence must be heard. By working together, we can help create more inclusive, just societies that respect diversity. We must work to create a world where everyone is free to practice their right to religious freedom without fear. Allowing others to suffer in silence can no longer be an option.

 

David R. Hodge
University of Arizona, USA

 

References

 

How We Got Here: A Brief and Biased History of Religious Freedom

Abstract: How did we arrive at this point in our thinking about religious freedom? Why are our public debates on such topics so rarely fruitful and so often hostile, especially in a time of pandemic? I will tell a crucial chapter of that history. Seventeenth-century Europe was an age of epidemics and religiously-based persecution, yet the century closed with important steps toward a more tolerant society. The English philosopher and theologian, John Locke, started his career opposing any religious freedom. Tracing how and why he changed his mind can explain some of the limits to our thinking nowadays, and why our public debates are not more fruitful. I will analyse several claims of religious exemptions to COVID-era rules, in keeping with Locke’s model, since two of his own examples concern an epidemic.

 

Keywords: John Locke, COVID-19 epidemic, vaccine, natural law, conscience, rights

 

 

            Acknowledgements

 

Thanks to D.T. Everhart and Micah Perry for invaluable research assistance.

 

  1. Introduction

 

I understand the overall project of the Laboratory of Religious Freedom to be the study and prevention of religious discrimination and violations of conscience. This volume, in particular, focuses on such things as conscientious objection in medicine and blasphemy laws in art. Given the timing, Covid-19 became an understandable case study, as we have before us an event of global importance that brings together many of these concerns.

The aim of this essay, therefore, is to tell a story of how we arrive at this point in our thinking about religious freedom, told from a theological and political perspective. The reason I chose this approach is not only because Christian moral theology is the field I study, but also because I want to prevent possible missteps that I have seen among Christian supporters of religious freedom. There are, to my mind, three very good reasons for thinking that learning “how we got here” would help us understand our current conversations surrounding religious freedom.

Reason one: our current moment in this debate is not as simple as religious believers, on one team, versus secularists on the other. As counterintuitive as this may seem, Christians have good reason to oppose some conscientious claims, even when made by their fellow Christians. This is because some strategies one might pursue to enhance religious freedom may have the opposite effect in the long run, given the discourse we use to talk about the topic. Put another way, if you hope to enhance Christians’ rights of conscience, in those terms, you could shoot yourself in the foot, depending on what others have in mind by “rights” and “conscience.” Do, for instance, Thomas Jefferson, Dignitatis humanae, the U.N. Declaration, John Rawls, the Catechism of the Catholic Church, and Boris Johnson all mean the same thing by the concept of religious freedom? It is demonstrably the case that they do not. Understanding the road to our current conversations surrounding religious freedom can help us pick apart the different perspectives and nuances of the discussion.

Reason two: some strategies available to us today have been tried before. In fact, many of these have backfired, creating the conditions for our current situation. We could label this point: “it’s not a bug, it’s a feature.” The notorious difficulty of weighing competing rights claims is like this. In the early days of modern religious freedom, rights were supposed to be absolute. So, the lack of balancing competing claims was a feature, not a bug.

The third and final reason that learning “how we got here” could help our current understanding of religious freedom debates is that Christians in particular seem to forget that religious freedom was almost universally opposed by Christians until recently. The only exceptions were liberal Protestants. So, how did Christians become supporters of religious freedom? Something has changed. It is worth reminding ourselves how Christians could have idiosyncratic ways of conceiving of conscience and their own the reasons in favour of religious freedom.

I begin with three stories from the coronavirus-era. I relate them here only to give us a sense of the sort of dilemmas we face today. The first is more of a question for us to keep in mind than a story. Last month, I attended a church service in Paris. As you may know, one of the ways that French president Emmanuel Macron boosted vaccine uptake was a rule targeting something that the French love. If you want to eat out in France, even to sit outside to smoke at a café, you must show proof of vaccination. However, you don’t have to show such proof to go grocery shopping. While we might think this fair given the necessity of groceries as opposed to smoking in cafés and eating in restaurants, the difference in the treatment of these activities raises certain question. Namely, given those two categories—restaurants where proof is required or supermarkets where it’s not—which best fits church services? While I was not asked for proof at prayers in Sacré-Coeur last month, how should we think about and categorize religious services?

Second story: a student at St Andrews told me about his sister, who is an Intensive Care nurse in California. She had a patient in her unit, seriously ill from Covid-19, who was not vaccinated because God told him—the patient—not to be vaccinated. The nurse complained to the patient, pointing out that he was taking a bed from a child and, if he had been vaccinated, most likely would not even be in the hospital, much less need intensive care. Meanwhile, the child, who also needed intensive care, had to wait on the standard paediatric ward. After 13 days, the patient left the hospital, but still refused the vaccine.

Third story: my colleagues in the Society of Christian Ethics inform me that there is a template circulating online, the point of which is to make it easy for Christians to opt out of workplace vaccine mandates. Some of these templates are specifically written for Roman Catholics, and have even been supported by some bishops.

As my title implies my goal here is to tell a selective episode from the history of debates surrounding religious freedom. Why have we arrived precisely here in our collective thinking about these topics? Here is how I aim to get to an answer. After a brief introduction, I will focus on the English philosopher and theologian, John Locke. Not because he was the only voice for toleration of his day or even the most important. Instead, what sets Locke apart is that he changed his mind on the question of religious toleration. He originally opposed any religious freedom but ended up making key steps towards the kind of religious freedom that we enjoy today. Nowadays, changing our minds is out of fashion, so his example could be worth heeding for that reason alone.

 

  1. From Natural Law to Taste

 

Prior to the sixteenth century, Christians thought of ethics and politics teleologically. That is, if you want to know whether something is good, you need to know what it is for. Is that a good beer? It depends on what beer is for. Is he a good goalkeeper? It depends on what goalkeepers are for. Same for judging good marriages, good armies, good priests, good laws, and good princes and queens. Add these together—if you had a good marriage, were served by a good priest, lived under a good ruler, and had plenty of good beer—you would tend to be happy. You could hope to achieve the summum bonum of humans. Why did the universe work so neatly? Because God created the universe for, among other purposes, human happiness.

This didn’t mean that Christians everywhere agreed. Returning to the marriage example, how many wives makes a good marriage? One or more than one? Is Trappist beer better than other beers? People disagreed, but they tended to disagree within this teleological framework.

However, three very important developments changed this conversation in key ways. The Protestant Reformation, The Thirty Years’ War, and the diaries of global explorers conspired together to suggest that people are made happy by different things. Different systems of law seemed to work for different territories, and people seemed to be more or less happy. Some people—Protestants—allowed their priests to marry, and that worked for them. Some indigenous people of South America, European explorers reported, practiced euthanasia in times of famine, and that seemed to work for them.

No one put the consequences of this in a more clever and pithy way than John Locke. He was not always the best writer, so this passage stands out:

 

The mind has a different relish, as well as the palate; and you will as fruitlessly endeavor to delight all men with riches or glory as you would to satisfy all men’s hunger with cheese or lobsters; though very agreeable and delicious fare to some, are to others extremely nauseous and offensive. Hence it was, I think, that the philosophers of old did in vain inquire, whether summum bonum consisted in riches, or bodily delights, or virtue, or contemplation: they might have as reasonably disputed, whether the best relish were to be found in apples, plums, or nuts, and have divided themselves into sects upon it. (Locke, 1975, 2:21.56)

 

He is here mocking the splintering Christian denominations of his time, as well as the philosophical schools of ancient Greece and Rome, by comparing them to Fruit and Nut Fan Clubs. At first glance, it might appear that Locke is endorsing moral relativism: “Some people like kindness, others like lobster, but who’s to say which is right? It’s all a matter of taste.” But Locke is no relativist, and so his point here is a narrower one. Because happiness is itself a matter of taste, and taste is arbitrary, then it cannot be equated with moral rightness.

