A right to religious and moral freedom?

Transcription

1 The Author Oxford University Press and New York University School of Law. All rights reserved. For permissions, please A right to religious and moral freedom? Rafael Domingo* This essay develops a normative argument against Michael Perry s approach to religious freedom. According to Perry, the right to religious freedom should be expanded into a claim upon liberal democracies to religious and moral freedom. In other words, one should be free to practice one s morality, whether or not it is grounded in the transcendent. This paper argues instead that religious freedom cannot be protected by the same legal paradigm as moral freedom because religion and morality affect legal systems in different ways. Religious freedom and moral freedom are different ontological realities and therefore require different treatments under law. Religion is detachable from political communities; morality is not: political communities are by definition moral communities. Perry s expansion promotes moral permissiveness and slows and hinders the right development of religious and moral values in political societies. His approach ultimately identifies moral freedom with free morality and coercively imposes a particular model of morality: namely, a liberal one. In place of Perry s expansion, this paper proposes a new expansion of religious liberty along different lines: a more specific legal distinction between the right to religion, on the one hand, and moral freedom of conscience, on the other. 1. Introduction Michael J. Perry, a distinguished American scholar of law, religion, and morality, has advocated broadening the paradigm of the right to religious freedom into what he calls the right to religious and moral freedom. 1 That is, he defends extending the right to religious freedom to embrace moral freedom and making this expanded right mandatory for liberal democracies. According to Perry, this extension of the right is * Professor of Law at the University of Navarra School of Law and Francisco de Vitoria Senior Fellow at the Center for the Study of Law and Religion at Emory Law School in Atlanta. rafael.domingosle@gmail.com. 1 Michael J. Perry, The Right to Religious and Moral Freedom, in Religion and Human Rights. An Introduction 269 (John Witte, Jr and M. Christian Green eds., 2012) [hereinafter Religious and Moral Freedom]; and Michael J. Perry, The Right to Religious Freedom, with Particular Reference to Same Sex Marriage, 1 J. L., Religion & State 147 (2012) [hereinafter The Right to Religious Freedom]. In id. at 151, Perry says that he refers to the right to religious and moral freedom as just the right to religion for the sake of economy I CON (2014), Vol. 12 No. 1, doi: /icon/mou001

2 A right to religious and moral freedom? 227 the best way to protect rigorously the freedom to live one s life in harmony with one s deepest and ultimate convictions and commitments, whether or not one s morality is religiously based. 2 This doctrinal elaboration of a new right to religious and moral freedom is part of his ambitious project of developing a global political morality 3 of liberal democracies based on human rights. 4 Although Perry focuses on the United States, 5 his approach aspires to universal validity, 6 and he grounds his arguments partly in international human rights instruments and comparative constitutional case law. 7 In this article, I take for granted the widely accepted point, 8 which Perry also defends, 9 that the traditional religious freedom paradigm should be expanded to cover believers and non-believers alike. 10 I do not, however, accept Perry s argument for expanding the right of religious freedom into a right to religious and moral freedom, for religion and morality, though related, affect the law in very different ways. Religion is detachable from politics, but politics is not detachable from morality. Political communities are by definition moral communities, but by definition they are not religious communities. 11 The same legal right should not be understood to protect both a constitutive element of political communities such as morality, and an important but separable element like religion. One can have the right to live according to one s religion in a non-religious community such as the political community, but one cannot have the same right to live one s own morality in a community that is in part morally defined, as is the political community. I thus challenge the idea that there is a right to religious and moral freedom as such, and suggest instead the necessity of a more precise legal distinction between the right to religion and the right to freedom of conscience. of expression. See also Michael J. Perry, The Right to Religious and Moral Freedom, in Michael J. Perry, Human Rights in the Constitutional Law of the United States 112 [ch. 7] (2013) [hereinafter Human Rights in the Constitutional Law]. For a revisited version of this chapter 7, see Michael J. Perry, Freedom of Conscience as Religious and Moral Freedom, J. L. & Religion (forthcoming 2014) [hereinafter Freedom of Conscience]. 2 Perry, Religious and Moral Freedom, supra note 1, at 270; Perry, Human Rights in the Constitutional Law, supra note 1, at Perry, Human Rights in the Constitutional Law, supra note 1, at 1. 4 See Michael J. Perry, The Idea of Human Rights (1998); Michael J. Perry, Toward a Theory of Human Rights (2007); Perry, Human Rights in the Constitutional Law, supra note 1, at 1. 5 Perry, Human Rights in the Constitutional Law, supra note 1, at Cf. Michael J. Perry, The Political Morality of Liberal Democracy, esp. at 1 6 (2010). 7 Cf. Perry, Religious and Moral Freedom, supra note 1, at ; Perry, Human Rights in the Constitutional Law, supra note 1, at For a defense of this expansion, see the masterpiece Charles Taylor, A Secular Age, esp. at 1 22 (2007). 9 Perry, Human Rights in the Constitutional Law, supra note 1, at See Rafael Domingo, A New Paradigm for Religious Freedom, 56(2) J. Church & State (forthcoming June 2014). 11 See infra Sections 4 and 6. Religious values and traditions can be important elements of the culture of a political community, but democratic political communities as such are by nature not religious communities since they can neither use the religious argument nor impose on citizens an act of faith or adherence to a concrete religion. Moreover, the end of the political community is not the religious good, but there is instead the moral good.

