The title of Winnifred Fallers Sullivan’s book, “The Impossibility of Religious Freedom,” (Princeton University Press, 2005) is both enigmatic and provocative. As she states in her introduction, “the impossibility of religious freedom is not obvious, nor is the advocacy of such a position popular.”
Because religious freedom is a bedrock principle enshrined in many national constitutions and international declarations, Sullivan’s thesis begs close scrutiny.
Article 18 of the United Nations Universal Declaration of Human Rights (UDHR), ratified in 1948, declares:
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.
The First Amendment of the U.S. Constitution states that
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
Which of the freedoms described or implicit in these declarations is “impossible?” Let’s focus for a moment only on the first clause of the UDHR declaration. The right to freedom of thought and conscience, though denied by many regimes throughout history, seems unassailable in liberal democracies as long as thought and conscience are not construed to include practice. There is a broad consensus in these democracies that all people should be free not only to think and believe but also to publicly profess any idea that seems compelling to them. Acting on such beliefs, however, may infringe upon the freedoms of others. Thus, American Nazis may freely believe whatever they like about African-Americans, Jews, and homosexuals, but they are not free to plant bombs outside synagogues, black churches, or gay bars.
This right—to freedom of thought and conscience—necessarily includes the right to religious beliefs, which flow from thoughts and involve matters of conscience.
Does the UDHR need to explicitly mention religion in that first clause? No. It could have said, simply, that “Everyone has the right to freedom of thought and conscience,” because religion is a matter of thought and conscience.
But, then, is religious freedom “impossible” when understood in this way? The question takes us to another level, where we must decide what religion is. The impossibility of religious freedom may result from our inability to make this prior determination. If there is no universal consensus as to what constitutes religion, then religious “freedom” cannot be protected.
This may seem like foolish quibbling over semantics. Doesn’t everyone know what religion is? But in courts of law, such determinations must be made. The law cannot protect something that has not been coherently defined, and this is precisely the problem that Winnifred Sullivan discusses in her book.
Sullivan, an Associate Professor of Law and Director of the Law and Religion Program at the University of Buffalo, was called as an expert witness at the trial of Warner vs. Boca Raton, a 2005 case involving the enforcement of regulations at a municipal non-denominational cemetery in Boca Raton, Florida. The plaintiffs were a group of Catholic, Protestant, and Jewish families who had placed religious artifacts (e.g., crosses, statues, stars of David) around the graves of departed family members. Their contract with the cemetery clearly stipulated that only flat horizontal markers were allowed. Nevertheless, they sued the city, claiming infringement of their First Amendment right to free exercise of religion.
The task of the court was to determine if the plaintiffs’ vertical enhancements of the grave sites were in fact “religious” in nature, as they claimed, or just “personal expressions,” as the city claimed. But the very process of deciding what counts as religion is loaded with constitutional implications because of the “establishment” clause of the First Amendment. Imagine a U.S. Federal court deciding that “lived” or “folk” religion, which was so clearly in play here, does not deserve the legal protection offered to established hierarchical and authoritarian religion. And yet that is exactly what happened in the Warner vs. Boca Raton trial.
Sullivan carefully documents the court’s proceedings to demonstrate that ordinary citizens were repeatedly harassed to identify, explain, and justify their religious views concerning burial practices. Their testimonies revealed them to be not just uninformed but largely unconcerned about whether these practices were “required” or even legitimized by the religious institutions with which they identified themselves. Because the plaintiffs were unable to make such linkages, they lost their case.
The court had, in effect, decided that folk religion does not deserve the protections accorded to orthodox institutional religion, though the decision was not framed in this way. Rather, these folk religious expressions were deemed not to “qualify” as religious because they were not specifically endorsed by religious authority.
Sullivan has this to say about folk religion (from pp. 2-3):
The burial practices of the Warner plaintiffs belong to a grouping of religious beliefs and practices that one might call “lived religion,” or “folk religion,” that is, religion that takes place beneath the radar of religious officials and institutions. These practices…reflect U.S. religious diversity, immigrant piety, political idealism, and a do-it-yourself style of religious ritual and iconography. This kind of religion is, for the most part, local and family-centered—but it is also linked in important ways to international and transnational religious communities and traditions.