One way of telling the story of political and moral theology’s fate in modernity is as a series of, mostly unsuccessful, attempts to preserve Christian natural law in the face of this challenge. However, the lesson for us given our topic is: if purpose-based or teleological thinking is broken—conceding this is Locke’s point—we need some sure and certain way to navigate disagreement. Notice what Locke doesn’t consider: preserving some modified version of Christian natural law that replies in a measured way to some of its challenges. But he does not consider that option. Nor, for the record, did Kant and Mill, the other two-thirds of the modern ethics boy band.

As a Christian (of sorts), Locke could have responded to the challenge in any number of ways. The mere fact that some people like cheese and others prefer lobster doesn’t entail that all tastes are arbitrary. Sure, cheese and lobster could be fine for some, but no one enjoys eating dirt or rocks. If they do, this is typically taken to be a sign of illness. But this was not how Locke responded to this challenge, and most Christians of the era followed suit. Natural law couldn’t cope with the needs of the age. Why natural law was believed to have failed in this respect is less clear. Most scholars point to the disruptions of the Civil War in Great Britain and the Thirty Years’ war on the continent.

In my own reading, I suspect that the lure of Isaac Newton’s physics had much to do with the decline of natural law. In the realms of ethics and politics, the previous agreements could never provide the certainty of a deductive science. And if Newton could provide certainty with his theory of motion, what stood in the way of the same certainty being achieved with a political science? While in fact, lots of things stood in the way of such an achievement, the thinkers of the 17th and 18th-century still hoped for mathematical certainty, unreasonably so.

By way of a brief, albeit relevant, tangent, it should be noted that this century was also a time of plagues and epidemics. By this point in our current pandemic, everyone has heard the stories that it was because Newton was quarantining during the Great Plague that he invented physics. Usually, the story is told with the following emphasis: Newton discovered gravity while in lockdown, so what are you complaining about? But I think that there could be a deeper significance to be found here. Locke was a physician and studied plague victims. It is interesting to compare his reaction to the plagues of his time to Covid-19; there is nothing of our recent xenophobia to be found in Locke.

What he saw as the most dangerous was not foreigners but what he called “enthusiasts.” Historically, the term was used as an insult for the populists who were behind the English Civil War, but Locke had in mind those enthusiasts who had somehow acquired influence and then tricked anyone who would listen that they, the enthusiasts, were serious intellectuals. The “day-labourers and dairymaids”—Locke’s term for the common people—had little time or resources for the intellectual life, and he was sympathetic to them. But he really hated those who would take advantage of the labourers in this way. If there were tricksters like that around during the Great Plague of London, the quest for mathematical certainty makes more sense, because it raised the stakes of, what we now call, disinformation. This is incredibly important for understanding how Locke responded to the right of conscience in a conveniently relatable and relevant way.

 

  1. Why Religious Freedom Couldn’t Work: Football Colours & Limited Government

 

This, finally, gets us to our topic today. The sorts of questions that they were asking in the 17th century may seem oddly familiar to us now: may the government set rules for the clothes that citizens wear? What if a church requires animal sacrifice—or even, human sacrifice? Can the government ban that? How about a law requiring prayer or Sabbath-keeping? If the government cannot demand that from those who object, what’s to stop citizens from objecting to all sorts of laws? And if I, as a Christian, tolerate your worship—say, as a Muslim or Jew—doesn’t this suggest that I’m not really committed to the Christian God? If one were to answer these questions today, odds are that one would give Locke’s answers without realizing it. But simultaneously, one might have realized that our usual answers have gaps; areas where they don’t fully solve the dilemma. And those gaps, I will argue, are surprisingly often the sort of questions that lay behind a collection of essays such as this, that explain why the volume in your hands could even be necessary after all these centuries. Our automatic, default answers, have holes and the holes correspond to a certain set of related questions today. That cannot be a coincidence.

Why did Locke initially oppose religious freedom? There are two primary reasons. The first might be called the No Football Colours Rule. I once took my daughter, Hannah, to a bowling alley in Scotland. She noticed a sign on the door and asked what it meant: “No Football Colours on Match Days.” It took me a while to understand. Apparently, the owners had found from past experience that if I show up in my blue Glasgow Rangers hat, and you in your green Legia Warszawa jersey, we will probably start a brawl with one another. The intuition at play here is that, diversity is a threat to peace. As Juvenal, the Roman poet, put it: “each party is filled with fury against the other because each hates its neighbours’ god, believing that none can be holy but those it worships itself” (Locke, 1997, p. 8). This isn’t a principled philosophical or theological argument. It is based on the prudential calculation that, on balance, diversity breeds contention and contention breeds war.

Locke’s second reason for opposing toleration is this: there is no such thing as limited government. This sounds like an odd claim, coming from one of the writers that we most associate with limited government, but it is sound reasoning given his premises at the time. The argument has two components: (1) Governmental authority must be absolute, for there is no available conceptual or theoretical apparatus by which authority can be limited without undermining it altogether and (2) granting exceptions for diverse religious practices violates the government’s authority and thus threatens civil peace. The first of these points may remind us of Thomas Hobbes, and indeed, it has sometimes been taken as evidence that Locke was Hobbes in sheep’s clothing. Yet his reasons are more subtle than that of Hobbes. The manner of worship should be relinquished into the hands of the ruler as part of the social contract, precisely because those details are not essential to our salvation. Just as we give up our freedom to drive on the “wrong” side of the road when we contract together to form a government, we also give up our freedom to worship in the “wrong” way.

The second point is the more forceful. Supporters of religious freedom had argued that it was wrong to “impose upon” the consciences of others. Locke replied to this claim, “tis true, ‘who would have his conscience imposed upon?’” But this cuts both ways, for it is equally true, “‘Who would pay taxes? Who would be poor? Who … would not be a prince?’” (Locke, 1997, p. 22). Where is the limit, Locke asks? Allowing religious diversity would open the floodgates of anarchy, for whenever someone did not want to obey a given law, they would simply claim a religious exemption. Rather not pay your taxes this month? Claim that God told you not to. Rather sleep in on Monday? Invent a religious holiday.

By thinking that some would resort to such trickery, Locke reveals himself to have a very cynical view of people. My point in highlighting this is not that Locke has a low view of the average person’s virtue, but rather that this indirectly shapes what he was looking for in a solution to the problem of religious toleration. It must be immune to phony claims. Why? Because some people are devious. Furthermore, any adequate solution cannot rely on the wisdom of the judges enforcing the rule because judges are people too and, therefore, some are devious. Locke has his own examples of trickery but let me update the examples for our century.