3 228 I CON 12 (2014), This article challenges the starting points the first principles or primary truths 12 as well as the tacit assumptions 13 of Perry s argument, on these grounds: (a) Protecting non-believers as well as believers is best served not by unifying but rather by distinguishing religious from moral freedom as sharply as possible. (b) Politics is independent of religion but not of morality. So religious freedom and moral freedom cannot receive the same treatment as a single human right. (c) Religious freedom does not entail a general moral freedom (understood as moral independence) but only freedom of conscience (an expression of moral autonomy). (d) Asserting a single right to religious and moral freedom erroneously equates moral equality with religious equality, to the detriment of public morality. (e) The fact that all human beings are morally equal in dignity does not mean either that legal systems should treat all moralities equally or that they may not regulate morality except in pursuit of human rights or legitimate interests in Perry s particular sense. (f) Religious beliefs can licitly play a more extensive role in political communities than Perry allows. (g) Religious and moral values can be instruments of unity in the political community since they can constitute a part of the communitarian identity. In order to be generally recognized by the political community, religious values should be distilled into moral or political values. Three clarifications before continuing: First, this paper uses the term legal system and not law in order to differentiate a human creation (the legal system) from an idea (law) that embraces religious as well as legal elements. Thus, it is possible to talk about divine law or the Law of God but not about a divine legal system. 14 Second, since Perry s new paradigm has been developed over several years of prolific output, 15 it has sometimes been difficult to determine precisely his final opinion on a given issue. In cases of doubt or conflict, I have assumed that the later publication reflects Perry s current or more settled view. 16 Third, this essay does not focus on Perry s interpretation of the International Bill of Rights in support of his argument 17 or on the concrete application of Perry s paradigm to the controversial cases of abortion and same-sex unions. 18 Though important in their own right, these points do not touch the essence 12 Cf. these expressions at the beginning of Alexander Hamilton, The Federalist Papers No. 31 (1788), available at In disquisitions of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. 13 See Lon L. Fuller, The Morality of Law 189 (rev d ed. 1969). 14 See Remi Bragué, The Law of God. The Philosophical History of an Idea (2007). 15 See now Perry, Freedom of Conscience, supra note Perry, Human Rights in the Constitutional Law, supra note Perry, supra note 6, at ; Perry, Religious and Moral Freedom, supra note 1, at ; Perry, Human Rights in the Constitutional Law, supra note 1, at Perry, supra note 6, at ; Perry, The Right to Religious Freedom, with Particular Reference to Same Sex Marriage, in Journal of Law, Religion & State 1 (2012) ; Perry, Human Rights in the Constitutional Law, supra note 1, at

4 A right to religious and moral freedom? 229 of Perry s argument, on the supposed requirement for liberal democracies to expand religious freedom into a unitary right of religious and moral freedom. 2. Perry s approach to the right to religious and moral freedom To orient readers, I summarize in broad strokes Perry s approach to religious and moral freedom. Human rights are based on the equal, inviolable, and inherent dignity of all human beings. 19 According to Perry, this proposition is axiomatic 20 in a liberal democracy dedicated to the protection of human rights. To act towards one another in a spirit of brotherhood is the fundamental imperative 21 articulated in the Universal Declaration of Human Rights. 22 This is also the normative ground of human rights 23 in the sense that all human rights are specifications of what the imperative forbids or demands in particular cases. 24 A right is a human right if the fundamental rationale for protecting the right is that conduct that violates the right also violates the imperative of a spirit of brotherhood. 25 All human rights are moral rights, but, as a matter of fact, not all human rights are legal rights since some human rights are not enforceable in many countries. 26 A democracy is committed to a human right if its legal system recognizes and protects this human right as a fundamental legal right. Liberal democracy s commitment to the equal, inherent, and inviolable dignity of the person, Perry continues, also entails its commitment to the right to moral equality, which is the right of each human being to be treated by governments and lawmakers as morally equal to every other human being, 27 i.e. according to his or her equal dignity 28 and in a spirit of brotherhood. 29 All fundamental legal rights must preserve moral equality inasmuch as they must preserve human dignity. Religious freedom is a human right to which a liberal democracy is committed; it is a fundamental legal right. 30 In Perry s view, religious freedom is the freedom to live one s life in harmony with one s ultimate convictions and commitments, whether they are grounded in transcendent or non-transcendent considerations See Perry, supra note 6, at 9 26; Perry, Religious and Moral Freedom, supra note 1, at ; and Perry, Human Rights in the Constitutional Law, supra note 1, at See Perry, supra note 6, at 11 and Cf. Universal Declaration of Human Rights, art See Perry, Human Rights in the Constitutional Law, supra note 1, at See id. at See id. at See id. at 23 and See id. at See id. at See Perry, supra note 6, at 62: the human right to moral equality is the right of every human being to be treated by lawmakers and other governments officials as one who has equal inherent dignity and is inviolable. See also Perry, Human Rights in the Constitutional Law, supra note 1, at See Perry, Human Rights in the Constitutional Law, supra note 1, at See Perry, supra note 6, at Id. at 89.