…
[Such practices] are common throughout the world. We live increasingly in a world of diaspora religious communities in which all religions are everywhere, in which all religions everywhere are governed by secular legal regimes, and in which all religions everywhere are being reinvented by their adherents to suit new circumstances. The Warner trial provides a case study for how and whether, given these conditions, law anywhere today can do what it is being asked to do: guarantee freedom of religion. Courts need some way of deciding what counts as religion if they are to enforce these laws. Is it possible to do this without setting up a legal hierarchy of religious orthodoxy? And who is legally and constitutionally qualified to make such judgments? Can “lived religion” ever be protected by laws guaranteeing religious freedom?
What if the court had decided for the plaintiffs, basing its decision on a recognition of their burial practices as “folk religion?” The city would have been disgruntled, but would justice have been served and free exercise protected?
The problem here is that the definition of religion can be expanded even beyond folk religion. What of unaffiliated mourners, those who declare themselves as “nones” on religious surveys? Are they also entitled to place impromptu memorabilia on the graves of their departed loved-ones? Such displays may be prompted by feelings almost identical to those of believers, so is difference to be found only in their beliefs about the afterlife? What of Unitarians, most of whom hold very divergent personal beliefs that often do not include an afterlife or even a supreme deity?
T. Jeremy Gunn, in an article entitled “The Complexity of Religion and the Definition of ‘Religion’ in International Law” (Harvard Human Rights Journal) points out that the term “religion” remains undefined as a matter of international law. Even national constitutions that guarantee fundamental rights of religion fail to define it. This might not matter were it not that religion is so much more complex and fraught than other terms left undefined, such as “conscience” and “thought.” What is even more remarkable than this failure is the broad historical lack of consensus about the meaning of the word. As one historian (Brian C. Wilson, quoted in the above article, endnote 12) wrote, the “effort to define religion is as old as the academic study of religion itself, [and] the definitional enterprise…continues in full vigor.”
So far, we’ve accepted the prerogatives of religion as a “given,” i.e., whatever can be determined to constitute religious expression is to be given special status. But why should this be so? Is there any person or group of persons who should not have had the right to install vertical displays on their families’ grave sites if those deemed “religious” were allowed to do so?
Presumably, most of the population of Boca Raton is religious, so what is the point of a cemetery regulation banning vertical displays when, clearly, almost anyone buying a cemetery plot can get a religious exemption? And where does that leave the minority of “non-religious” folks? Are they to understand that only vertical displays of a religious nature are to be tolerated? If so, can there be any clearer case of religious discrimination—in this case, discrimination against a non-religious minority by a religious majority?
What do we have here that is substantially different from the suppression or “disprivileging” of religious minorities by certain Islamic states? Discrimination against the “non-religious” is still a form of religious discrimination.
This is where the title of Sullivan’s book starts to become clear. Religious freedom is “impossible” because its putative guarantor, the secular state, cannot decide what religion is and cannot therefore guarantee its freedom. If the secular state were to define religion for purposes of litigation, it would be in violation of disestablishment clauses, which prohibit government from “making laws respecting an establishment of religion.” In other words, the state cannot decide what counts as religion and what does not. If any state makes this determination, it has curtailed freedom of religion.
The other prong of this conundrum lies in the implied privileging of “religious” freedom over “freedom.” Why is religion singled out for freedom, as if religious adherents had rights that others do not? Sullivan asks,
What would be lost if law focused not on the special case of religion but on the accommodation of difference generally, and what compromises any such accommodations imply for commitments to equality? Without an explicit protection for religion, guarantees of freedom of speech, of the press, and of association would continue to protect most of those institutions, including religious ones, usually thought necessary for a free democratic society. With respect to some religious practice, though, religious persons and communities would, like other groups, have to make arguments for the special legal accommodation of difference to legislative bodies… Government favoritism (or endorsement) could be prevented by vigorous insistence on principles of equality, as is happening now in the case of gay marriage. Groups making a case for differential treatment would be required to make a very strong showing, as in race cases, of past discrimination or present need, to justify special legal treatment.