First example: in the UK, most of the major grocery store chains ask customers to lower hoods from hooded sweatshirts to dissuade shoplifting. Several years ago, one young Englishman didn’t want to comply when he was in Tesco, and had a clever way out of the rule. Or so he thought. He said, “I am a faithful Jedi knight, and my religion forbids me from removing the hood of my Jedi robe in public.” As you would imagine, this made headlines. Unfortunately for this one aspiring Jedi, Tesco’s customer service department had even bigger Star Wars nerds than him. They responded with a list of scenes in which master Jedis appear in public without hoods; Tesco cited Yoda by name.

Second example: a Tennessee man said he had a religious compulsion to wear a chicken suit to his upcoming court appearance. The judge was not amused.

Final example: I once met a couple on the train to Rome. They assured me that, although they were not racists themselves, Muslim women shouldn’t be allowed to wear head coverings because they could use that as a disguise to steal diamonds. I am still unsure as to why they were so particular about diamonds being the objects of theft.

The lesson to be learned from such examples, Locke thinks, is that we cannot rely on people, even elites like lawyers and judges, to separate the silly from the sincere. The rules must do that on their own, by themselves. And as things stand—or stood in 1660—no such rules exist. In fact, he created labels for these two forms of sneakiness. He calls one the Pretence of Loyalty to the Common Good (Locke, 1689, p. 25). An example of this is those who pursue religious persecution under the guise of civil order. “If Muslims wear headscarves, they’ll steal all our diamonds!” The other he calls the Pretence of Loyalty to God: those who really do threaten the common good under the guise of religion (Locke, 1689, p. 26). “God told me not to stop at this red light!” Because Locke believed society was full of such trickery and nonsense, religious freedom would be impossible. It wouldn’t work.

Then he changed his mind.

 

  1. Why Religious Freedom Might Work After All

 

If we read between the lines, it is almost as though Locke always wanted toleration to work, but he feared that it would fail. The following years took him on two trips to continental Europe, where he saw religious freedom work well. The first was a diplomatic mission to Cleve (then under Dutch control, but now part of Germany) and the second was his temporary exile in Amsterdam. In both cases he was intuitively impressed with how well toleration worked, but he could not—at least not at first—find a way to make it work intellectually. What he saw in Europe helped him see that the No Football Colours Rule was not universally true. Diversity does not always breed violence. It depends on the people. Some people (bowling alley patrons in Scotland, apparently) will fight when they see rival football team’s colours; others will not.

This left two problems to overcome before he could endorse toleration in his own context. First, Locke needed to figure out how to persuade the English to become like the tolerant Dutch whom he had met on his trips. That is, he needed to convince them that when you see a rival sports jersey, you may respond with good natured teasing, but should not throw a punch. Second, he would need a principled mechanism for distinguishing the tolerable from the intolerable; that is, how can a ruler grant freedom without descending into anarchy where people conscientiously object to taxes, obeying speed limits, and stopping at red lights? Eventually, he found a way around these obstacles, or at least thought he did.

Nowadays we are often sloppy in how we use terms like discrimination and intolerance. Locke was more careful, and this helped him overcome the first obstacle. An example of our present sloppiness will sharpen the contrast. I was born in Canada, so to get British citizenship, I was required to complete a test on the country’s history and values after I moved to Scotland. The morning of the test, there was a newspaper report about a police operation arresting hundreds for child abuse. One of the officers involved said, “today’s efforts show that this will not be tolerated in Scotland.” When I arrived at the testing centre that afternoon, I paused when I read the first question: “True or False: Intolerance has no place in Scotland.” I knew not to base my answer on what the police officer had said in the newspaper. The writers of the citizenship test wanted me to answer ‘True’, but that makes sense only if we reinterpret the question as saying, “intolerance [of certain sorts of things, but not others] has no place in Scotland.”

Locke recognized this nuance. In the Netherlands, he had discovered that the Dutch placed religion in the box labelled “tolerable because it’s like allegiance to football teams” and not in the one labelled “intolerable because it’s like child abuse.” Locke’s problem was: how do I convince my readers to shift religion from the intolerable box, where they currently have it, to the tolerable box? His solution is very shrewd, theologically subtle, and indicative of his Protestantism. It is also not the most important move he makes for today’s conversation, so a lengthy discussion of it must be saved for another essay (Perry, 2017, p. 130). Rather, his solution to the second obstacle is the most important for our discussions about religious freedom today.

Remember the second obstacle: how can we say that the ruler cannot command some things (things that violate conscience) without, in effect, undermining governmental power altogether? But remember too that people are sneaky and could falsely claim conscientious objections to get what they want: money, power, or the right to dress like a chicken. We need a principled mechanism for distinguishing what falls under the government’s legitimate purview and what does not. If we had that, we would be immune to the pretences, or so Locke thinks.

Locke believes that the sole reason humans have governments is to protect property rights, understanding “property” in the widest possible sense, and that religious beliefs cannot interfere with property rights, because religious belief is similarly limited to what promotes, in his words, “the salvation of souls”—which in a characteristically Protestant way equates with sheer belief (Locke, 1689, pp. 46-47). Now, we have our mechanism and now, Locke concludes, religious freedom is possible.

 

  1. Locke’s Epidemic Examples

 

Let me flesh out how this could work by offering two of Locke’s own examples, which both concern—in a helpful way for our topic today—tension between religious belief and infectious disease. The first example concerns baptism.

 

let it be granted that the magistrate understands washing [of infants] to be profitable to the preventing of a disease and esteems the matter weighty enough to be taken care of by a law. In that case he may order it to be done. But will anyone therefore say that a magistrate has the same right to ordain by law that all children shall be baptised by priests in the sacred font [for] the purification of their souls? The extreme difference of these two cases is visible to everyone at first sight. (Locke, 1689, pp. 30–31)

 

The second example concerns sacrifice. This example is still an all-too-common one used in debates about religious freedom: ok, if the government must tolerate that, must it tolerate a religion that sacrifices humans? To which Locke writes:

 

I answer … No … These things are not lawful in the ordinary course of life, nor in any private house; and therefore neither are they so in the worship of God … But, indeed, if any people congregated upon account of religion should be desirous to sacrifice a calf … that ought not to be prohibited by a law. [Whoever’s] calf it is, may lawfully kill his calf at home, and burn any part of it that he thinks fit. For no injury is thereby done to anyone, no prejudice to another man’s goods … But … if the stock of cattle that had been destroyed by some extraordinary [epidemic then], in such a case, [the ruler] may forbid all his subjects to kill any calves for any use whatsoever. Only it is to be observed that, in this case, the law is not made about a religious, but a political matter; nor is the sacrifice thereby prohibited, but [only] the slaughter of calves. (Locke, 1689, p. 42)

 

Let’s unpack this a bit. The solution is premised on separating the religious from the political, understanding “religious” to mean one’s afterlife and “political” to mean property rights. The act of washing could influence rights-bearing but baptism, so called, could not. So also, for sacrifice. Sacrifice is something that could affect the afterlife, which must be conceptually separable—if this solution is going to work—from the act of killing cows. It is as though religious acts are invisible to the government. The magistrate cannot see a baptism or a sacrifice taking place, only the acts of washing and killing.

With this in place, a workable theory of religious freedom is complete. What we typically take for granted as common sense comes to us largely via elements of this proposal. Despite the widespread acceptance of this solution by religious and secular alike, the real-life controversies that it was designed to avoid persist. The holes in this solution are fairly easy to see, and if one cares about religious freedom, one ought to be dissatisfied.