5 230 I CON 12 (2014), Liberal democracies are also committed to the right to moral freedom, Perry continues. 32 Moral freedom is the freedom to live one s life in harmony with one s moral convictions and commitments, whether or not they are transcendent. 33 Since, according to Perry, there is no way to address fundamental moral questions without also addressing, if only implicitly, religious questions, 34 the right to religious freedom must be expanded into a right of religious and moral freedom. Moral freedom and religious freedom are more than analogous or complementary rights. 35 They constitute a single fundamental right, which protects the freedom to live one s life in accord with one s religious and/or moral convictions and commitments. 36 So, it is misleading to describe the human right of religious and moral freedom simply as the right to religious freedom. 37 And doing so makes it impossible to protect moral equality between believers and non-believers in a liberal democracy. In other words, if religion in the broadest legal sense refers to ultimate questions, concerns, and convictions, and if fundamental moral issues have to do with the same, then moral freedom and religious freedom must be protected under the same right: the right to religious and moral freedom. Recently, Perry identifies this right with the right to freedom of conscience. 38 This expansion constitutes one of the most important ways for a society to manage moral and religious diversity. 39 According to Perry, in a liberal democracy, the moral contents and aspirations of the law should be minimal, 40 for the sake of the moral freedom and moral equality of each of its members. It is not the business of democratic government to protect either moral truth or society s moral health or moral unity. 41 Political governments should not be trusted as arbiters of religious or other ultimate questions. 42 They should arbitrate moral disagreements only as between individuals or other private entities. 43 In particular, Perry thinks, governments may limit the practice of the right to religious or moral freedom only when three conditions are satisfied: the legitimacy condition, the least burdensome alternative condition, and the proportionality condition. 44 The legitimacy condition is critical to Perry s proposal. Only a legitimate objective or interest can justify a government s imposition of some restriction or policy that 32 Id. at Id. at Id. at Id. at Perry, Human Rights in the Constitutional Law, supra note 1, at See id. at See Perry, Freedom of Conscience, supra note See Perry, Human Rights in the Constitutional Law, supra note 1, at See Perry, From Religious Freedom to Moral Freedom, in San Diego L.R. 47 (2010) See also Perry, supra note 6, at 88. Perry is deeply influenced by John Courtney Murray, as he expressly recognized. See John Courtney Murray, Religious Liberty. Catholic Struggles with Pluralism (5th ed., Westminster, John Knox Press, Louisville, Kentucky, 1993). 41 Perry, supra note 6, at Perry, Religious and Moral Freedom, supra note 1, at Perry, supra note 6, at Perry, Religious and Moral Freedom, supra note 1, at 272; Perry, The Right to Religious Freedom, supra note 1, at 156; Perry, Human Rights in the Constitutional Law, supra note 1, at 122.

6 A right to religious and moral freedom? 231 curtails religious or moral freedom. 45 Illegitimate interests include trying to protect the truth about religious or other ultimate questions, or the political community s unity or strength on such issues. 46 The other two conditions operate within the framework established by the legitimacy condition. 47 Public morals can undeniably satisfy the legitimacy condition, 48 but only when the restriction or other policy in question is not based on sectarian religious or moral belief: Protecting sectarian morals is not a legitimate government objective under the right to religious and moral freedom. 49 The right to religious and moral freedom ought to be considered a fundamental political norm 50 of the global morality of human rights, Perry says. He tries to find support for his argument in favor of a right to religious and moral freedom in article 18 of the International Covenant on Civil and Political Rights, 51 which he considers canonical. 52 Although the article refers to a right to freedom of thought, conscience and religion, Perry argues, among other things, that the article s mention of belief and conscience, as well as the paragraph s reference to moral education, provides sufficient support for his expanded interpretation. 53 Perry applies his paradigm to some of the most controversial issues, especially in the United States: abortion and same sex marriage. 54 He concludes that an extreme ban on abortion... violates both the right to moral equality and the right to religious and moral freedom, 55 while the exclusion of same-sex couples from civil marriage violates the right to moral and religious freedom, but not the right to moral equality The expansion of the paradigm of the right to religious freedom To understand the logic of Perry s extension to moral freedom, we can begin by considering other expansions in the concept of religious freedom. The original paradigm 45 Perry, Human Rights in the Constitutional Law, supra note 1, at ; Perry, Religious and Moral Freedom, supra note 1, at Perry, supra note 6, at 75 80; Perry, Religious and Moral Freedom, supra note 1, at ; Perry, The Right to Religious Freedom, supra note 1, at ; Perry, Human Rights in the Constitutional Law, supra note 1, at Perry, Religious and Moral Freedom, supra note 1, at Perry, Human Rights in the Constitutional Law, supra note 1, at See id. at 125. According to Perry, a non-affirmation of moral or religious belief fits into this paradigm; for example, the US national motto In God We Trust, or the expression Under God in the Pledge of Allegiance. See a development of this argument in Perry, supra note 6, at (ch. 6). 50 Perry, supra note 6, at Adopted by the United Nations General Assembly on Dec. 16, 1966, entered into force Mar. 23, Perry, Religious and Moral Freedom, supra note 1, at 269. See Perry, Human Rights in the Constitutional Law, supra note 1, at See his argument in Perry, Religious and Moral Freedom, supra note 1, at See also Perry, Human Rights in the Constitutional Law, supra note 1, at Perry, Human Rights in the Constitutional Law, supra note 1, at See also Perry, supra note 6, at ; and Perry, The Right to Religious Freedom, supra note 1, at esp Perry, Human Rights in the Constitutional Law, supra note 1, at Id. at 179. See also Perry, The Right to Religious Freedom, supra note 1, at

