Freedom of religion or freedom from religion?

The opening of the Australian Parliament this year witnessed an historic apology to Australia’s "stolen generations" — a generation of indigenous Australians removed from their families by the State under the misguided impression that assimilation would give them a better chance in life. Apologies aside, one of the things that I found most intriguing about this historic occasion was that it began with the Lord’s Prayer. Not that the day will be remembered for this fact; but it grabbed my attention particularly as it is so commonplace these days to hear talk of the separation of Church and State. This, perhaps the most notable day in recent Australian history, began with a dedication to the Lord.

Invoking God is anathema to many liberals and socialists who eschew any mention of religion in public life. Religion, they argue, has no place in public life. The state must be neutral on matters of faith, even to the extent that religious discourse is given no credence in public debate.

A policy area where such hostility to religious discourse clearly manifests itself is bioethics — issues like embryonic stem cell research, euthanasia, and, of course, abortion. Those of us who oppose these for—not exclusively—religious reasons are accused of holding back science and women’s right to choose for partisan reasons that violate the separation between church and state. On this view, since citizens who are atheists and agnostics cannot accept the basic tenets of the belief systems that motivate our opposition to abortion and embryonic stem cell research, our views are democratically invalidated, rejected out of hand for being "undemocratic" (ie, religious). Public discourse must be publicly acceptable discourse. And, in a pluralistic society which includes agnostics, atheists, and fundamentalists, that means non-religious. Only secular reasons can enter into public debate, lest we impinge upon the hallowed separation between church and state.

The French model

This is one view of the separation between church and state. It is a civic republican view that can be traced back through Rousseau, Kant, Machiavelli, and Cicero right unto the early days of Athenian democracy. The underlying logic of this position is that citizens are free only when they are ruling themselves and that the highest form of liberty is self-rule. Democratic government is characteristic of human freedom for, under democracies, citizens rule rather than are ruled, enacting self-governing laws. In democratic regimes, the lawmaker and the subject of the law are one.

Thus, law does not bind our liberty but emancipates it, for law is not a constraint on liberty if we are the legislators of those laws at the same time that we are bound by them. In other words, if a given law can be considered to be an object of human reason, it is not properly a constraint on liberty but a manifestation of it. For the promise of democratic emancipation to be fulfilled amidst conditions of pluralism, however, the law must be amenable to the reason of each and every citizen such that the laws of the state represent the common will—the will of each and every citizen and the will of all. Only then are we free!

It follows from this civic republican idea of liberty that citizens’ private belief systems must be banished from public life. For "private beliefs" are not universally shared by citizens and, so, cannot be accepted by all. Hence, the sharp divide in civic republican states such as France, between the public and private spheres. In France this divide has become excessive. As a result of a series of events known as l’affaire foulard, ostensible religious symbols have been forbidden in public institutions with the result that Jews, Sikhs, and Muslims (amongst others) can no longer wear their traditional headdress in public schools. For all citizens must be one and identical under the civic republican model. (Religious) diversity cannot be publicly acknowledged in France, or in any other civic republican state. Which is why a French "Sorry Day" would not have begun with the Lord’s Prayer.

American exceptionalism

But there is an alternative understanding of the separation of Church and state that is not quite so blind to the private and religious identities of its citizens. It is the conception of non-establishment in the United States. Secularists and religionists alike have much to learn from duly appreciating the depth and power of the US position.

It is not an insignificant fact that the Founding Fathers of the United States left behind centuries of religious persecution in Europe at the hands of governments to come to America. Huguenots, Calvinists, Anabaptists and Puritans fled the religious wars of Europe in the hope of finding a save haven across the Atlantic where they could live in peace and freely practice their beliefs. The separation of church and state that exists in the United States exists for the sake of religious belief and its free practice.

Non-establishment is twofold in the United States. Firstly, constitutional protections with respect to freedom of religion enable individuals and communities to challenge civil law on the basis that it impedes their liberty to practice and adhere to their beliefs; that civil law oversteps its mark when it attempts to govern and control the consciences of citizens. As a result, there is a tremendous suspicion of civic "soul marking" in the United States. The government, as many Americans understand it, has no right to try to form the moral character of its citizens. That should be left to parents and communities of faith. And, in this regard, there is a sizable volume of judicial reviews on the basis of freedom of religion with respect to public education in the United States, not least of which was an exemption that Amish parents received from mandatory education requirements under Wisconsin v. Yoder. In this 1972 case, the US Supreme Court declared that Wisconsin’s requirement that children attend school until the age of sixteen unjustly interfered with the way of life of the Amish and that the requirement was unconstitutional.

Secondly, though, non-establishment clauses in the constitution prevent the United States government from ever being the handmaiden of a particular religious denomination, sect, or community. As a result, the US has quite stringent conditions on the extent to which the government can provide financial support to religiously-affiliated institutions and, from a constitutional perspective, the government can never endorse or eschew the views of any particular religious group. In light of such non-establishment clauses there have been contestations over whether the government is entitled to give tax exemptions to religiously-affiliated charities and the like. And, while the US government does support religiously-affiliated charities, it remains reluctant to provide similar support for religiously-affiliated schools in case it be seen to be endorsing particular churches as a result.

More respectful of diversity

But, notwithstanding the pedantic way in which the US judiciary and legislature has sought to do justice to the ideal of non-establishment, the very purpose of non-establishment is to protect religion from the state. On the American account, non-establishment is upheld not out of deference to some civic-republican notion of universal citizenship and the integrity of the common will but from a historically grounded—very real—fear of the evils of state-sanctioned religious persecution. The Founding Fathers were all too aware of the evils that can be done in the name of salvation when religions no longer give to Caesar what is Caesar’s but infiltrate the army of the Empire to erect the Kingdom of Heaven.

The American approach is more respectful of diversity than its civic republican counterpart. Separation between church and state exists not in the name of Enlightenment and a suspicion of "private" religion but in recognition of the value and importance of religion to people’s lives and the dangers that arise to this crucial area of intimacy from theocratic government.

It is no accident that religion enjoys a more privileged status in the United States than it does in Europe, where publicly, as former British Prime Minister Tony Blair's press secretary once said, "we don’t do religion". L’affaire foulard could not have happened in the United States while the greenback bears the mark "In God we Trust." Secularists, socialists, and Jacobin liberals may loathe the sense of importance that religion enjoys in the United States. But for those of us in other countries who value genuine tolerance and religious freedom there is much to appreciate in the American tradition.

Michael McGann is completing a PhD thesis on the philosophy of multiculturalism at Monash University, in Melbourne, Australia.


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