Now the careful reader might reply, “No, indeed I do care about religious freedom, but I’m not dissatisfied. So what if some old Englishman has a dissatisfying view of toleration? We have moved on a lot since Locke’s time. His view is not my view. My view is better.”

I trust your view is better. But it could be easier said than done. Locke succeeded by playing fast and loose with a very Protestant set of theological presuppositions, one which is too Protestant even for many Protestants nowadays. Without buying into those presuppositions, the solution either doesn’t work at all, or works very shakily. Even setting the theology aside, there are troubling threads that run through the whole of the tradition. The trouble isn’t limited to liberal Protestants like Locke. The thread continues in religious sceptics such as John Stuart Mill, American Jesuits like John Courtney Murray, and even quasi-Episcopalians like John Rawls. This set of traditions has so shaped our collective political cultures that thinking our way out is difficult.

This fact, in turn, raises the stakes for this closing, more theological, section. If there are problematic elements across a range of traditions of toleration, elements that we struggle to shake, how should religious believers think about these topics if they are to be faithful? Put another way, the previous sections describe how many of us think about religious freedom. The next section ventures some thoughts about how believers should think about it.

If you are Catholic or atheist and you only know one thing about Locke, it is likely to be that Locke didn’t tolerate Catholics or atheists. The tradition quickly took care of that oversight by saying, in the words of Thomas Jefferson, “where Locke stopped short we may go on” (1943, p. 945). He further states elsewhere, “It does me no injury for my neighbor to say that there are twenty gods or no God; it neither picks my pocket nor breaks my leg” (Jefferson, 1984, p. 285). In expanding the scope of the tolerable, however, the criteria didn’t expand. It is still all about property rights—avoiding pickpocketing and leg-breaking.

This is fine, as far as it goes. Both atheists and Catholics should be tolerated. However, by expanding the scope of the tolerable, we quickly encounter another problem. From a social scientific perspective, the concept of religion is notoriously vague. An anthropologist I know, who is also a priest, challenges his students to provide a definition of religion that overcomes what he calls the Buddhist problem and the Cosplaying problem. In short, a definition that includes Buddhists, who don’t believe in a deity but should still count as a religion, yet excludes social practices like cosplay, serious engagement in MMORPG (online gaming), and football fandom.

Some lawmakers and courts, including at points the U.S. Supreme Court, have attempted to do without a concept of religion, preferring to treat all conscientiously held beliefs alike. This works fine until the Justices meet the Tesco Jedi and the Tennessee man with his conscientious commitment to a chicken suit. This recalls the third COVID story from before, about the template for anti-vaxxers. This template was created by an enterprising young woman who got ordained online, and for a fee, would endorse any claims from anyone who didn’t want the vaccine. This is precisely why the template drew the ire of my colleagues at the Society of Christian Ethics. By not inquiring into the underlying theological reasons for a conscientious claim, it’s not much different than the Tesco Jedi. In short, it’s silly and the silliness undermines more serious claims.

What is the alternative? In the liberal tradition, conscience comes to mean whatever one wants. In the Christian tradition, conscience has a very particular meaning. For example, Roman Catholics can study the Note posted by the CDF on the Vatican website explaining how, even for those vaccines whose research used stem cells from aborted fetuses, using those vaccines is an instance of passive material cooperation, and therefore permissible (Note 2020). Without a toolkit capable of carefully parsing such dilemmas, it becomes very difficult to separate the serious from the silly, the conscientious pacifist from the Jedi. Thankfully, religious traditions do have such toolkits.

However, we must not overlook how the use of such theologically rich toolkits weakens the very thing that got the tradition off the ground in the first place. A world in which natural law was overwhelmed by pluralism needed a more sure and certain mechanism; one that renders it immune to phony claims. Or so the big names of early modern philosophy reasoned. The only way to be immune to spurious claims is to employ a math-like mechanism that doesn’t rely on wisdom or prudence. Locke found, or thought he found, such a mechanism by asserting that religion simply equates to the afterlife, and civil government simply equates to protection of rights. It was part of the design that sincerity of belief was invisible to judges and rulers. It’s not hard to have sympathy with what the thinkers of the 17th century were trying to accomplish. They feared that if it was up to judges or priests to weigh conscientious claims, what would stop the judges from making phony claims themselves? Should it be up to a bishop to say whether Dorothy Day’s pacifism was a sincere part of her Catholic faith or her anarcho-socialism?

 

  1. Conclusion

 

By this point, I feel like I have been delivering only bad news, diagnosing rather than curing. In fact, I have some tentative ideas for ways forward. Three ideas to be precise; two for my fellow Christians and one for anyone willing to listen. First, it ought to be part of Christians’ job to call out each other for silly claims, or even questionable claims. With regard to the California man who claims God told him not to get vaccinated, it should be expected that his friends or pastor press him. How did God speak to you? Did God provide any reasons? If not, perhaps you misheard? If so, let’s hear them. What about the general Christian duty to protect the most vulnerable, some of whom cannot be vaccinated? That isn’t meddling in another’s faith; that is true friendship.

Second, there is one strategy that ought to be avoided at all costs. Remember how the Lockean solution held that “religious” concerns were invisible to the civil authorities. The magistrate could see rights violations, like killing cows and spreading disease by failing to wash or, to update the example, by not wearing a mask. The magistrate could not perceive anything else. In recent years, this has led to a disreputable strategy: Christians gerrymandering purportedly empirical evidence to allow the government to “see” alleged rights violations. This has been especially common among American Protestants, but is not unheard of among European Catholics. It typically runs something like this: adoption agencies are justified in discriminating against gay or lesbian parents because of this or that sociological study that shows that their children grow up to be juvenile delinquents or some other such nonsense.

Admittedly, this has the allure of truth—who can argue with science, after all?—but remember the point of Locke’s relish quote. The point was to undermine the public plausibility of natural law and he was surprisingly successful. If Christians make such arguments now, it by necessity is lost in translation. The traditional Christian natural law for marriage or parenthood is premised on a vision of flourishing that cannot be translated to the lowest-common-denominator of modern subjective property rights.

Thirdly, lastly, and for anyone willing to listen, I can see why Locke wanted math-like precision to guarantee rights of conscience. If you leave it up to judicial discretion, the rights will not be as certain. But on the downside, we find something that Locke shares with another John. John Locke and John Rawls each realize, up to a point, that they cannot fully disentangle morality, law, and religion, at least not in the tricky religious freedom dilemmas that concern us today. Yet they remain adamant that even the tricky cases can be made solvable by means of neutral principles, specified in advance of particular cases.

This means that both voices in this “Johannine” tradition leave us with a similar problem, arising from a similar source. They are both opposed to ad hoc or case-based solutions to disputes about the proper bounds between religion and government. We can readily see why they would prefer principled solutions to ad hoc ones. But wanting a neutral, abstract, principled solution does not mean one really exists. Indeed, in light of ongoing conflicts, it now appears increasingly naïve to hope that all imaginable future theo-political disputes can be solved so straightforwardly. It would be better to acknowledge that some disputes can only be solved ad hoc.