7 232 I CON 12 (2014), of religious freedom, established first by Protestantism and then by Enlightenment liberalism, was designed to protect mutual toleration of Christians in their different profession of religion. 57 It was a transcendent approach, since it regarded the existence of God, in the Abrahamic sense of the term, as rationally provable and socially accepted. 58 According to this original approach, religious freedom was the political freedom required to accomplish the duty of rendering to God what human beings as creatures owed him according to justice or, in the words of James Madison, the father of religious freedom in the United States, the duty which we owe our Creator and the manner of discharging it. 59 So the end of religious communities was understood to be the public worship of God, and by means thereof the acquisition of eternal life. 60 The idea of God was central to the understanding of religious freedom as its own right deserving of special treatment, and different from the rights to freedom of speech, press, association, and more. As America s early religious freedom advocate Roger Williams put it, God requires not uniformity of religion to be enacted and enforced in any civil state. 61 Freedom of conscience was the legal tool to protect the free exercise of religion. The ultimate end of freedom of conscience was not to protect conscience against potential political immorality, 62 but to protect the free election of one s own religious path. This original paradigm of religious freedom has been expanded over the past two centuries in two basic directions: first, to protect non-transcendent religions and beliefs; and second, to protect so-called freedom from religion. The advance of globalization highlighted the diversity of world religions and beliefs (Abrahamic religions, Eastern religions, religious eclecticism, private beliefs, aboriginal and indigenous spiritualities, and so on), and the corresponding need to expand the religious paradigm to extend coverage to all kinds of religious and nonreligious beliefs and creeds. This expansion was firmly adopted in the Universal Declaration of Human Rights (art. 18) and in the Covenant on Civil and Political Rights (art. 18), and it was recognized by the most important international documents, notably the 1981 Declaration on the Elimination 57 John Locke, A Letter Concerning Toleration, in The Selected Political Writings of John Locke 126 (Paul E. Sigmund ed., 2005). 58 For further information, see John Witte, Jr, The Reformation of Rights. Law, Religion, and Human Rights in Early Modern Calvinism (2007); Christianity and Human Rights (John Witte, Jr & Frank S. Alexander eds, 2010). 59 Cf. James Madison, Memorial and Remonstrance against Religious Assessments (1785) no. 1, available at See also the Constitution of Massachusetts (1780) pt I, art. II, drafted chiefly by John Adams, available at edu/founders/documents/bill_of_rightss6.html: It is the right as well as the duty of all men in society, publicly, and at stated seasons, to worship the Supreme Being, the great creator and preserver of the universe. 60 Locke, supra note 57, at Roger Williams, The Bloody Tenent of Persecution for Cause of Conscience [1644], in On Religious Liberty. Selections from the Works of Roger Williams 85, 87 (James Calvon Davis ed., 2008). 62 Cf. Brian Tierney, The Idea of Natural Rights (1997); John Witte, Jr, The Reformations of Rights esp (2007).

