Secularism and Freedom of Religion in Multi-Cultural Democracies

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"Secularism and Freedom of Religion in Multi-cultural Democracies"

William Sweet

1. Introduction:

One of the most basic rights in national constitutions and in international declarations and related documents is freedom of religion. It is a cornerstone of liberal democracies, and it is formally recognised by all the states signatory to the articles of the United Nations. Religious freedom was one of the motives for emigration to the ‘new world’, and calls for it are part of the reforms taking place in much of the ‘old world’.

Yet freedom of religion is a freedom that has been at the centre of much recent debate; in India, it has been part of the debate concerning restrictions on ‘conversion’[1][a]; in Iran, such freedom does not include what some call ‘apostasy’; and in the United States, it has been part of a number of debates, such as having Christmas trees or the Ten Commandments in public buildings, or prayer in publicly-funded schools, and the like. And this freedom has also been confronted with other values – with the value of human equality (for religions where this is not emphasized), or with the value of security, or with the value of state neutrality, and so on.

How do we address the challenges of respecting freedom of religion in democracies – particularly in multi-cultural democracies? What options are available to us? Is a policy of secularism the best way of dealing with the challenges of – and the conflicts between – this freedom and other democratic values?

In this paper, I want to discuss some of these issues with a view to determining whether some kind of secularism is the best way of dealing with religion in multi-cultural democracies.

2. Cases

Cases where we find a tension or apparent conflict between ‘the freedom of religion’ and other democratic values – or values characteristic of democratic nations – are all too common.

Once case familiar to many deals with discussions concerning the Muslim hijab and headscarf in western Europe. For example, in France, a law banning Islamic head scarves in public schools was adopted on March 3, 2004. On that date, the French Senate had voted 276-20 in favor, following a similar vote by the National Assembly, on February 10 – with a vote of 494-36. In Germany, the Bundesgerichtshof - Germany's highest court – decided in September 2003 that there could be similar bans in the Lander (states), as long as there are no state laws against it[2] – and on 9 December 2003, the government of Bavaria unveiled a draft law restricting such attire. In Belgium in December 2003, two Belgian Senators proposed a draft law to the Belgian Senate to prohibit the wearing of the hijab and other overt religious symbols in state schools. And, on June 29, 2004, the European Court of Human Rights allowed that “Banning Muslim headscarves in state schools does not violate the freedom of religion and is a valid way to counter Islamic fundamentalism.”

The arguments against such bans often appeal to ‘freedom of religion. Some say that while wearing the hajib helps to preserve a woman's modesty, the right to wear the hajib is “part of one’s identity” as a Muslim and that it is even a religious duty.

On the other hand, however, banning the hajib – and limiting this freedom – is consistent with democratic principles of equality and security. For example, it is claimed that very few women wear the head scarf voluntarily; that not allowing it in fact respects the wishes of the majority of the parents who rsist the fundamentalist elements in some communities, and that it serves to defend pupils against a potential fundamentalist influence. Other arguments have been made that such actions that ban the hajib are consistent with the principle of state neutrality [or secularism]; thus, in Belgium, the proposed law states that ‘[t]he government should remain neutral…in all circumstances and be represented as such…that means no distinctive religious symbols or veils for police officers, judges, clerks or teachers at public schools’.

Thus, while a person has the right to wear a hijab or head scarf in public, it does not mean that they have the right to do so as a public employee, or that (for example) one’s freedom of religion is limited if, in applying for, or obtaining a teaching job, one is prohibited from wearing the scarf.

more freedom to express one religion than other religions (e.g., Christian)

A second case that may be familiar to some is one concerns the tensions between parental rights of religion and children’s rights – particularly concerning their health and medical treatment. In a recent case in Toronto, Canada, for example, the one-month old daughter of Jehovah's Witness parents required a blood transfusion to treat potentially life-threatening congestive heart failure.[3] On the one hand, the parents claimed it was unnecessary – but principally objected that, because of their religious beliefs against blood transfusions, the public authorities had no right to carry out the medical procedure. On the other hand, the Children's Aid Society argued that they had an obligation to a "child in need of protection" under the Ontario Child Welfare Act – and courts subsequently held that “freedom of religion, guaranteed under s. 2(a) of the Charter, does not include the imposition of religious practices which threaten the safety, health or life of the child.” The courts argued that, “although the freedom of belief is broad, the freedom to act upon those beliefs is narrower, because it is subject to such limitations as are necessary to protect the fundamental rights and freedoms of others.”[4] A similar example may be found in a 1972 United States Supreme Court decision. On the one hand, an Amish religious community claimed that “freedom of religion protects a community's right to live in accordance with its tradition and beliefs, even if this limits the individual freedom of children.”[5] On the other hand, the state argued that the freedom of religion does not extend so far as to deprive children of basic freedoms.[6]

Another recent case concerns speech and expression based on religious beliefs, and the prohibition of comments that are deemed to be hurtful to members of certain identifiable groups. One recent case in Canada arose out of a small advertisement in a local newspaper, the Saskatoon Star Phoenix. On June 30, 1997, Mr Hugh Owens, an evangelical Protestant, placed an advertisement that “consisted of a pictograph of two men holding hands superimposed with a circle and slash -- the symbol of something forbidden -- and a list of Bible verses condemning the practice of homosexuality.” Three gay men filed a complaint with the Saskatchewan Human Rights Board, claiming that their equality rights under the Canadian Charter had been violated.[7]