A closing real-life example, which many of you will know. In 2006, a Christian woman was told that wearing a cross violated her employer’s uniform policy, even though Sikh men were allowed to wear turbans and Muslim women allowed head coverings. The British employment tribunal who ruled against her did so partly on the grounds that wearing a cross is not specifically required by Christian teaching in the way that head coverings are required for Muslims and Sikhs. The tribunal’s reasoning rejects the Lockean principlist approach. They did not secularize the assertion “honours God by wearing a crucifix” into the more general “wants to wear jewellery.” If they did that, they would have bracketed-out of consideration the factor that they see as important, that is, that for Christians wearing a cross might be a preference, but not a conscientious requirement. The eventual ruling in her favour could have done a better job of avoiding this principlism. For example, they could have noted that she is a Coptic Christian and as such could have unique liturgical traditions that venerate the cross.

However, that raises another worry that I already mentioned: the spectre of judges doing theology. But the specifics of the case matter. It ought to matter if my objection to the vaccine is because of stem cell use or my dislike of needles. In fact, the Christian tradition of casuistry is quite at home with this sort of ad hoc reasoning. I do realize the risks of such analogical judgements. It prioritizes judicial discretion and has less place for statutory law, but there are risks with the opposite emphasis too.

 

Prof. John Perry

 

References

 

 

 

School freedom threatened

The Spanish school system presents serious problems. High rate of school failure, poor quality, lack of discipline and appreciation of effort, discouragement of teachers, excess of pedagogicalism, are just some of them. However, all these deficiencies are but symptoms caused by a more serious and fundamental evil: the lack of freedom.

The school is an institution whose purpose is precisely to educate free people, and train them with the maximum possible freedom. Nevertheless, since ancient times, there are those who have seen in the school the perfect place to turn people into mere pieces at the service of political power. The Spanish educational system has been accumulating, layer after layer, impositions contrary to the freedom of the people. The current system is actually the result of the laws and the mentality that they have imposed on the socialists. It is a system in which there are many people doing things against their professional vocation, their intellectual and linguistic preferences, their religion and even their deep convictions of conscience.

In the linguistic dimension, the imposition is brutal and evident. In Catalonia, more than half of the population, those who speak Spanish, cannot educate their children in their mother tongue. Spanish speakers are subjected there to a real political persecution. Moreover, something similar, although not so extreme, happens in other regions, such as the Basque Country, the Balearic Islands, Valencia and Galicia.

In the economic dimension, we are not doing much better. Public funding is always directed to the school centres, with the consequent subordination of these ones to the payer. Schools do not serve students and families freely, but to the hand from which the grant comes. When it comes to choosing between the interests of families and those of the government, there is no doubt: who pays is the boss. Consequently, families and students are severely restricted in their freedom to choose a school whose line could be acceptable to them.

The academic dimension offers new unjustifiable ties to our contemplation. Many are the students who would prefer, from the age of fourteen, a more practical and career-oriented education. However, they are constrained to continue with peers who have very different interests at least until the age of sixteen. As inevitable consequences come disconnection and boredom for each other, if not directly obstruction of activities and indiscipline. They are the perverse effects of excess impositions.

Finally, I will refer to the ideological dimension. The current social-communist government is trying to impose, against the opinion of a good part of society, families, students and many teachers, deeply ideological curriculum. It tries to impose on the school the gender ideology, a social-communist vision of society and an anti-religious vision of the world. Students are examined on their ideology and feelings. They are urged to adjust their morals and language to what the government understands as "politically correct." All this despite the fact that the Spanish Constitution expressly states that "no one may be forced to testify about their ideology, religion or beliefs" (art. 16).

With this invasion of the life and people moral consciences, the Spanish school does nothing but persevere in its already traditional tendency towards the annulment of freedom. Article 27 of our Constitution says: "The public powers guarantee the right of parents to ensure that their children receive religious and moral training that is in accordance with their own convictions." This article is now being flagrantly breached. Parents are being deprived of the right that this article proclaims. Our current government is making educational freedom difficult if not impossible. In fact, the government itself pretends to assume the religious (in reality, antireligious) and moral orientation of the children, taking this role away from the parents. The current minister of education, the socialist Isabel Celáa, has publicly and formally declared, "We cannot think in any way that children belong to parents" (January 17, 2020).

It is of no surprise, then, that indiscipline, violence and failure increase, while quality decreases. A school system that is oriented in the opposite direction to what should be its main purpose, the formation of free people, cannot yield better results.

In order to reform the school in an sound direction, it would be necessary to guarantee linguistic freedom equally everywhere, put funding in the hands of families by means of some form of school voucher and enhance freedom of choice of school centre. We would have to favour the freedom of teachers by liberating them from the dictatorship of pedagogicalism and bureaucratic asphyxia, as well as to favour an early choice of educational itinerary for students. In addition, of course, any attempt at ideological imposition must be nipped in the bud. In short, what we need in Spain, and perhaps in many parts of the world, is a comprehensive law of educational freedom.

Alfredo Marcos

University of Valladolid (Spain)

The material complements the project: Laboratory of Religious Freedom. Realized on its own.

Concern for religious freedom in India

Several voices have alerted in the last years about a worrisome tendency in India to persecute religious minorities and to limit their constitutional freedoms. Possibly among these voices a recent article published last December in the New York Times rang all the alarms and made clear to everybody the extent and implications of such a dangerous drift1.

The article is not the only source for concern. Just browsing in a search engine in the web about “Christian persecution in India”, we find many notices and even a Wikipedia entry detailing such scenes of persecution, which apparently started quite recently, and are related with a wave of Hindu nationalism and a new political climate.

The list of grievances and attacks to Christian churches of different confessions is large. We learn from the published news that a rationale for this misbehaviour is a new law that forbids activities aimed at encouraging conversions to other religions, a serious limitation of religious freedom. This law offers justification and an alibi for any sort of attacks and harassments on churches, pastors and believers, and especially against those who convert.

What is of particular concern is that as many describe India as the “largest democracy in the world”, even if for several observers somewhat flawed, this new ‘style’ could set some standard in the way to deal with religious freedom, limiting its range in the name of national and identity values. Such a trend would mean that we can in the practice conflate, on the one hand, the political system, with its periodic free elections, with its judicial controls; and, on the other, the sphere of religious allegiances or loyalties, which would be seen as belonging to the State and its interests and structure. This trend is particularly annoying because it means to move back from the modern liberal secularization model that triggered the differentiation between the political, the economic and the religious realms, to fall into a pre-secular model of State control and management of the religious sector, limiting freedoms and patronizing a religious expression in detriment of others.

This move is particularly tempting for other countries, and it is clearly associated with authoritarian and populist governance expressions around the world. Religion is then used as a mark for national identity and for ensuring political support and loyalties. Religion looses its own status as an autonomous instance to live and experience communication of transcendence. A religion serving other interests, especially those related to power or money, becomes a flawed expression unable to accomplish its own goals and meaning.

The chronicle of the abuses that informal groups perpetrate against religious minorities in India often count with the support and even complicity of legal schemas and policies aimed at reducing the possible incoming influence of alternative religious groups. This means to put back the clock of history and returning to times in which religion served just national and political interests. Once more it becomes more obvious that religious freedom is a clear indicator or a proxy about the quality of democracy: when religious freedoms suffers, the entire democratic system and human rights system suffers and deteriorates.

 

o. prof. Lluis OVIEDO

1 https://www.nytimes.com/2021/12/22/world/asia/india-christians-attacked.html

The material complements the project: Laboratory of Religious Freedom. Realized on its own.