8 A right to religious and moral freedom? 233 of All Forms of Intolerance and of Discrimination Based on Religion or Belief. 63 There was no question that in a world in which believing in God was no longer axiomatic, historical monotheism could not be the key to the right to religious freedom. The extension of the protection of the paradigm of religious freedom to non-transcendent religions and beliefs was, therefore, an eminently understandable position on the part of liberal democracies. After this extension, the ultimate foundation of the right to religious freedom was no longer the existence of God and the free exercise to worship, but the religious capacity of the human being as a dimension of his or her inherent dignity. This positive and realistic shift, aimed chiefly at avoiding discrimination in religious matters in the era of equality, did not justify the exclusion or marginalization of the idea of God as understood by Deism, by the Abrahamic religions (Judaism, Christianity, and Islam), and by other forms of transcendent monotheism (for instance, Zoroastrianism, Sikhism, or the Baha i faith). Nor did it justify the reduction of religion to mere personal conviction and subjective belief. The idea of a transcendent God remained at the heart of the idea of religion. This first expansion of the right simply meant that transcendence, and specifically believing in God, was no longer a necessary condition of protection under the right of religious freedom, but just a sufficient one. This was the change and the challenge of the new paradigm of religious freedom. As a result of an intense process of Western secularization over the last several decades, the incorporation of nonbelievers (atheists, agnostics, and so on) under the protection of the right of religious freedom implied a second, long-range expansion of the paradigm of religious freedom, this time to protect people against religion. The peculiar freedom from religion discussion introduced by the American First Amendment s Establishment Clause anticipated the broader twentieth century discussion of freedom from religion. 64 The aim of the extension was to establish bonds of solidarity, 65 a sort of overlapping consensus 66 of all kinds of worldviews and convictions. According to this second expansion, freedom of religion must be the inclusive patrimony of believers and nonbelievers. It should therefore fully protect from religion those who choose to have nothing to do with God or religion. These two extensions of the paradigm of religious freedom have also taken place in other basic rights such as the right to marriage and the right to work. Although these 63 See Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948); International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976; and see the full text of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, G.A. res. 36/55, 36 U.N. GAOR Supp. (No. 51) at 171, U.N. Doc. A/36/684 (1981). See also Guidelines for Review to Legislation Pertaining to Religion or Belief, Title II, A, no. 3, adopted by the Venice Commission at 59th Plen. Sess., June 18 19, 2004, available at odihr/ While this norm was set out in U.S. Const. amend. I (1791), it was not actively enforced in the United States until the case of Everson v. Board of Education 330 U.S. 1 (1947). For an overview, see John Witte, Jr & Joel A. Nichols, Religion and the American Constitutional Experiment (3d ed. 2011). 65 See Jocelyn Maclure & Charles Taylor, Secularism and Freedom of Conscience 110 (2011). 66 See John Rawls, Political Liberalism (expanded ed. 2005).

9 234 I CON 12 (2014), other rights are of a different ontological quality, they are supported by the same legal framework: the paradigm of a right to protect a good for society that is freely chosen by the individual. So they can serve as a useful analogy. The right to marriage should protect both people who decide to marry and people who decide not to marry. The starting point of the right to marriage is the personal autonomy to decide whether to marry. The right not to marry is not strictly a derivation of the right to marry, but simply a derivation of moral autonomy. However, under the umbrella of the right to marriage a legal system can protect both married and single people; i.e., the right to marriage can also protect the freedom from marriage. Without reference to a social union or legal contract there is no marriage, and a right to marriage cannot have special treatment. But as a matter of fact a single person without any kind of legal contract is protected by the right to marriage. Moreover, according to the law, just by extending the paradigm, a given partnership can be assimilated to legal marriage. So on the one hand, if marriage is relevant to the legal system, it is because of the legal relevance of marital union, not of singlehood or partnership. Yet without moral autonomy with respect to whether to marry, there is no right to marriage. Something similar happens with the right to work. The right to work can protect both workers and people who decide not to work ( freedom from work ). The right not to work is not strictly a derivation of the right to work, but just a matter of personal moral autonomy. However, under the umbrella of the right to work, a legal system can protect both workers and non-workers. Without a reference to some labor issues (salary, labor contract, vacations), a right to work cannot have special treatment. However, as a matter of fact, a non-worker without any kind of legal contract could be protected by the right to work as an extension of the paradigm. A legal system can assimilate to workers people who are actually working for free, without any labor contract. Freedom from marriage and freedom from work, although matters of personal moral autonomy, can be understood because there is a right to marriage and a right to work because, that is, human beings are potential workers and potential spouses. To regard marriage and work as goods deserving of the legal protections afforded by human rights is not discriminatory against single people and the unemployed because everybody has the right to marry and to work. However, these are different statuses: one cannot be married and unmarried, or a worker and a non-worker, at the same time. Thus, the positive exercise of the right (marriage or work) requires more attention on the part of legal systems than the negative exercise of the right (to be single or not a worker), but in no case does this treatment suppose a discrimination against any person who decides not to work or to remain single. It is just a matter of legal implications (in the case of marriage: the possibility of having children within the marriage, cohabitation, and so on; in the case of a worker: social security, vacation, salary, and so on). The same framework, I submit, should be applied to the right to religious freedom (freedom of and from religion). Originally, the right to religious freedom entailed only the freedom of religion, with the concept of religion limited to Abrahamic religions. In a first expansion, the right to religious freedom came to embrace the freedom of

