Religion and Freedom, Separation of Church and State and Natural Rights

One of the classic liberties protected by the constitution is religion. This protection appears in the Bill of Rights as the first amendment to the constitution. We have taken the separation of church and state for granted since the Bill of Rights, although there was recognition of the need to protect religion from government before this. But it is interesting to ask what particular status does religion have as a right that is protected? Is it a special kind of right?
Typically religion is lumped together with freedom of consciousness and freedom of the press, at least that is the way the constitution categorizes these rights. But behind this categorization that seems so self-evident to us now is an interesting theoretical puzzle and historical story. At issue is the question of whether religion should have any special status as a right over other rights? In other words, if the rights of life, liberty and property are taken as natural rights, what is the right of religion?

On the classic notion of natural rights of course, the basic right is the right to life and the other rights are derivative, such as the rights to property and liberty (right not to be enslaved), which are fences around and extensions to the right to life. But religion is not mentioned as a natural right in John Locke's Second Treatise on Government for example or even in his Letter on Toleration. Locke clearly thought that the state should not get involved in matters of religion. But he never said that this protection was a natural right. Instead, he presented it as a strong recommendation about how the social contract should be put together. The social contract should stay out of people's religious business because government should be focused on civil ends and religion is focused on salvation, which is not the business of civil government. Thus on one reading of Locke, religious freedom is strongly recommended as a foundation for a social contract, but it is not a natural right. It is a strongly recommended civil right, but civil rights derive from decisions at the social compact, not from nature.

But it is not immediately clear why religion should have this special status? After all, when the social compact is made, soccieties have to come to agreement on how their government is to be structured and put in place a process for governing that takes account of the people. Thus the social contract was understood as an agreement that represented the majority of the people's views about how to be governed, as long as the basic rights of life, liberty and property were not sacrificed. And it was understood that in agreeing to enter into society a person's freedom was going to be curtailed because the majority would agree to a set of rules which would limit the freedom of individuals.

It is here that the question about religion arises. On a theory of natural rights, why should freedom of religion have a special status over other types of freedoms that a society considers. In other words ,if at the moment of the social contract, a group considered all the different freedoms to embrace, why should religion have special consideration? There are a vast number of freedoms that a society does not allow, for laws are intended to limit behavior in a way that protects the rights of others. And so by definition there is not total freedom in a society, but only a specific set of freedoms that have been endorsed by a given society with its social laws. For example, there are rules about how fast we can drive or how loud we can be in public or about how to transfer property or what constitutes a contract and so on. Why should religion not be regulated by law of a society when so many other activities are regulated?

One answer is probably historical. The whole notion of natural rights and of the social contract arises in a century that had witnessed religious wars among groups of Christians. It is arguable that the theories of the state that emerge in the seventeenth century were at least in part an attempt to decide how Christians of various varieties could live together in one state, without the rulers imposing religion on the members of society. Thus, religion gets a special exemption for its ability to generate social conflicts. And this is due arguably to the fact that religion is a symbolic system of ultimate meanings. Because people believe religious commitments are about ultimate matters, they are willing to go to war to protect those commitments. On this reading, then, religion is a special kind of protection because of its nature as an ultimate system of meaning that can rip a society apart.

There is a second answer that is coupled with the first. Those who wanted to separate Church and State conceived of religion in Proestestant terms. If one reads Locke's definition of religion, for example, religion tends to be a set of beliefs about salvation. Now this notion that religion is beliefs (a view of religion that still popular in the States for example) rests on a Protestant conception of religion. For what Luther and subsequent Christians did is argue that religion was an inward matter, not a matter of practice or outward works. Their aim in making those arguments was against the Roman Catholic Church. But in shifting the definition of Christianity to inner life, and not works or practice, they shifted the definition of religion. It is this definition of religion that is guiding the assumptions of Locke when he writes about religious toleration. Religion tends to be inward and not external. Because it is internal, Locke can more easily argue that it is a matter between a person and God and not a civil matter. The same assumption is evident in the first amendment. Separation of church and State is categorized with freedom of press and ability to express diverse views.