Religion and culture in the context of religious freedom in education

Recently there has been a lot of discussion about cultural events inspired by various religious traditions and their presence in public space. Due to the majority of the Roman Catholic religion in Poland, these are mainly associated with Christmas representations (so called „nativity plays”), the organization of Christmas meetings and the temporary presence of symbols of these important Christian holidays, such as crèches showing the moment of the birth of Christ. Does this presence matter for the cultivation of religious freedom? Why, however, there are voices that question their legitimacy and cultural role, accusing them of alleged indoctrination, although the same people often - as social media shows - support iconoclastic theatrical performances that undermine the dignity of believers and their values?

This disproportion is becoming more and more visible and many people report to the Information and Consultation Center run by the Laboratory of Religious Freedom, looking for information and interventions due to restrictions on the freedom to express their faith and religious views, especially in schools and kindergartens, during the Christmas period. This often happens under pressure from organizations - foundations or associations that try to eliminate the nativity play or crèches, treating them as an ideological factor, and when one of the children doesn’t want to participate in the event, they demand that the entire play be removed? Is that right?

In order to clarify these issues, it’s worth recalling that the school and the upbringing process carried out there is a „support” (not „replace”) for parents who have the right to raise their children based on their values, and the role of the school is to help them in this. The upbringing itself is not free from axiology, it’s based on specific values, which are also defined in the educational law, which explicitly talks about upbringing based on universal Christian values. These are values which, without excluding anyone, constitute the basis of civilization and, through their emphasis on the inviolable dignity of person, regardless of their religion or ethnic origin, defend the rights of all students. The presence of religion in school, legally guaranteed and being an expression of a positive understanding of freedom as freedom to profess religion, is realized not only in the lesson called „religion”, but this axiological perspective can be passed on in the entire educational system, in other subjects and during various educational activities1.

For this reason, the mere presence of information about religion, symbols and cultural expressions is not an indoctrination, but a presentation of an essential horizon on which and thanks to which many social and historical phenomena acquire their full meaning. Therefore, organizing nativity plays and placing crèches in schools, hospitals or offices, information about holidays of followers of other religions attending school, is a better move than the aim of eliminating everything that’s religious, resulting from the ideological premises of secularism. It teaches tolerance and respect for others: not at the cost of removing an important dimension of human life, which is ones religiosity, shaped parallel to intellectual competences, but precisely through this expression. Marginalizing and obstructing the realization of this religious freedom right by preventing student from Christmas meeting in class or singing Christmas carols is, in fact, a violation of religious freedom and an educational disadvantage, that takes from children an important cultural roots.

Failure to know important religious truths or the prohibition of displaying religious symbols, which after all have become part of Polish culture, a significant justification for many historical events that stem directly from religious motivation, is nothing other than impoverishment and limitation of the development of national culture and personal expression. Fortunately, these are not large numbers on a national scale, but puzzling is, that often where there are attempts to eliminate a cultural tradition resulting, for example, from Christianity, at the same time initiatives are introduced in schools that promote the gender ideology in the form of controversial campaigns that invade in terms of gender identity, which is supervised by parents, and such initiatives take place without their consent.

The school should prepare a young person for many situations, including those that will be related to ethical and religious choices, therefore it’s imperative to strengthen the presence of the religious dimension, conducive to integral education and upbringing, and not to marginalize it. After all, it’s all about the common good, that is, creating conditions for the growth of all students, including religious ones. Therefore, the appointment of religion lessons for the last hours of the school schedule results from ideological prejudices and treating religion at school as an inferior subject2, and the jurisprudence of the European Court of Human Rights suggests that if a country recognizes the presence of religion at school, it should ensure access to this education3. So, the answer to the question of how to present religious content leads us to wider social issues and care for integral education, which is based on respect for man and his religious exploration.

Many contemporary thinkers, especially within the so-called post-secular trend, points out that religion and culture cannot be separated in European culture4. It’s like a shirt that stuck very tightly to the body. If we tear it off, then - following this metaphor – there’s a risk that we will tear out essential parts of the body. It will be not so much an expression of freedom as depriving it, because - to refer to the examples cited - looking for the consensus of everyone in order to be able to conduct a nativity play at school, which are not a profession of faith, but getting to know it and bringing it closer (non-believers have an opportunity to get to know the beliefs of their peers believers), misses the point, because such initiatives foster such an important idea of tolerance and respect. It is worth teaching these two values not by excluding, but by showing religious content. This ensures that there will be no future attempts to force and eliminate or discriminate against people on the basis of their religiosity (or lack thereof). Thus, it contributes to building a culture of encounter and openness, which is a measure of a mature civilization.

It is worth remembering when someone wants to deprive and cut off the cultural and axiological roots of children, not allowing or ridiculing holidays initiatives in our schools. The case concerns religious freedom, which allows freedom to be manifested, not deprived of it.

Agnieszka Brzezińska Ph.D

Chopin Centre in Szafarnia

Bibliography:

Jabłoński P., Kaczor J., Pichlak M. (eds.), Prawo i polityka w sferze publicznej: Perspektywa wewnętrzna, Digital Library of University of Wroclaw, Wrocław 2018.

Mazanka P., Źródła sekularyzacji i sekularyzmu w kulturze europejskiej, UKSW Publisher, Warszawa 2003.

Roszak P., Horvat S., Wółkowski J., Microaggressions and Discriminatory Behaviour Towards Religious Education Teachers in Polish Schools, „British Journal of Religious Education” 43 (2021), 3, p. 337-348.

Sobczyk P., Wolność sumienia i religii w Konstytucji Rzeczypospolitej Polskiej - postulaty Kościoła katolickiego, „Prawo Kanoniczne” 3-4 (2008), p. 371-383.

1 P. Sobczyk, Wolność sumienia i religii w Konstytucji Rzeczypospolitej Polskiej - postulaty Kościoła katolickiego, „Prawo Kanoniczne” 3-4 (2008), p. 371-383.

2 Roszak P., Horvat S., Wółkowski J., Microaggressions and Discriminatory Behaviour Towards Religious Education Teachers in Polish Schools, „British Journal of Religious Education” 43 (2021), 3, p. 337-348.

3 More about the jurisprudence of the ECtHR in: Ł. Mirocha, Wolność a równość w orzeczeniach Europejskiego Trybunału Praw Człowieka i polskiego Trybunału Konstytucyjnego dotyczących wolności religijnej, in: P. Jabłoński, J. Kaczor, M. Pichlak (eds.), Prawo i polityka w sferze publicznej: Perspektywa wewnętrzna, Wrocław 2018, p. 111-123.

4 More on the topic of post-secularism in: P. Mazanka, Źródła sekularyzacji i sekularyzmu w kulturze europejskiej, Warszawa 2003.

Freedom, democracy and religion

Freedom consists in a constant and eternal Love of God.

Baruch Spinoza

  1. Democracy and religion

Of course, democracy has as many definitions as there are researchers of political thought, and perhaps even politicians themselves. However, it’s the same with religion. It also – as argued Fr. I. M. Bocheński – can’t be defined in the same way as you can’t define „vegetables”. It has been believed for quite a long time (and some still believe it) that it’s easiest to build democracy without religion and to exclude all religious content from the public sphere. One of the greatest philosophers of politics, John Rawls, also believed it, and changed this view only towards the end of his life. At that time, it seemed that the two dimensions of existence which they reveal and which they relate to cannot be reconciled. The first (democracy) relates to the horizontal dimension of our existence, the second (religion) relates to the vertical dimension. They are so incongruous that it would be better for a democratic system to completely remove the vertical dimension along with religion. Religion was thus excluded from the formation of the public sphere and participation in democracy, and was found to be antagonistic to it. Consequently, freedom from religion have become the slogan, and the conviction that it will disappear by itself, and that the wall of separation should get higher and higher. Moreover, it seemed that the only way for religion to be present in a democracy was somehow for it to be pushed into the private sphere. And for a long time we had a world of democracy without religion and… religion without democracy. The result is – experienced today– the degenerate democracy and the lost religion.