10 A right to religious and moral freedom? 235 both transcendent and non-transcendent religions and beliefs. In a second expansion, it came to include freedom from religion as well. Freedom from religion is not strictly a derivation of the right to religious freedom, however, but just a matter of personal moral autonomy. Even so, under the umbrella of the right to religious freedom, a legal system can protect both believers and non-believers. Without a reference to religion there is no religious freedom. Nevertheless, as a matter of fact non-believers are also protected under the right of religious freedom. The decision not to have anything to do with religion is a moral decision about religious issues, not a religious decision, just as the decision not to have anything to do with marriage is a moral decision but not a marital decision. It is a matter of personal moral autonomy. It is ultimately a matter of freedom of conscience. That is why without freedom of conscience there is no religious freedom. In this context, Perry s expansion of religious freedom into religious and moral freedom is understandable: If the right to religious freedom has been expanded in order to protect all kinds of beliefs and ultimate convictions, the right should protect not just the practice of religion, but the practice of one s morality, whether or not based on religious convictions or standards. In my opinion, however, this extension is problematic. The right to religious freedom does not entail the right to practice one s religious or non-religious morality because religion and morality are ontologically different. Politics, like legality, cannot be separated from morality altogether. However, religion can and should be separated from politics. Thus, religion and morality require different legal standards, different rules and different forms of legal protection. Therefore, they cannot be treated as the same right, but as two different freedoms: freedom of conscience and freedom of religion. 4. Religion and morality as different ideas Religion and morality are closely related. But they are different ideas, different realities, and they affect political communities and legal systems in different ways. Religion is not morality, and religious freedom is not moral freedom. Religion tries to find a response to the question about transcendence and thus involves ultimate beliefs and convictions. Morality tries to give a response to questions about the good (right) or bad (wrong) intentions, decisions and actions of human beings as individuals and members of communities. Although both religion and morality are intrinsically related and mutually supporting, especially in the Abrahamic religions, they do not have definitional connections, since the knowledge of moral truths does not necessarily connect with knowledge of religious truths. 67 So, it is possible to talk about religion without morality and morality without religion: When religions are compared, this kind of overlap in religion and morality is seen to be more the exception than the rule, 67 In the same vein, see Robert Audi, Democratic Authority and the Separation of Church and State 12 (2012): The point is that knowledge of moral truths does not depend on knowledge of God or religious truths (or on justification for religious or theological propositions).

11 236 I CON 12 (2014), affirms Niklas Luhmann. 68 And Ronald Dworkin s book Justice for Hedgehogs is just the most recent important attempt to support morality without religion. 69 A devout Sikh boy who decides not to wear his dagger (kirpan) in school because it could be dangerous for classmates is making a moral decision on the basis of a religious precept to which he is committed. 70 A Jewish person who decides not to attend military service in order not to bear arms is making a decision based on moral grounds but not on religious grounds, because Judaism does not ban the bearing of arms. A Christian who skips church on Sunday to take care of his or her grand father is contravening a religious commitment out of a moral concern for solidarity. The decision can be justified by the church (Christian charity), but it is chiefly moral, not religious. A Christian can decide to be vegetarian for moral reasons (protection of animals), but also for religious reasons (to offer this sacrifice to God in atonement for the sins of humankind). A Muslim can avoid alcohol for religious reasons but also just for moral or prudential reasons: say, to comply with medical advice. An atheist girl who decides to have a baby in difficult circumstances rather than have an abortion is making a moral decision that has nothing to do with religion. We can multiply examples in which we can differentiate morality and religion, and not just in some abstract or academic sense. All communities are moral communities by nature since they have to make moral decisions, i.e., decisions about what is good (right) or bad (wrong) for the community. As a community, the political community is moral, as is the religious community. Behind health policies, immigration strategies, capital market regulations, environmental statutes, educational standards, and so on, there are always moral decisions. Even the political decision of a community not to make a moral decision about individual behaviors and practices if they do not affect a political interest is as such a moral decision: a collective moral decision to base the community s public moral standards on moral independence that is, on a degree of permissiveness. Morality is a constitutive element of the political community, and ultimately of the legal system, but not of religion. The political community cannot help but make many moral decisions. But moral decisions are made in other communities, too: in a school, corporation, neighborhood, family, as well as in a church, synagogue, or mosque. In short, it is not only that the political community makes moral decisions; rather, on matters within its competence, it cannot help but make moral decisions. Of course, for the most part, it cannot interfere in the peaceable moral decisions made in other non-state associations, but even there it can set minimal standards; if, say, a religious community or a private association decides that child sacrifice is a good thing, the political community will step in. Morality is part of the home of the political community; religion, however, is just a neighbor : it is separate but inhabits the same area. As to moral community, moral 68 See in this vein Niklas Luhmann, A Systems Theory of Religion 123 (2013). 69 Ronald Dworkin, Justice for Hedgehogs (2011). 70 For a deep commentary on religious toleration based on this example, see Brian Leiter, Why Tolerate Religion? (2013).

