Religious Freedom Is (a) Right

The Globe’s Doug Saunders has produced a very unfortunate op-ed this morning, arguing that “religious freedom” is at best redundant, at worst positively harmful, and that Canada should not be in the business of promoting it. The occasion for his outburst is the upcoming creation of the Office of Religious Freedom within the Department of Foreign Affairs. That may well be a poor idea, even a sop by the government to religious conservatives. Even if Canada should be in the business of promoting individual rights abroad, there is no reason why religious freedom should be privileged over other fundamental liberties. Yet Mr. Saunders’ arguments are confused and go too far. It is one thing to say that the Office of Religious Freedom is a bad idea; it is another to claim, as he does, that “religious freedom” is either a useless concept or a slogan for religious bigotry and repression.

Mr. Saunders points out that “[t]he phrase ‘religious freedom’ is evoked [sic―I wonder if he meant ‘invoked’]” by all manner of intolerant groups who, in fact, want the state to repress other religious groups with whom they disagree. He argues that “the most important religious freedom is freedom from religion”―the freedom not to have someone else’s religion imposed on you by the state. As for the freedom of belief and worship, it is sufficiently “protected in constitutional freedoms of speech, thought, conscience, assembly and basic equality.” The additional category of “freedom of religion” is hopelessly vague and in any event unnecessary. Indeed, says Mr. Saunders,

the core values of our common culture, the things that make us Western and modern – democracy, equality, the rule of law – were forged through the rejection of religion and the overthrow of spiritual authority.

If there’s anything we should be doing abroad, he concludes, it’s ensuring the separation of church and state. Not fighting for “religious freedom,” whatever that means.

One wonders whether Mr. Saunders has seriously engaged with what has been said and written about religious freedom in the last 300-odd years. His claims about the history and meaning of religious freedom are badly mistaken.

Start with the history. It is not the case that democracy, equality, and the Rule of Law developed in opposition to religion. Arguably the most influential defender of such values was also one of the first great champions of religious freedom―John Locke. So were the American Founders. It would have been much more accurate to say that these values developed in parallel, indeed that religious freedom was historically the first individual freedom. The sovereignty of the individual was first asserted in matters of faith, well before it was thought of asserting it in the realm of politics too.

Now to the meaning of “religious freedom”. Like that of any other individual right, it can be said to be vague. It is not exactly clear what “freedom of expression” means, or “equality”, or “liberty”. That said, it is indisputable that freedom of religion has a negative aspect―that it is, among other things, a right not to have the faith of others imposed on you. The very first Supreme Court case dealing with freedom of religion, R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, was about that. Other rights, by the way, have a similar “negative” aspect―freedom of speech, for instance, is (or should be, notwithstanding the Supreme Court’s decisions to the contrary) not just the freedom to say what you want, but also the freedom not to say what the government wants you to say. That doesn’t detract from the importance of the “positive” side of the right. In the case of religion, we might speak, following the U.S. First Amendment, of the “free exercise” of religion, to go along with non-establishment. And free exercise of religion is not reducible to the other rights on which Mr. Saunders wants to rely for its protection (except maybe freedom of conscience, but this happens (unfortunately) to be poorly theorized and, insofar as it has a modicum of clear meaning, it refers to a protection for specifically non-religious conscientious beliefs). For example, the Sikh boy who felt a religious duty to wear a kirpan to his public school wasn’t exercising a right to free speech (his kirpan was hidden inside his clothing, he wasn’t displaying it to send a message to anyone), or freedom of association (it wasn’t about his right to associate with coreligionists, or anyone else for that matter). It was straightforwardly a claim of religious freedom―a claim, in Lord Acton’s words, “to be unhindered by man in the fulfillment of duty to God.”

That such claims by others can be abusive or self-serving does not mean that we should renounce our commitment to religious freedom. Whether it is a good idea to single it out for promotion abroad is an entirely separate question.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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