  1. The crisis of democracy without religion

Contrary to these statements, democracy and religion create fullness, and the vertical and horizontal dimensions of our existence not only don’t negate each other, but also combine into a whole of kind. Religion is also essential for the condition of a democratic state and for the fate of democracy. Democracy, in turn, is also essential to religion as it protects it from destructive fundamentalism. Each of these elements seems necessary to protect and enhance the other. It’s indicated by the degeneration of democracy, and by a distortion of religiosity alike, if there’s a radical separation between them. Today, it is increasingly recognized – even by Jürgen Habermas – that democracy may not survive if we reject religion and exclude it from the public sphere. But when democracy is lacking, religion is falsified as well. Attenuation in one area causes disturbance in the other. And it’s not only about the weakness of mechanisms of representations. Democracy without religion can easily turn (and does) into party tyranny, which turns the democratic system into a mere game of interests as the party elite seizes power over the entire political system. Turns out then, that those who have the power and make the law also have less and less in common with those they were supposed to represent. The people are only supposed to justify the legality or legitimacy of power, not really to exercise it. The party elites themselves become political sovereigns and only during elections do they strive for the opinions and votes of the people. All views that do not agree with the will of such an „elite” are marginalized, ridiculed and discriminated against on ideological grounds. The existential crisis of democracy is undeniable today and it’s increasingly recognized that the will of the general public does not fall within the limits of what is acceptable by party systems (Sloterdijk, 2011, p. 214). On the one hand, the question then is how to be protected against the tyranny of the majority – the tyranny of the will of the people, as Mill said – (Mill, 1959, p. 132), that is, a situation where the majority is wrong and is guided by their own selfish interest, but has won the election? On the other hand, how to save the democratic system so that it doesn’t serve to strengthen privileged political and financial groups? There’s no doubt that the judicial control system serves this purpose (Mounk, 2019, p. 96). Sometimes, however, even it is not enough, because judges are only people and they can’t help isolating the entire system from the will of the general public. Such a falsified democracy, which turns into an ideology of destroying tradition, morality and religion, also desubjectifies people in favor of lobbyists, institutions, banks, ideologized parties, etc. And although they all talk about democracy, it’s only an imitation, because at its base there’s selfishness, which becomes „the key to a more nearly perfect social contract” (Wilson, 1988, p. 197). Then its artificial limitation from the outside is sought, which also weakens it. The seizure of power by party, financial, ideological, etc. elites in such a falsified democracy leads to some contempt for person, making them only a voting machine at the appropriate times of elections. To restore democracy to its value, therefore, means to restore people’s subjectivity and to ensure that there’s as little contradiction as possible between the general will and the rights of the individual.

Not only, however, de-subjectification is a threat in democracy when, instead of a relationship with religion, it’s permanently associated with lobbyists, institutions, banks, ideological parties, etc. Then there is also a threat that can be described as a crisis of ideas, values, and approval of axiological nihilism. Democracy, devoid of any connection with religion, ceases to be ideological and reveals its destructive role in the area of values, or – in a milder form – can’t guarantee the foundations of the applicable values. Democracy then neither creates values nor enhance them, nor also justify the obligation of a specific action or human dignity. Instead promotes a pluralism of values and moral attitudes. Truth only becomes the consent/agreement of citizens and the will of the dominant majority, moral values are associated with political gains, justice means only that, what results from a judge’s decision, etc. All this reveals that such a degenerate democracy is neither ideological- nor value-creating, rejecting religious visions of good and truth, all it can offer is „a common choice”, while recognizing that such an election may (also commonly) be changed at a different time in the next elections. It can be said that in all this democracy uses the old, religious justifications, but at the same time „officially”, or politically, relies only on human relativism and the recognition that truth and morality are only the results of human desires and electoral voting. Thus, it emphasizes the primacy of the individual and their unrestricted freedom/lawlessness. The imperative of self-fulfillment becomes stronger than anything else.

3. The distortion of religion without democracy

It’s easy to notice that democracy is not served by the philosophy of materialism, let alone relativism and nihilism. Excluding rational religious reasons from public life clearly disturbs it. An ideological democracy de-subjectifies people and threatens values. At the basic level of its existence conditions, it grows out of freedom. And if it’s absent, or if it appears in false forms, e.g. lawlessness, it turns into a destructive system of ideology. From this separation also loses religion, which without the idea of democracy turns into a dangerous fundamentalism and removes the community dimension of its existence. Religious faith is then reduced to ideology and subordinates to itself politics, economy, culture. Fundamentalism grows out of such a religion, in which truth receives absolute sanction. A religion that develops into a democratic system however may limit this transcendent dimension of the possessed truth and to state, that instead of possessing it (today, here, now), it includes only striving for it and is oriented towards such an absolute truth. Thus, democracy limits the fundamentalist pursuit of religion. Without it, there’s a danger, that an absolutistically oriented religion, becoming the enemy of freedom, will spread intolerance and aggression. Without this relationship between religion and democracy, the entire religious sphere of a person is also excluded from the possibility of free choice. The problem of religious fundamentalism, that appears more and more often today, doesn’t arise therefore from religion itself, but more from falsed religiosity and falsed democracy. You may say even more; it’s the lack of democracy and a false democracy in which a untrue image of a person appears that creates the possibility of religious fundamentalism in which freedom of conscience is not respected and religious freedom is not recognized. Religion without democracy also doesn’t accept the separation of political and religious power, but tends to identify them with each other.

4. Religion as a concern for human freedom and subjectivity

If religion determines such area in the life of a religious person that can be considered the most important for them, a certain paradox arises when it’s pushed into the private sphere and removed from the public area. by making choices, and thus participating in political and social life, and removing religion from public life, a religious man is forced to make such choices without being able to relate to what is most important to him. Namely by making choices, and thus participating in political and social life, and removing religion from public life, a religious person is forced to make such choices without being able to relate to what is most important to them. It’s assumed that all their moral, metaphysical, ideal and the like beliefs must remain „outside” of theit choices as a private matter. Then a „paradox of democracy” is created: the most important are choices, but what is most important for a religious person can’t be involved in them. Only democracy, which is not afraid of the presence of religion in the public sphere, de-privatizes religion, that is, restores its lost dimension and helps to regain freedom.

Democracy is based on people’s freedom and rational behavior. The necessary condition for its maintenance, development and protection against degeneration is, first of all, enhancement of beliefs about human freedom and subjectivity. John Paul II wrote: „the value of democracy stands or falls with the values which it embodies and promotes” (John Paul II, 1995, No. 70). However, it’s not about some abstract freedom, which is mentioned in political treaties, but about the freedom of a specific person. You may say that it’s about the personal freedom of an individual, or the freedom of a person. Religion provides the basis for enhancement of such beliefs. It guards human dignity, opposes any instrumental treatment of a person and any approach of freedom to lawlessness. Human freedom is not primarily social and political, but axiological and metaphysical. And only from this dimension can it be understood and transferred to the sphere of political choices. It’s precisely this freedom that religion realizes and is concerned about. In this way, it helps democracy to re-subjectify a person, prevents them from being de-subjctified and leads to the necessary reflection on the normative structure of society. Therefore, it’s easy to notice that it often becomes an element of criticism by all those pseudo-democrats for whom a person is only an instrument of career, wealth or power. But it’s also easily rejected by those who equated their freedom with lawlessness.