12 A right to religious and moral freedom? 237 issues affect legal systems of political communities more strongly than religious issues. The decision of a political community to be neutral on some moral issues is a moral decision, not just a political one. That is why no political community is morally neutral. Moreover, political decisions about being or not being neutral about religion are not religious decisions, but they are moral decisions. They are decisions about how to achieve the common good of the community. Behind the constitution and structure of each legal system, there are critical moral decisions. Even the decision strongly to separate law and morality as two different entities without connection, as analytical legal positivism demands, is not only a legal philosophical decision, but a moral decision: the morality that makes law possible, to cite Lon L. Fuller s famous expression. 71 Political communities cannot escape from morality just as they cannot escape from legality. Liberal political communities try to separate justice from the good as much as possible. But this concrete political decision is also a moral decision: the moral decision to consider justice amoral or to give priority to the right over the good. I am not arguing that all political decisions are moral, just those that have to do with the achievement of the good. Decisions about the colors of a country s flag or the convenience of having one or two parliamentary chambers are political but not moral. However, all political communities have to make ineluctably moral decisions in order to survive as political communities. Political communities, at least in modern liberal democracies, are not religious communities. Political communities can and must avoid religious decisions. Religious decisions should be made just by private individuals, informed by their own consciences, and sometimes by the communities of voluntary membership, like churches, synagogues, or mosques. Religious decisions cannot be made by communities of compulsory membership, such as the political community. The decision of a political community to protect the right of religious freedom of individuals and the voluntary religious communities that individuals choose to join is a political (and moral) decision by the state, but not a religious decision, although it has religious consequences. Political communities can protect the practice of every religion because they are not themselves religious communities. They can limit or interfere in religion only in so far as religion harms the common good, say, by promoting violations of life and limb. Religious communities, too, make moral decisions; they, too, are moral communities, offering moral directives that sometimes converge and sometimes are in tension with those of the state. Both political communities and religious communities have variations on the moral laws not to kill, steal, or bear false witness. They have a shared morality, albeit different means of enforcing it (criminal law v. spiritual discipline). But they sometimes have divergent moral answers to the same question. The liberal state says you may have an abortion or divorce; the Catholic Church says you may not. But it is not just the morality of the religious community, but also that of private conscience that is separate from the political morality and jurisdiction of the state. 71 Lon L. Fuller, The Morality of Law 33 (rev d ed. 1969). In a similar way, see Nigel Simmonds, Law as a Moral Idea (2007).

13 238 I CON 12 (2014), Morality is on both sides of the wall dividing politics and religion. The difference between political morality and religious morality is that political morality should be reasonable, i.e. it should be based on a moral rationale. Otherwise, it cannot be applied according to the standards, rules and procedures of legal systems (constitutional law, criminal law, tax law, property law, and so on). Religious morality, however, can be based on a moral rationale, but also on what I shall call a moral supra-rationale (not against but beyond reason) or even an irrational moral claim. The religious prohibition of slavery is based on a moral rationale, not a moral supra-rationale. So, political and religious communities can concur in banning slavery on the ground of its immorality. The religious prohibitions of abortion and euthanasia, too, are based on a moral rationale. That does not mean that this moral rationale cannot also be illuminated by a moral supra-rationale (e.g., the idea that human beings are created in the image and likeness of God). What it does mean is that it is possible to understand the religious moral rationale of the prohibition without professing this religion or making an act of faith. Nobody needs to be a Christian to reject abortion or euthanasia. As a matter of fact, there are many atheists who reject abortion and euthanasia. On the other hand, the traditional Jewish female obligations to light candles (nerot), to separate a portion of dough (challah), and to be immersed in a ritual bath or mikvah after the end of the menstrual period (niddah) are religious moral obligations based on a moral supra-rationale. These commitments are not against reason but just beyond reason. Traditional male circumcision is also based on a moral supra-rationale (the expression of the Covenant with God), not in a moral rationale. The obligations of the Ten Commandments, however, are chiefly based on religious moral rationales, though they could be also considered a mix of rational and supra-rational morality, as is more clearly true of the Catholic prohibition of divorce, for instance. Political morality should be based exclusively on moral rationales. Its justification cannot depend on religious propositions. 72 So a political community should never impose a religious moral supra-rationale. Such an imposition would be against religious freedom, and beyond the power or jurisdiction of the state. The political imposition of fasting during Lent is against religious freedom, as is the political imposition of wearing a kippa or a veil, or the imposition of male circumcision. Fasting during Lent, wearing a kippa or a veil or practicing the circumcision of the male child is not against reason (to obey a rule of God is not against reason), nor is it based on a moral rationale. The political prohibition of a religious moral supra-rationale is also against religious freedom unless there is a legitimate political moral rationale for doing it. The prohibition of wearing full-face Muslim veils (burqa and niqab) would be an example of prohibition of a religious moral supra-rationale by a political community based on a political moral rationale: the preservation of public order and security. However, the legal prohibition of headscarves (covering the hair) would be, at least in my opinion, an example of the prohibition of a religious moral supra-rationale without enough legal justification, i.e. without a political moral rationale, and therefore, in violation of religious liberty. 72 See Robert Audi, Democratic Authority and the Separation of Church and State (2011).