These conflicts may be even more dramatic in countries where there is an explicit policy of multiculturalism and pluralism [these are not the same]

There are many other cases where one can see potential – or actual – conflicts between freedom of religion and other social values

-- Violence against girls as a demonstration of cultural or religious traditions (e.g.,

forced marriages and very early marriages, sexual mutilations, honour killings or “ritual abuse”. Can freedom of religion and the right to enjoy one’s own culture be respected on an equal footing? What are the obstacles to promote women’s rights in the framework of cultural or religious practice?

-- arrest for engaging in religious practices

Native American arrested for use of peyote. Also arrested for snake handling. These are done in conjunction with religious ceremonies.

People have died from either or both of these. If we legalize it, what about pot for your own church? Crack?

Oregon State Law - illegal to possess peyote and/or use it.

LSD Church - League for Spiritual Development - Timothy Leary illegal. Prayers at commencement - California decision - illegal.

In May 2002, in an Oshawa area high school, Mr. Marc Hall invited his boyfriend to his Catholic High School prom. In keeping with Catholic moral theology, the Catholic school board prohibited Hall from bringing the boyfriend to the graduation dance. Constitutional guarantees of freedom of religion were confronted with guarantees against discrimination.

Luna the whale / Saving whales / protected or endangered species and ancestors

3. Democratic Values

What do I mean by democratic values (particularly where they include multiculturalism)?

i) human rights

- these arose as a way of limiting the arbitrary authority of non-democratic regimes

a. – as defined in national constitutions and bills of rights (e.g., Canada, Australia, France, United States)

b. - as defined in UDHR

-“ a common standard of achievement for all peoples and all nations” Preamble

“the inherent dignity and of the equal and inalienable rights of all members of the human family” (Preamble)

Among these rights is the right to freedom of religion (UDHR art. 18)

ii) Other values besides human rights (which may or may not be in the UDHR):

- human dignity

- individual autonomy -- pursuit of one’s good in one’s own way [and rights are a means to this; we don’t have a right to this]

- social harmony and stability – peace and security

- obligation to protect the weak (especially children) and those who are not able (or do not feel able) to claim their rights

- the just requirements of morality ; ‘natural justice’

- commitment to truth, and the pursuit of truth (not just acting on whim)

- commitment to civilization – to the community of minds

- humility

- diversity

iii) another value is multiculturalism

--- definition “Multiculturalism or cultural pluralism is a policy, ideal, or reality that emphasizes the unique characteristics of different cultures in the world,” that holds that “several different cultures (rather than one national culture) can co-exist peacefully and equitably in a single country”, and “supports policies of maintaining ethnic identities, values and lifestyles within an overarching framework of common laws and shared institutions.”

See Canadian Multiculturalism Act (R.S., 1985, c. 24 (4th Supp.) [C-18.7] An Act for the preservation and enhancement of multiculturalism in Canada [1988, c. 31, assented to 21st July, 1988]

--- genuinely pluralistic, not ‘melting pot’

-- what this means is ..... this is based on

--- Is multiculturalism an implication of other democratic values?

4. What is Freedom of religion?

- guaranteed in Charters and Bills of Rights

- often listed as among the most basic or fundamental of human rights

- UDHR: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. (Article 18.)

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” (Article 19.)

- the United Nations Declaration on the Elimination of all Forms of Intolerance and Discrimination based on Religion or Belief (General Assembly resolution 36/55 of 25 November 1981).

That declaration set out minimum international standards for the elimination of such discrimination.

Virtually identical to UDHR, art 18. But notice how far it extends (below!)

Article 1

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice.

3. Freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.

- UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities 1992 provides that ‘States shall protect the existence and the… religious… identity of minorities within their respective territories’ (A.1). Further, it provides that minorities have the ‘right to enjoy their own culture, to profess and practise their own religion…freely and without any interference or any form of discrimination’ (A.2

- what does it mean to have such a right or freedom?

---- not just tolerance

--- not just a freedom of opinion

--- a special kind of freedom

Now, for Maritain, this freedom is not (?) the same as freedom of opinion, or of belief, or of speech. The distinction may seem to be a fine one, but it is not an insignificant one. It is not just a freedom to choose, but more like a freedom to commit oneself, and it presumes that one is seeking the truth — how to lead one’s life — and not for some other purpose (e.g., to avoid military service). Thus, it is also not just a freedom of opinion or belief; it is a particular kind of belief that it defends—one that has a special place in life.

---- It is an individual right -- the right of any one person to choose between religions. Some would even say that it is a “collective right” – a right of collectivities – which means “the right of the members of any religion to maintain the beliefs, practices and symbols of their religion.” (Is it both? Maritain would disagree) Moreover, some woudl say that the individual's right would be empty concept if there were not also a “right of the group as a collective entity”; there could not be such an individual freedom unless ..... If one is using language strictly here, I would disagree – but clearly a social context is important.