And she concludes her final chapter with these words:
The evidence in the Warner case could be understood to suggest that what is sought by the plaintiffs is not the right of “religion” to reproduce itself but the right of the individual, every individual, to life outside the state—the right to live as a self on which many given, as well as chosen, demands are made. Such a right may not be best realized through laws guaranteeing religious freedom but by laws guaranteeing equality.
Okay, okay. Gil Bailie and I will never see eye-to-eye about same-sex marriage. He’ll never convince me because he doesn’t offer empirical evidence for his claims—you know, trend lines, data sets, surveys, even anecdotes. And I’ll never convince him because, well, I can only offer those things (interlaced with generous dollops of opinion, of course).
Once again, Gil, your dire auguries about the effects of same-sex marriage are contradicted by demonstrable reality. Even Maggie Gallagher of the National Organization for Marriage (NOM), in a recent interview with Michelangelo Signorile, admitted that her claims—by strange coincidence identical to yours—were unsupported by evidence. How to explain, for example, that the state of Massachusetts legalized same-sex marriage five years ago and its divorce rate is still the lowest in the country? How to explain that states where support for same-sex marriage (SSM) is highest have lower rates of divorce and teen pregnancies than those where that support is lowest?
TheBentAngle 
U.N. Anti-Blasphemy Resolution Overturned
September 2, 2011United Nations Human Rights Council
The World Trade Center attacks of September 11, 2001 were followed by a surge of anti-Muslim discrimination, harassment, and violence in Europe and North America. Mosques were desecrated, illegal detentions and profiling became more frequent, and the airwaves vibrated with bigoted and incendiary remarks about Muslims. Concerned about the plight of Muslim minorities in predominantly secular or Christian societies and about the increasingly negative stereotyping of Islam in Western media, the Organisation of the Islamic Conference (OIC)* used its influence in the United Nations Commission on Human Rights* to promote a non-binding resolution condemning “defamation of religion” as a human rights violation. The resolution, proposed by Pakistan on behalf of the OIC, was passed on March 26, 2009 with 23 states in favor, 11 against, and 13 abstentions.
(*Note: The Organisation of the Islamic Conference was recently renamed “Organisation of Islamic Cooperation,” and the U.N. Commission on Human Rights is now called the U.N. Human Rights Council [HRC].)
The “non-binding” character of a U.N. resolution should not be construed to mean that its contents are weightless. People the world over look to the U.N. as a source of moral authority; its seal of approval can fortify governments and non-governmental organizations (NGOs) in pursuit of their agendas. Censure by the U.N. can deprive them of legitimacy and tip the balance of world opinion against them.
The OIC was legitimately alarmed about “acts of violence, intimidation, and coercion motivated by religious extremism,” but such acts were already covered under the U.N. Universal Declaration of Human Rights (1948). What was new and significant in this resolution was exactly what its name suggests: It was about defamation, not of persons but of religions—and of Islam in particular. Here are the first three “concerns” voiced by the resolution:
A close reading of the resolution reveals a number of serious flaws.
First of all, what exactly constitutes “defamation” of a religion? We are used to thinking of defamation as a negative and damaging mischaracterization of a person or persons—one that may be actionable in some cases because of the real harm that is done to the targeted individual(s). But a negative and potentially damaging statement about a religion or a theological concept does no harm to any individual(s) until and unless it includes an actual incitement to violence or discrimination against adherents, and the issue of incitement is already well covered in international law. Without the incitement, there is only a criticism, which may fair or unfair, true or untrue, but believers cannot reasonably expect to be protected from criticism any more than politicians or scientists are.
Point 1, concerning “negative stereotyping of religions,” also needs unpacking. “Stereotype,” a wobbly word, usually refers to an overly-simplified characterization of a group (e.g., blondes, Lutherans, lesbians). Most humor would be impossible without it (Ellen Degeneres would pass; George Carlin would not.), and, as we have all learned, humor sometimes causes offense—a small price to pay for free expression. Stereotypes, whether kind or cruel, proliferate in satire, polemic, and even in ordinary conversation, and decisions about whether and how to use them must be left to individuals. We do not want to live in a world where films like “The Life of Brian” cannot be made and where books like “The DaVinci Code” cannot be published. The proper response to negative stereotyping is to propagate the truth, not to censor the expression.
