ARE RELIGIOUS BELIEFS AND PRACTICES entitled to special exemptions from laws of general application?
Consider that according to a 2006 decision of the Canadian Supreme Court, despite the fact that there is a general ban on weapons in public schools, despite the fact that the carrying of a kirpan, a Sikh ceremonial knife, is prohibited in airplanes and courts, despite the fact that a kirpan is a bladed weapon capable of wounding or killing people, and despite the fact that many devoted Sikhs wear plastic or wooden kirpan, the court held that a Sikh student had the right to carry the most dangerous kind of kirpan so long as “his personal and subjective belief in the religious significance of the kirpan is sincere,” including the belief that wearing a plastic or wooden kirpan would not suffice, since adherents of a religion “may adhere to the dogma and practices of that religion to varying degrees of rigour.”
Consider, on the other hand, that, to preserve the principle of French laïcité — ensuring a secular public sphere with people associating as equal citizens without regard to religious or ethnic identities — a 2004 French law bans conspicuous religious symbols — such as Muslim headscarves, Jewish skullcaps, or large Christian crosses — in public schools.
What’s going on here? How can the legal systems of two modern Western democracies adopt such conflicting approaches to the treatment of religious practices? Two recent books — one fiction, the other nonfiction — address these confounding issues, raising timeless questions and offering some provocative answers.
In The Children Act, author Ian McEwan, whose 15 previous novels have won the Booker Prize and a National Book Critics Circle Award, among others, seriously grapples with drawing the line between respecting the free exercise of religion and protecting the best interests of children.
Fiona Maye, a High Court judge in London presiding over sad and difficult cases in family court, is confronted with a petition from a local hospital seeking permission to administer a life-saving blood transfusion to Adam Henry, three months shy of his 18th birthday, who is suffering from leukemia. Adam and his parents are Jehovah’s Witnesses. They have refused the transfusion because according to their faith it is a sin to accept blood products into their bodies.
Judge Maye convenes a hearing at which the competing interests are arrayed before her. The hospital calls a consulting hematologist who explains that Adam is producing no new blood cells but a transfusion administered immediately will give him an eight to ninety percent chance of a full recovery. Without it, Adam will suffer the sensation of drowning slowly, with potential internal bleeding, renal failure, and loss of sight. “The only sure thing is that it would be a horrible death.”
On cross-examination by the parents’ lawyer, the consultant agrees that freedom of choice of medical treatment is a fundamental human right in adults and that the transfusion without consent would constitute a trespass of the person, or indeed an assault on that person. To the claim that Adam is very nearly an adult and has expressed his views against the treatment intelligently and articulately, the witness responds sharply: “His views are those of his parents. They’re not his own. His objection to being transfused is based on the doctrines of a religious cult for which he may well become a pointless martyr.”
Adam’s father testifies that he and his wife found truth and peace through Bible study at the Jehovah’s Witnesses’ Kingdom Hall. They learned from Genesis, Leviticus, and Acts that God forbids the mixing of one’s blood with another’s because it is pollution and contamination. “The Bible is the word of God. Adam knows it must be obeyed.” But if refusing a blood transfusion would cause his death, the father responds, “He’ll take his place in the kingdom of heaven on earth that’s to come.”
Under cross-examination, the father concedes that if Adam agreed to the transfusion, he would be “disassociated” from the Jehovah’s Witnesses, but the father quickly adds, “But it isn’t going to happen. He isn’t going to change his mind.”
The last witness is Adam’s social worker. She testifies that in his notebook, Adam had written, “I’m my own man. I’m separate from my parents. Whatever my parents’ ideas are, I’m deciding for myself.” But when the judge asks the social worker what action she thought the court should take, she responds: “A child shouldn’t go killing himself for the sake of religion.”
This suspicion of the dire consequences of religion and the deference it receives is at the heart of Brian Leiter’s thought-provoking book Why Tolerate Religion? A professor of law and Director of the Center for Law, Philosophy, and Human Values at the University of Chicago, and co-editor of the annual Oxford Studies in Philosophy of Law, Leiter brings an interdisciplinary perspective and insightful analysis to his perplexing subject.
Leiter’s book might better have been titled Why Privilege Religion? He quickly moves past the threshold question whether open and enlightened societies can punish or discriminate against religious beliefs and practices that do not cause harm (his answer: no, they should tolerate them) to the more intriguing question of why, beyond being tolerated, religion should be singled out for preferential treatment in both law and public discourse, while other obligations of conscience are not. As Leiter puts it, why should the state “have to tolerate exemptions from generally applicable laws when they conflict with religious obligations but not with any other equally serious obligations of conscience?”
Leiter makes a powerful case that what “religion can no longer claim is that only the demands it places on conscience deserve special legal solicitude.” And he goes further. He argues that in the United States the law “has now moved to a dangerous extreme in its willingness to permit ‘religious believers’ to be exempt from the law.”
But first he must define “religion.” Since certain religions such as Buddhism do not include a belief in God, Leiter develops a definition that does not depend on a supreme being, and distills three essential ingredients from all religions. First, a religion makes categorical demands that must be satisfied no matter what an individual’s antecedent desires and no matter what incentives and disincentives the world offers up. Second, a religion requires beliefs based on faith, and these are insulated from ordinary standards of evidence and rational justifications, such as ones we employ in both common sense and in science. Third, religion offers existential consolation by rendering intelligible and tolerable the facts of life, such as suffering and death.