But had religion been thought about differently, and many scholars of religion for example see religion as not just a set of beliefs, but a whole social system with ways of life and pratices, it becomes much harder to argue that religion should be separated from government. For if religion is a set of practices, and not just beliefs, then the question of how my religious practice, as an act in the world, can affect your freedom becomes much more profound. As examples consider for example the following: my religion tells me to slaughter goats in my home, but society may think this is a health hazard. Or my religion tells me to take drugs that society has banned as harmful to society. In other words, if religion was thought to be a set of practices aimed towards salvation, the potential conflict between my religious practice and the rules that the majority wanted to implement is much more of a potential issue. The debate about whether Darwin should be taught in public schools or a mandatory part of education is an example where specific religious beliefs come in conflict with a more general social practice. Can jews be fired for not working on Saturday when the rest of the business works on Saturday?

I am not arguing that the separation of Church and State should be abandonned. I derive from a people who have been persecuted from religious persecution. But I am suggesting that the issue is more complex than most people think. For it is always possible that some religion has religious beliefs and practices that are or come into conflict with other laws and rights that others want to protect.

For example, one can coneive a religion that arises that has a law that says one much drive at 80 mph. But society in general has set the speed limit at under 65 mph for safety reasons. Does religious practice always get to override the general rules implemented by the majority. I would argue that it does not, for there are always new forms of religion that can emerge and contest the norms.

While it seems simple to protect the diversity of religious belief, it is much more complicated to protect the diversity of religious practice. Any practice can always come in conflict with the established norms and not every practice of everyone can be protected, for that would mean no laws, as the theorists of liberty understood. We need therefore at least two different theories of the separation of church and state. The first that treats religion as belief, has no real issues. We shouldn't be telling people what to belief-that's easy. But the question of whether we allow any religious practice is a different matter. I'm not arguing that we should abandon the separation of church and state in this sense, only that it presents a different problem. And it presents the problem of majorities and minorities. Can majorities legislate against minorities? In what situations should majority decisions be accepted and in what conditions should majority deicsions be limited and examined. This is another whole topic that goes to the core of the debate over what the Constitution was trying to see. One can argue that religious practice is one area where society should have a higher standard than "majority rules" to override the minority. But whether that means that "minority rights" always trump the majority is another tricky question.

Natural Rights and the Image of God.

We have the righ to life, liberty and property, according to the theory of natural rights. But why? Locke offers two theory about the origin of these rights. The first is his "workmanship" theory that says we are the creation of God and therefore God's property. As God's property, we have no right to be harmed (actually this would seem to be a right of God, rather than that of us who are property-but that's for another time). The other theory is that we have ownership in ourselves. In my last blog, I discussed whether these two different claims for natural rights origins are incompatible. Here I want to ask a different question.



What about being made in the image of God? In a religious perspective that reaches back to the Hebrew Bible (Old Testament for some of you), it would certainly make sense to say that we have rights because we are made in God's image. Genesis, at least in chapter 1 (there is a different account in chapter 2) says that "



And God said, "Let us make Adam (man? humankind?) in our image, after our likeness. They shall rule the fish of the sea, the birds of the sky, the cattle, the whole earth, and all the creeping things that creep on earth. And God crated man is His image, in the image of God He created him; male and female He created them. God blessed them and God said to them, "Be fertile and increase, fill the earth and master it; and rule the fish of hte sea, the birds of the sky, and all the living things that creep on." Gen. 1:26-28.



There are some notoriously interesting interpretive issues here for students of bilitical interpretation about the plural and singular switching and about what the image of God means. All sorts of interesting interpretations have beeen given in the religious traditions. God was talking to the angels. God was speaking in the royal we. Be that as it may, Genesis 1 sees Adam (Humankind) as being like God. And indeed the story of Genesis can be read as humans attempting to become even more like God by eating from the Tree of Life and becoming immortal. And it is reasonable to interpret the prohibition on murder in the hebrew bible as associated with the idea that humans are made in God's image. From a biblical perspective then it might make sense to base rights on the likeness of humans to God.