International human rights law does not guarantee freedom from offense any more than it protects people and ideas from criticism. Religious adherents may feel deeply insulted by the beliefs of other religions regarding them: the Mormon practice of doing genealogical research on Jewish families in order to “pray them into heaven” is highly offensive to many Jews, as is Pope Benedict’s 2007 claim that Roman Catholicism provides the only true path to salvation. Hindus, Sikhs, and Buddhists would understandably be offended by the Islamic teaching that disbelievers (in Allah) are actually deniers, or liars, and that they will go to Hell. Of all the world’s religions, the monotheisms are probably the worst offenders when it comes to negative, even vicious, stereotyping of other religions.
Point 2 is a bit of “special pleading” for Islam: “Islam is frequently and wrongly associated with human rights violations and with terrorism.” Frequently, yes. But wrongly? One has to wonder how this blatantly false assertion was ever approved by the HRC. Enough said.
Finally, in Point 3, what does it mean to “incite acts of violence, xenophobia, or related intolerance and discrimination toward Islam and any other religion…through print, audiovisual, or electronic media?” What constitutes such an incitement, and how is one to determine whether a particular op-ed piece or cartoon was intended to incite violence or only to invite a conversation? Wherever Muslim sensibilities have been infused with Islamic teachings about blasphemy, they have become finely calibrated to detect insult toward their religion or the Prophet Mohammad. (As someone once warned me in Saudi Arabia, “Never, never start a sentence with ‘Your father…’ when speaking to a Yemeni.”) Any criticism whatsoever, however harmless by the standards of liberal democracies, can be interpreted as an incitement in cultures where honor codes are so finely tuned.
Ironically, the “incitement” clause can be used to stifle dissent and minority religious views in predominantly Muslim countries. This is an encroachment on the very “freedom of expression” that the resolution affirms in its opening clauses. Even Western liberal democracies have felt the punch: Films like “Submission” (by Theo van Gogh and Ayaan Hirsi Ali) and “Fitna” (Geert Wilders)—both critical of Islam—have been subjected to censorship by European governments. (They are now available on the Internet.)
Because the Defamation of Religions resolution made no attempt to clarify these issues, the European Union, India, and Canada formally objected to it. Ottawa’s representative, addressing the council, said, “It is individuals who have rights, not religions. Canada believes that to extend [the notion of] defamation beyond its proper scope would jeopardize the fundamental right to freedom of expression, which includes freedom of expression on religious subjects.”
It’s worth stressing that, while the resolution itself reaffirmed every individual’s “right to freedom of thought, conscience, expression, and religion,” it was precisely these rights that the resolution tried to suppress. It is as though the very purpose of the HRC had been turned on its head. The Center for Inquiry (CFI)—an NGO in consultative status with the UN—issued a statement warning that the resolution might be used to legitimize anti-blasphemy laws that punish religious minorities as well as non-theists or atheists:
During the two years that followed passage of the defamation resolution, various NGOs, including the Center for Inquiry and approximately 40 progressive Muslim groups, worked to overturn it. The Organisation of Islamic Cooperation, meanwhile, introduced it to the General Assembly twice, in 2009 and 2010, but support for it began to wane. It was eventually abandoned in favor of “General Comment No. 34, Article 19: Freedom of Opinion and Expression,” issued on July 29, 2011. Here are some excerpts:
In Paragraph 48, the Commentary censures blasphemy laws:
Paragraph 49 addresses freedom of expression concerning historical facts:
This has been a very encouraging turn of events and gives us hope that open societies, honoring freedom of conscience and expression, will take root and flourish around the world. Meanwhile, Western liberal democracies that still have anachronistic blasphemy laws on their books should jettison them without delay as a signal to fundamentalist regimes that the West is serious about these freedoms.
Tags:" "Fitna, " Geert Wilders, "Submission, Ayaan Hirsi Ali, Blasphemy, Center for Inquiry, criticism of religion, Defamation of Religions, European Convention for the Protection of Human Rights and Fundamental Freedoms Convention, HRC General Comment No. 34, Islam and terrorism, Organisation of Islamic Cooperation, stereotyping of religions, Theo van Gogh, U.N. Human Rights Council
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