14 A right to religious and moral freedom? 239 Political communities could accept religious moral rationales as elements of their legal system since religious moral rationales can also be political moral rationales. That explains why a country can licitly ban abortion or same-sex marriage based on a political legal rationale even if that rationale coincides with a religious legal rationale. Such political decisions are not against religious freedom. They just reflect the fact that, say, marriage is both a religious and a political institution. That a religious community bans drinking alcohol does not mean that this religious moral rationale cannot be converted into a political moral rationale (to avoid traffic accidents) because rational religious morality can coincide with political morality in accordance with the religious freedom paradigm. The prohibition of public religious nudity (e.g., that of the naked Quakers); the legal prohibition of polygamy (a practice accepted, for instance, in Islam, as well as in some fundamentalist North American sects); or the prohibition of the old Hindu custom (Sati) of a Hindu widow s self-immolating on her husband s funeral pyre should be examples of political decisions based on moral rationales against the supra-rational or even irrational moral claims of certain religions. In sum, legal systems should act according to a moral rationale. But they should protect under the right to religious freedom practices in accordance with religious moral claims that go beyond or even contradict reason, within the limit of public order and morality. A political community is free to give effect to a moral principle even if it coincides with a religious moral principle (e.g., prohibition of polygamy.) The fact that religious and political moral arguments converge does not make them an illicit basis for political action. This convergence is not against religious freedom. It is just a consequence of the fact that both religious and political communities are moral and that human actions can combine both political and religious motives. The intrinsic limit of morality is reasonableness. In a political democratic community, reasonableness should be understood and applied only according to the consent of citizens. In the global human community, the minimum enforced morality could be the morality of human rights. The reason is that it will be very difficult to achieve a more extensive consensus about public morality. However, the lowest common moral denominator in a lower political community will be the morality to which the people of that community reasonably consent. Public morality is just a concrete specification of private morality since moral principles engage two spheres of morality, the private and the public. 73 So the smaller and more uniform the political community is, the stronger its public morality can be. Diversity is found not just in individuals but in communities. With respect to diversity, a world with thousands of different political communities with very different political, religious and moral values is much better than thousands of political communities that conform to Perry s paradigm. Moral rationale and political consent within a constitutional framework that protects minorities, should define the public morality of democratic societies. No more, and no less. The consent of the citizens is supported by common political values, deriving many times from secular and religious values, cultural and historical experiences. 73 In the same vein, see Martin Rhonheimer, The Common Good of Constitutional Democracy 118 (William F. Murphy Jr ed., 2013).

15 240 I CON 12 (2014), The morality of human rights could be the minimum rational morality imposed by consent in the global human community, but there is no moral justification for restricting smaller political communities to the same minimum morality. The possibility of diversification does not entail an obligation to minimize public morality in a political community. If a nudist community decided to move to downtown Atlanta that would not mean that nudism should be permitted to accommodate the new community based on diversity. Diversity is a fact, and it can be a value worthy of protection when it leads to the good of the community. 5. Moral independence versus moral autonomy Perhaps the most radical difference between Perry s approach to religious freedom and the approach this essay defends arises with respect to the concept of moral freedom, 74 which is the key to understanding Perry s arguments. Religious freedom should be supported not by moral freedom in Perry s sense (of moral independence), but by moral freedom of conscience understood as moral autonomy, a substantially different concept. Freedom of conscience is the most genuine expression of moral autonomy. Perry s moral freedom, however, is the political consequence of applying the ideal of moral independence. Moral independence is of its essence individual, not communitarian. It is a right against political government. It is considered a value in itself. Moral independence means an absolute personal sovereignty in ultimate questions such that a person should never accept any judgment in place of his or her own. Moral independence is based on the idea that everything that does not come from the subject is an external imposition. It is a sort of canonization of subjectivity, which calls for the practice of one s own morality. According to moral independence, government must not rely on any justification that directly or indirectly presupposes any moral conviction about what is better or worse for a good life. Thus moral independence may be limited only by legitimate interests or objectives of the political community. 75 Moral independence leads to free morality, and according to Perry s approach, it means no restriction beyond the morality of human rights unless there is a legitimate governmental interest or objective for the restriction. 76 Moral freedom in the sense of moral independence is based on the idea that if all human beings are morally equal, as they indeed are, all moralities should receive the same recognition by the legal system except to protect public morals as a legitimate government objective. 77 Moral freedom understood as moral autonomy instead emphasizes the indispensable relationship between human freedom and moral order in all dimensions of the human person: individual, social and transcendent. According to moral autonomy, it is possible to harmonize legality, morality, religion, and freedom. For moral autonomy, 74 See Perry, supra note 6, at See id. at See Perry, Human Rights in the Constitutional Law, supra note 1, at 122. See also Perry, supra note 6, at Perry, Human Rights in the Constitutional Law, supra note 1, at 125.