In any case, it is interesting that John Locke bases his argument of natural rights on the "workmanship" theory that we are God's property. Why does Locke not appeal to the idea humans are made in the image of God? I don't have the complete answer to this question today. But it does seem interesting that he doesn't appeal to that concept in his Second Treatise. In part, perhaps, his theory about the origin of natural rights in his Second Treatise is principally based on "reason" and he differentiates between insights from reason versus revelation, as he indicated in various places in his writing. His focus on Scripture's meaning is given in his First Treatise where he takes on Filmer's theory of absolute power of monarchy. There Locke engages in much more detail with Scripture and even may have written the attack on Filmer to really provide an engagement with Scripture, as Michael Zuckert has suggested in Launching Liberalism, 137.



A detailed analysis of Locke's Scriptural exegesis there is beyond the scope of the current reflection. But it is surely of interest that Locke, one of the foremost champions of natural rights, did not argue from the fact that we are made in the image of God. This is particularly interesting given the fact that he does place such a strong stress on reason as a differentiator between humans and lower creatures and as a sign of maturity when a child becomes responsible to join the social compact and no longer subject to the parent's authority. It would seem that Locke could have made an argument from reason that humans have natural rights because they are like God in having reason. But he did not. Instead he implies that the equality and independence of humans derives from their being the workmanship of God.



There are some other puzzles in Locke's workmanship argument. If we are the property of God, why does this give us any rights in things at all? Wouldn't it make more sense to say that God has rights in us as property than to say that we have rights not to be hurt or killed by others. There is something curious here about talking about two types of property causing damage to each other. If a branch falls off a tree and lands on my flower pot and breaks it, it seems unusual to claim that the tree is responsible for violating the rights of my vase. Rights tend to inhere in the property owners not in the property itself. Except the difference of course is that living creatures are property with consciousness and free will. Thus on Locke's theory it might make sense to say that humans are property with wills. And because we have wills and understanding, we have obligations not to damage God's other property (ie other people). In this sense, humans are a special kind of property of God, like slaves can be human property.



There is another puzzle in Locke's workmanship theory. He implies that the idea that we are all workmanship of God makes humans all equal. But he noowhere argues for that in the Second Treatise. He simply states it. And this seems to be an interesting gap in his theory given the importance that the equality and independence of individuals in the state of nature has to his argument.



What this means for a theory of natural rights in general is of course relevant to a much broader discussion. But what this suggests is that there are some interesting gaps in Locke's foundation of natural right theory. And if proponents of natural rights want to base it on Locke they have to at least grapple with these interesting questions in Locke's theory.

Are We the Workmanship of God or Do We Own Our Own Bodies and Selves? An Inconsistency in Locke and a Question of Natural Rights and Abortion

Our ownership of our bodies is a widely held right that most people talk about and assume is included in the right to life, liberty and property, the triple play of natural rights. The right to our bodies is assumed to be included in property itself (our bodies are our property), in the right to liberty too, and certainly a fence around the right to life. No one can harm me because that is a derivative protection against the right to life. This right to our bodies and ourselves is often assumed to underlie the woman's right to choose and to thus hold off the right to life of the fetus. It can also be used to justify a right to die, a la Kevorkian. Our selves, bodies and lives belong to us.

But few who are not deeply into the scholarship on John Locke know that this right to ourselves and our bodies is not self-evidently the basis of rights in the philosopher who is so often credited with the most important statement on natural rights and the foundation of American rights. I've talked elsewhere on this blog about how the Declaration of Independence is thought by some to be a Lockean document of rights and how natural rights thus provide the framework for interpreting the American Constitution, a position I find problematic.


But now I want to probe an ambiguity in the source of rights for those who look to natural rights and thus back to Locke. If Locke or natural rights is to provide the basis of "our rights" and a framework for interpreting the Constitution, then it would seem to matter what Locke meant. The only other alternative would be to ignore Locke altogether but then some other foundation of natural rights would have to be developed in which case there were be conflicting arguments about what natural rights actually mean and where they come from.