As soon as Leiter draws attention to these essential features of religion, he points out that throughout the world today,
nonreligious individuals find ways of achieving existential consolation — from philosophical reflection, to meditation, to therapeutic treatment — that do not run any of the risks of commitment to belief systems involving the potentially harmful brew of categorical commands and insulation from evidence.
Leiter concludes that while there are indeed compelling and principled reasons for the state to respect liberty of conscience, there is “no apparent moral reason why states should carve out special protections that encourage individuals to structure their lives around categorical demands that are insulated from the standards of evidence and reasoning.”
To put it more bluntly, why would a pluralistic and secular society single out for special treatment any system of belief?
Indeed, Leiter argues that if general compliance with laws is necessary to promote the “general welfare” or the “common good,” then selective exemptions from those laws for religion is a morally objectionable injury to the general welfare. Furthermore, Leiter argues that there are limits — he calls them “side-constraints” — to the toleration that society will tolerate, based on what John Stuart Mill called the Harm Principle.
The “only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” That same civilized community will tolerate ideas and practices unless they cause harm to the individual or others. But the problem is defining “harm” and “cause” and Leiter devotes little attention to these important questions except to note that when it comes to American law, the First Amendment protects the expression of even the most hateful ideas, which may “cause” offense and unrest, so long as they do not pose a direct and imminent threat of illegal action.
All of this brings us back to the London courtroom of Judge Fiona Maye. She’s heard from the lawyers and witnesses, but she needs to hear from one more person, 17-year-old Adam Henry. She takes a taxi to the hospital and meets the young man whose fate may well rest in her hands. He’s bright and funny. The judge asks if he understands that without the transfusion he could die, and he responds “Yup.” She probes. “I’d like to know whether you’ve considered this carefully, that you may be ill and disabled, mentally, physically or both, for the rest of your life.” Adam responds, “I’d hate it, I’d hate it. […] But if that’s what happens I have to accept it.”
Judge Maye returns to her courtroom, where everyone is awaiting her ruling. After reciting why the case urgently demands an immediate decision, she respectfully explains that the parents of the young man (referred to as “A” to protect his privacy) “oppose the application on the basis of their religious faith, which is calmly expressed and profoundly held. Their son also objects and has a good understanding of the religious principles and is possessed of considerable maturity and articulacy for his age.”
While finding that A “has little concept of the ordeal that would face him” and “a romantic notion of what it is to suffer,” she declines to base her decision on these conclusions. Instead, she relies on the Children Act of 1989, which mandates that “the child’s welfare shall be the court’s paramount consideration.” Noting that the Christian sect of Jehovah’s Witnesses does not “encourage open debate and dissent,” and that A’s childhood has been “an uninterrupted monochrome exposure to a forceful view of the world,” the judge finds that his welfare is better served by his poetry and playing the violin and “by all of life and love that lie ahead of him.”
Consequently, the judge rules that:
A, his parents and the elders of the church have made a decision which is hostile to A’s welfare, which is this court’s paramount consideration. He must be protected from such a decision. He must be protected from his religion and from himself. […] In my judgment, his life is more precious than his dignity.
Given the unexpected turns this engrossing novel takes from there, it suffices for present purposes to leave the entwining lives of Judge Maye and Adam at this stage. While there is an inevitability to the judge’s decision, one is struck by the awesome power of the law to dictate that a person must be protected from himself, in the face of their sincerely held beliefs.
One can assume that Leiter would endorse Judge Maye’s ruling, since it refused to grant religion any special authority to overrule what the law considers to be in the best interest of the individual. But these two books reveal the persistent grip that religion has on believers and nonbelievers alike. Societies that claim to value a zone of personal autonomy must vigilantly guard against intrusions into that zone whether by the authority of government or religion.
Today, the United States is besieged by demands that religion is entitled to special treatment under laws that apply to the rest of us. Last June, in the controversial Hobby Lobby decision, the US Supreme Court voted 5–4 that a closely held for-profit corporation whose owners have “sincere religious beliefs” is exempt from providing certain types of birth control in their employee benefit plans.
In an eerie example of life imitating art, Justice Ruth Bader Ginsburg’s stinging dissent warned that the Hobby Lobby decision could allow employers who are Jehovah’s Witnesses to deny their employees coverage for blood transfusions (and Scientologists could deny coverage for antidepressants, Christian Scientists could deny coverage for vaccinations, and certain Muslims, Jews, and Hindus could deny coverage for medications derived from pigs, including anesthetics, intravenous fluids, and pills coated with gelatin).
Fifty cases are pending around the country filed by religious nonprofits seeking to be exempt even from the compromise option that those who object to providing coverage for birth control may turn the matter over to insurance carriers or third-party administrators.
Earlier this year, 150 conservative religious groups and leaders urged President Obama to include a religious exemption in his executive order banning discrimination against gay and lesbian workers in companies that contract with the federal government. He declined.
There is no reason to believe that these religious battles will diminish. Indeed, the Supreme Court appears quite amenable to entertaining them. Anyone who cares about separation of church and state, and about reducing the divisive impact of these religious conflicts, would do well to heed Leiter’s final words. “Toleration may be a virtue, both in individuals and in states, but its selective application to the conscience of only religious believers is not morally defensible.”
Stephen Rohde is a constitutional lawyer, lecturer, writer, and political activist.