I want to be clear from the state: the Indiana law -- or similar laws implemented in other states -- is not a defense of freedom of religion. That right was already specified in the US Bill of Rights. It was, in other words, part of the constitutional guarantees (along with free speech, the right to bear arms, etc.) that comes with being a US citizen. In enacting this law, the government of Indiana did nothing to further protect freedom of conscience or belief and, I will argue, a great deal to corrupt it through an overt and misplaced politicization of term. Passing this act is the equivalent of PEI passing a law that says “we are now making it illegal to murder people.” It already was, one would say, this law is a waste of time.
The trickery inherent in this law is only one problem with it. The most serious problems – evident by the backtracking we’ve already seen from Indiana lawmakers – is the way it confuses conceptions of rights and what they mean. I’ve tried to blog on this in my last entry but let me elaborate this point and add in some other comments.
The second problem, then, is the confusion of rights. Here, we need to ask “what are rights and why are they important?” The answer to this question is, in fact, complicated because it depends on the type of society in which you live. In stratified societies (say, like feudal societies) rights adhered differently to different people depending on their place in the social order. Thus, a lord had different rights than a peasant. There are also traditional rights that adhere, for instance, to indigenous peoples. In some societies, members of different religions have different rights. In some societies, for instance, the state enforces laws based on specific religions (but not others). What counts as a right, then, in legal terms if conditioned by the society in which you live. We can – and I would argue should – assert the legitimacy of universal rights that meet basic standards of decency and freedom. I assert that point as an ethical principle to which I (and, I suspect, most people) subscribe. But, in practical terms – in terms of the rights that citizens actually have right now – those are dependent on their society and what their government recognizes.
Not all societies recognize freedom of religion. Some societies have and continue to have established religions that are supported by the state. Adherents of other faiths do not have the same rights as adherents of the state-supported faith. They may have restrictions on their worship, suffer from prejudices that go unaddressed, have to pay special taxes, be forced to live in certain sections of town, etc. None of these things are historically unusual, even if I (to say this again clearly) disagree with them.
The conception of right that we use in Canada and the US today is not like this. Even if it honoured in the breach (and, it clearly has been), rights supposedly adhere (in our societies) to individuals by virtue of their individuality, humanity, and citizenship. Thus, a rich person has no greater right than a worker; a Christian no more rights than a Jew; a man has the same rights as a woman, etc. We subscribe, in other words, to an ideal that all citizens enjoy the same rights and that is, or so we are often told, what makes our societies more democratic and fair.
This, however, creates problems for a variety of reasons, some of which are well documented and we don't really need to discuss. One problem it seems to create, however, is what is periodically referred to in the media as a conflict of rights. What happens when my right conflicts with your right? Who gets to win out? What is more fundamental?
This is the wrong question. Conflicts of rights occur far less frequently than we might think. In Indiana, for instance, we don't have a situation where there is a conflict of rights (freedom of religion versus equality) at all. What we have is a failure to understand what freedom of religious means.
In Canada and the US, freedom of religion is not the right to discriminate. You have the right to believe whatever you believe but your right to enact your belief is bounded by the degree to which it affects other people. Thus, for instance, you might believe that the Bible justifies the slavery of Black Americans. I'd disagree with you, but there were people who believed that. Even if you believe this, you do not have right to enslave anyone. Likewise, your religion might call for human sacrifice. Sorry, you are out of luck. That is a crime and you can't use freedom of religion to justify it or get away with.
Here is the rub. Even if we don’t like what people believe, they can believe it. They have that right. But, the fact that you have right to believe what you will does not mean that you have the right to do whatever you want, however sincerely your beliefs are held. My right does not extend to the oppression of my neighbour because my neighbour – in a democratic society – enjoys exactly the same rights I do.
What has gone on in Indiana and a number of other states is that this basic and simple understanding of what constitutes a right and the reasonable limits on it has been lost. In the name of Christianity, the government has enacted a law (which it is not supposed to do, of course, because the principle of the separation of church and state in the US) that allows Christians to discriminate against other people. In other words, it accords to one group of people the right – protected by law – to harm another group. This is a violation of the basic principles of rights in a democratic society and it is, I want to say this clearly, a step away from democracy. Rights are intended to enhance democracy in our society; not limit it.
If freedom of religion is not the right to oppress, marginalize, discrimination against other people … what good it is? Actually a lot. Rights fall into a number of different categories and accomplish a number of different goals. I probably go on too much about this in my courses so I won't here. But, freedom of religion is, oddly, designed to protect citizens from precisely the type of law that Indiana has enacted. It is designed to protect people from a the state enacting laws that favour some religious perspectives over others; that treat different people differently on the basis of belief. IOW, religious freedom is intended to ensure that what has happened in Indiana does not happen: that the state should not be, as it were, “in bed” with religion.
I’ve gone on too long so let me summarize. Several points are important:
- the freedom of religion law that Indiana passed is not needed because freedom of religion is already protected under the US Bill of Rights
- the law is actually not about freedom of religion but instead about providing legal sanction to discrimination on the basis of religious views. Generally, when the state shows favouritism to one group of people as opposed to others, we view this as non-democratic and, indeed, Indiana has taken a step away from democracy
- there is a level of misreporting when people talking about a conflict between rights (religion v equality). There is no conflict because in democratic societies all citizens enjoy the same rights, ergo one citizen does not have the right to oppress or marginalize another and assert that this is their right. Other non-democratic societies (theocracies, feudal states, for instance) allow or allowed this. Democracies do not. It is not that one right is more valuable or important than another; it is that each person is of equal value.
- Freedom of religion is, ironically, intended to prevent precisely what the government of Indiana has done. It is designed and intended to stop the state from showing favouritism so that citizens are equal. In this way, Indiana has perverted the very right it claims to uphold.
The real problem, I think, with perverting the law and conceptions of right in order to justify what is, in fact, prejudice, is that just about everyone and their dog can see through it. No one seriously believes that Indiana or Arkansas is trying to protect freedom of religion (because, as I said, this right is already protected and no one actually believes that their legislatures and executives are that dumb as to not understand that). Instead, what they see is that overt prejudice -- overtly making the argument that gays and lesbians are perverts or second-class citizens or criminals or mentally ill or despised by God -- is not politically feasible in America today. These arguments have become unacceptable to large and growing sections of US public opinion. Hence, what Indiana and other states have reverted to is prejudice by stealth: they are trying to find a way to maintain legal injunctions against gay and lesbian Americans after a slate of court rulings that say "no you cannot do that. It contravenes the Bill of Rights."
Hence, the deception but I wonder if the deception does something further. I wonder if it makes people doubt the sincerity of politicians. After all, here is a case where language is clearly being twisted for ulterior motives. If the people who run the state will do this (will, in effect, try to deceive the public) ... what does that say, some people might ask, about politics? What does it say about those who win elections? Who are supposed to represent the citizens and the state? Who are supposed to have a degree of dignity and grace.
I think, ultimately, it creates more political alienation ... and that is not good either.