Of course, not every religion is conducive to the subjectification of person and the strengthening of freedom. Often, in political science, the freedom required by democracy is opposed to the enslavement of man, who must fulfill God’s will, as the goal of religion (Leisner, 2008, p. 98). It is then overlooked that it’s the religious principles of the equality of people as children of God that have been transformed into democratic human rights. You may say that the measure of the development of religion is the idea of freedom present in it. That is, if the God of a certain religion demands slavery of a person, their dependence, demands that they are a slave, then it’s certainly at a low level of development. It follows that democracy should not associate its future and development with every form of religion, but only with one in which God demands freedom of a person and in which they become aware of independence and are taking responsibility for themself. Only this religion restores to democracy a specific person who lives in a certain place, has their own interests, specific values and relationships with others. While reduces the idea of a universal man, neuter and indefinite, which is dangerous to democracy itself (but also to culture). Of course, the point is neither that religion is a complete remedy for the crisis of democracy, nor that it’s a treatment for overcoming all its problems, including freedom. However, it’s certainly an indication of the universal, meaning-creating dimension of human existence, without which not only democracy, but humanity in general can’t survive. Religion reveals, without – as Habermas said – „what is missing” (Ein Bewusstsein von dem, was fehlt) (Habermas, 2007) we’re neither able to live with dignity, nor create a healthy social structure. In that the principles of freedom, equality, and solidarity were first revealed, as deficiencies that needed to be supplemented in the real world, and which became human rights in a democracy. Forgetting it serves neither democracy nor freedom.

Bibliography:

Habermas J., Ein Bewusstsein von dem, was fehlt, „Neue Züricher Zeitung”, 10 February 2007.

John Paul II, Evangelium Vitae (1995).

Leisner W., Gott und Volk. Religion und Kirche in der Demokratie. Vox Populi – Vox Dei?, Berlin 2008.

Mill J. St., Utylitaryzm. O wolności, M. Ossowska, A. Kurlandzka (trans.) Warszawa 1959.

Mounk Y., Lud kontra demokracja. Dlaczego nasza wolność jest w niebezpieczeństwie i jak ją ocalić, K. Gucio (trans.), Warszawa 2019.

Sloterdijk P., Gniew i czas. Esej polityczno-psychologiczny, A. Żychliński (trans.), Warszawa 2011.

Wilson E. O., O naturze ludzkiej, B. Szacka (trans.), Warszawa 1988.

 

Prof. dr hab. Marek Szulakiewicz

Nicolaus Copernicus Univeristy

Yesterday and today. The memory of persecution and religious freedom in Ireland

There’s a curious amnesia in contemporary Ireland about religious persecution. Two anecdotes to illustrate that claim:

  1. I was celebrating a wedding in a medieval church in the Irish midlands. The landscape there is dotted with such churches, but this is one of the few that is in use today as a Catholic church. Chatting to one of the guests, I mentioned that it was a very important friary at one point, and that it was wonderful to see the same friars resident there after a long period of absence. This guest, an educated man in his 30s, looked puzzled, and asked: “Why did they leave?” Then it was my turn to look puzzled. “Because of the Reformation. The Dissolution of the Monasteries. Henry VIII and all that”. He nodded, but it was clear that he didn’t know what I was talking about. Later in the day I surreptitiously tested another few guests to see if this man was just a strange anomaly. Astonishingly, none of the younger guests I spoke to had any clear awareness of this massive turning point in Irish history, when sixteenth-century English monarchs expelled religious orders from their monasteries and priories, and dispossessed them of their goods and property.
  2. I was asked to give a tour of ‘Catholic Dublin’ to a group of students from a Catholic school situated outside the capital city. My focus was on our Dominican priory – of course! – but I planned to include also the site of a number of ‘Mass houses’, places in the city where Mass was celebrated illegally in the seventeenth and eighteenth centuries. As I discussed these sites, it was clear to me that the children were entirely unaware that Catholics during that period had limited rights. They had never heard of the ‘Penal Laws’ which limited the rights of Catholics to own land and horses, adopt children, set up schools, and, of course, to attend Mass. As I began to inform them of all this, I noticed that the children were fascinated, but that their teachers were progressively less pleased. At the end of the tour, their thanks was perfunctory, even frosty. This was not the story they wanted their students to hear.

Past generations of Irish people, especially in the wake of independence, were reared with these stories of persecution, and with a powerful awareness that the current freedom of Catholics to worship was hard won. Those who fought for that right were regarded as national heroes, above all Daniel O’Connell, ‘the Liberator’, whose statue dominates Dublin’s main thoroughfare. What has changed, then? How has this story of liberation from oppression been forgotten?

One possible reason for this radical change is that the old story was somewhat exaggerated. In his new book, The Best Catholics in the World, Irish Times journalist Derek Scally investigates this tendency of early- to mid-twentieth-century Ireland to place a simplistic account of religious persecution at the heart of its self-understanding. With the help of historians, he explains that the Penal Laws, for all their ferocity on the page, were applied unevenly, and a great deal depended on the attitude of local grandees. When revisionist scholars began pointing this out, the old story of continuous persecution and courageous resistance was bound to be questioned.

Even allowing, though, for sensible scholarly re-assessment, the popular amnesia concerning religious persecution seems disproportionate, and a fuller explanation must be sought. It’s not just that we have left behind our national story, rather, we have replaced it with another national story. In the old version, the struggle for liberation and national self-definition was one fought by oppressed Catholics against the English Crown, over several centuries. In the new version, it is the twentieth-century Catholic Church that is the oppressor, and the struggle for liberation and national self-definition is identified with more recent social battles (over divorce, contraception, abortion, and same-sex marriage). Those who adhere to this new story struggle to deal with the reality of past persecution of Catholics. It doesn’t fit the new narrative and so, it must be deliberately forgotten. Into the Memory Hole!

One of the consequences of this amnesia is the loss of a vivid sense of the possibility of religious persecution today, and the concomitant loss of active commitment to religious freedom. Other examples of past persecution now interest us, other forms of freedom now engage our support.

This is the case in post-Catholic Ireland, but I submit that the phenomenon is perhaps being repeated, with variation, elsewhere. Is secularisation undermining our awareness of the importance of religious freedom? Are post-Christian generations, who are little aware of the religious dimension of life, less likely to notice religious persecution, less likely to be enthused by religious freedom?

These are questions for others to answer. For its part, the Irish Church is beginning to develop a grassroots response to this loss of memory. Around the country, parishes and prayer groups are, without being prompted, promoting local awareness of ‘Mass rocks’, remote places where the Eucharist was celebrated during times of persecution. It is perhaps by visiting these places – silent, eloquent witnesses to real persecution and real faithfulness – that contemporary Irish people will regain a proper commitment to religious freedom.

 

Conor McDonough

 

The material complements the project: Laboratory of Religious Freedom. Realized on its own.

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