Locke in fact seems to make two sorts of claims with respect to our bodies and our lives that on the surface at least do not look compatible. This raises an interesting problem for interpreting Locke but it also raises an even more interesting problem about rights and the problem of abortion. Interestingly enough and not so surprisingly really a very detailed problem of interpretation in Locke is tied to a much broader issue of social policy -at least for those who want to build their case on Locke or natural rights of a Lockean sort. So what is this niggling problem of interpretation?


Early in his Second Treatise on Government Locke justifies the right to life, liberty and property as deriving from the fact that human beings are the workmanship of God. Because we are the workmanship of God, we are therefore God's property. Thus one person has no right to take the life of another or to harm that person. Since we each belong to God, taking the life of another person is to damage God's property.

Locke writes in one of his most famous passages on the state of liberty in nature(II, 6):

But though this be a state of liberty, yet it is not a state of license: though man in that state have an uncontroulable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself ... The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his not another's pleasure: and being furnished with like faculities, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for our's. Every one, as he is bound to preserve himself, and not to quit his station willfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of life, the liberty, health, limb or goods of another.

It is important to note that this argument-that we are the workmanship of God- is arguably a Lockean interpretation of Scripture and thus fits in with Locke's assumption that God can be shown to exist through reason and that natural law depends on the assumption of God's existence. And for Locke there is a complex interplay throughout his work between his reading of Scripture (Revelation) and his assumptions about what can be known through Reason.

The workmanship argument that humans are God's handiwork thus alludes back to Scriptures account of creation but does not exactly argue from the fact that man is made in God's image, which would be a different argument. Killing a person would be like defacing God, a plausible interpretation of what Scripture (at least Genesis 1) actually meant and a plausible understanding of the murder prohibition in Scripture. And Locke does talk about the "image of God" justification in his response to Filmer in the First Treatise on Government. But this is not exactly what Locke says here in the Second Treatise. He does not quote the "made in God's image" statement and instead says we are the workmanship of God.

Thus one source for the right to life according to Locke is the fact that we are God's property. No one can take our lives for that reason because they are harming God's property. What about harming us or enslaving us? Locke argues that those rights are derivative: because we can't be sure that a person who tries to harm us or who tries to enslave us won't take our lives, we are protected from harm and slavery too. These are fences around the right to life. This workmanship argument is thus one of Locke's arguments in the Second Treatise grounding the right to life, liberty and property. He presents it as both known by reason (an understanding of what creation means) but leaves the impression that it can provide an interpretation of Scripture too.

But there is another argument in Locke that on the surface that seems to be contradictory. Locke also argues that we have property in ourselves. This language seems to contradict the workmanship hypothesis. Locke writes in the beginning of chapter 5: "every Man has a Property in his own Person. This no Body has a Right to but himself." Now this statement sounds very much like the widely held assumption that the average person has about his or her own rights. I have a right to myself and my body. This right to myself is what grounds the right to choose (A woman has a right to her body over the claim of her unborn baby). This right also would ground the right to die-its my self and my body and I have a right to do with it what I please.


On the surface this later statement of Locke seems to conflict with the workmanship argument. As Michael Zuckert, a profound interpreter of Locke, puts it "This claim conflicts with the transcenent natural law in a particular manifest manner for that argument had held that huamn beings belong to God and not to themselves. Here Locke said the opposite." (Launching Liberalism, p. 193). Zuckert continues " We stand now at the most interesting and also the most elusive point in all of Locke's political philosophy. It is the most interesting, for its represents the core of his philosophy--the notion of human beigns as rights bearers by nature because they are self-owners. It is the most elusive, for Locke was not clear in presenting his reason or making this assertion."

The fact that Locke seems inconsistent on this point is troubling and raises complicated issues in Lockean interpretation. As I noted, these could be simply obscure problems in the history of political science or philosophy were it not for the fact that Locke had such an influence on the conception of natural rights in the modern world and in America and for the fact that most people routinely assume that we own ourselves, which is not in fact the only basis for rights in the natural rights tradition.

