On unnecessarily codifying specific freedoms such as the freedom of religion
Apr 6, 2012

On unnecessarily codifying specific freedoms such as the freedom of religion

Should there be explicit protection for the freedom of religion in the founding documents of society? This question may at first seem to be an obvious 'yes' since almost everyone - including most atheists such as myself - consider it to be abundantly clear that people should have the freedom to believe in and practice whatever religion they like. I would immediately reject any constitution or charter that did not protect such things. The question, however, is whether religious freedoms should be explicitly enumerated and codified in these documents or whether a larger principle of freedom which includes religious freedom would suffice?

The first amendment of the US constitution guarantees the freedom of speech and assembly. A group of people assembling and having a leader speak is thus already protected explicitly and the freedom to have a church service, say, is not further protected by adding a clause to explicitly protect religious freedom. The spirit of allowing for the freedoms of life, liberty, and the pursuit of happiness is one sufficiently broad that it encompasses all of religious practice inside it and, indeed, most other things too. There is thus no special need to codify religious freedoms.

Consider the case of atheism. Unless one wants to abuse language, atheism is not a religion. It is, however, and ought to be, entirely protected just as religion is by the protection of freedoms outside of religion. There have even been some court cases which have considered atheism, for the purposes of first amendment applicability, to be a religion that ought to be protected. However, one is allowed to proselytize and congregate with other atheists not by considering atheism as a religion but by the right to free speech and assembly. By taking religion and putting it on a pedestal of protection, there is an implicit sense in which atheism is less valid of a thing to be protected. There should be no prioritizing of certain types of potential discrimination over other types, and religion should receive no special status above and beyond that of any other type of beliefs. Indeed, it gives a sense of illegitimacy to a belief system like atheism as a somehow second class belief system not worthy of the special protection of an explicit mention in the constitution.

Consider the phrasing in the Canadian Charter that protects against discrimination:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Good. Nobody should be discriminated against and in particular none of those possible ways people may be discriminated about should be allowed in laws. However, there is something unnecessary about adding everything after the 'in particular'. The first half of the sentence already protects these and one questions what is added by the subsequent partial list. A minor quibble, perhaps, but consider the case of sexual orientation:

There is a movement in Canada to have the Charter amended to include sexual orientation to that list. Certainly nobody should be discriminated against based on sexual orientation and in the US in particular there currently is truly horrific discrimination against members of the LGBT community that extends beyond the refusal to allow marriage equality is the overwhelming majority of states. And as long as one is going to be enumerating examples of types of discrimination it is absolutely true that sexual orientation should be added to the list. However, this only demonstrates how no such list could ever be complete. By having it, there is a sense in which sexual orientation is somehow less protected than, say, gender or race despite that the first half protects all these and any else equally. I would suggest that instead of acting to add one more thing to the inevitably incomplete list, we abandon the approach of a list all together. Likewise, as I have argued, I don't believe there should be a gay marriage amendment to the constitution since, in my view, it already is protected and it is something of an insult to think that such a thing is necessary.

I think it is fair that when there is an example of widespread and egregious discrimination or harm then appropriate laws recognizing and ameliorating the situation is important. The equal protection clause of the constitution technically already protected racial minorities before the Civil Rights Act but that doesn't make it any less important or necessary to pass regardless. Historically, the US was founded out of religious persecution in Europe and as such bravely embraced the principles of freedom and liberty like never before. Today, however, it is largely other problems (such as discrimination based on sexual orientation) that dominate. Laws passed by legislatures come and go with the times, but the idea behind founding documents like Charters and Constitutions are meant to be somehow more timeless and fundamental. They do not need to make explicit references to a long, but inevitably incomplete, list of potential grievances when broader guiding principles will suffice in a far more universal and elegant manner that does not implicitly leave any group or type of discrimination out. 

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