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.