It is beyond the scope here to investigate completely the possible solution to the inconsistency in Locke. At issue in fact is not only this particularl inconsistency here but the very question of whether Locke was a consistent thinker and whether consistency should be assumed for him. Michael Zuckert has done a superb job in Launching Liberalism of reviewing the debate between those who think that Locke may have used inconsistencies intentionally to point to a deeper esoteric meaning that he felt he could not say explicitly. Others think that he was not a consistent thinker and that the Second Treatise was in fact a different kind of book perhaps that didn't have the rigors of his philosophy. This issue of consistency incidentally is not just a problem in Locke. It is arguably a critical question in all interpretation. Anthropologists for a long time have argued in a debate over "rationality" (see Bryan Wilson's edited volume, for example) whether to assume "natives" used the same type of consistency and logic that "we do." The question about Locke here is the same sort of problem. How do interpreters know when to attribute consistency to others and thus resolve the inconsistency or when to simply leave the inconsistency in place.

Zuckert offers a way of reading Locke that sees significant meaning in this apparent inconsistency. He argues that Locke essentially recognized that self-ownership was the foundation of rights. But he based this notion of self-ownership on the discovery of the "self." Locke realized that the human self was a different kind of self than other animate selves because it realizes that the "I" persists over time and is the basis for the "temporality" of the human being: "the human self is a temporal entity as no other is." (Launching Liberalism p. 195). In linking rights to this self, Locke breaks from prior tradition in not linking natural rights to natural law. "With the discovery of the 'I' self, Locke thus founded ego psychology as the study of the constitution of the 'I.'" I cannot do justice to the complexity of Zuckert's argument in this short context. Zuckert is one of the most interesting interpreters of Locke, paying attention to the complexity of Locke's thought and anyone interested in natural rights and Locke should treat Zuckert's works as a must read.

There is another interpretation of Locke possible, however, besides Zuckert's. It is possible that the contradiction between the workmanship hypothesis and the "self-ownership" argument in Locke is only apparent and not real. When Locke writes that "every Man has a Property in his own Person. This no Body has a Right to but himself" The question is what does such a right mean to Locke. Does Locke mean a person has a property in his body and life the way he has a property in creatures? Perhaps. But another possibility is that Locke means a person has a right in his own person to his own labor. In other words, a person's property is not over the body and life but in the output or labor over which a person does have control. Indeed, immediately after Locke says that a person has a right in his person he gives his famous labor justification for property. He writes:

Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature has provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.

Here Locke explicitly says that "his labour" is "his own. An alternative reading of Locke, then, is that Locke never thought that a person had self-ownership over his or her own body or self. Instead, what Locke thinks is that people have a right only to their own labour. Their bodies belong to God but their labor which is the output of their own selves belongs to themselves. Because their labor belongs to themselves, they can alienate it and "mix it" to make something their own. This labor theory of property of course raises all sorts of interesting questions that have been debated in their own right. But for the present purposes this gives an account of Locke that resolves the apparent contradiction. It also creates a kind of parallel between Locke's claim about God's rights in people (we are the workmanship of God, the result of God's labor and hence his property) and a Person's right to the output of their labor. Labor is what gives property rights, both of God in humans and of humans in the output of their labor. This interpretation would also make sense of the fact that though people are God's slaves (property) their output and effort belong to themselves. This would differ from a human slave whose output would be owned by the human owner. But in the case of humans, Locke says that they were created with the expectation that they would procreate and multiple and expend their labor to sustain themselves. So though humans are God's property, God gave them a purpose and entitled them to own the output of their labor.

The pluses and minuses of these various interpretations could be debated in much more detail than is possible here and I hope to come back to the question in more detail in another context. For at issue, as we see, is not not a thorny problem in Locke. That interpretive problem in Locke goes to the heart of a central claim in natural rights theory and assumptions of everyday holders of American rights: do we have rights to our bodies and ourselves? On my reading, Locke never intended to attribute self-ownership to individuals, the way Zuckert reads him. On Zucker's reading, that was Locke's innovation over Acquinas and Hobbes and represent a significant innovation. But though I disagree with Zuckert, that does not mean that I therefore adopt the view that we belong to God. If I am right that that is what Locke meant, that does not mean that that should be the foundation of rights in America. But of course that question starts another whole discussion of whether natural rights should be the foundation of American rights that I have begun to address elsewhere in my discussion of Scott Gerber's To Secure These Rights.