Freedom of religion tests society’s limits

February 2, 2010

By Janet Keeping
Sheldon Chumir Foundation for Ethics in Leadership

Janet Keeping

CALGARY, AB, Feb. 2, 2010/ —  At the heart of every argument in support of freedom of religion is respect for personal liberty —  the right of individuals to direct the course of their own lives and  adopt and live according to a belief system of their choosing.  Also key is the right to associate with people who think as you do, to form groups of like-minded people to worship communally.

But what if the practice of a faith violates the society’s laws or, more problematically, its social norms? Should they be limited?

There are powerful arguments in favour of robust protection for freedom of conscience and religion. But the claim, “Who are we to say their religious practices are wrong?”, is not one of them.

So-called “ethical relativists” have the view that ethical judgements, and the public policy decisions that follow from them, cannot be made by outsiders because only those within a religious community can make those evaluations. This is both wrong and dangerous.  Not only is it permissible for the broader community to make such judgements, it is imperative to do so in the interests of both the public and members of the very community under scrutiny.

Making a difficult decision

Granted, determining where freedom of religion ends and the right of the broader community – as represented by government – to limit religious freedom begins is sometimes difficult. Mistakes are sometimes made in determining what is truly harmful to society and requires a call for the state to intervene.

For example, many of us doubt the necessity of requiring a small number of strictly observant Hutterites to carry photographs on their drivers’ licenses, as was recently ruled constitutional by the Supreme Court of Canada. This infringes on religious rights for little demonstrated benefit to the public, and hence is an unwise decision.

Such missteps do not alter the fact that freedom of conscience or religion can only extend so far. Some religions permit husbands to beat their wives, but Canadian laws make domestic violence illegal, and serious enforcement of such laws constitutes a major step forward in our never-ending struggle for a more decent society. Human sacrifice, of course, is blatantly off-limits – no matter how fervently you believe it is required by your religion. It is murder, as are so-called “honour” killings, and no talk of religious (or cultural) freedom is going to, or should, save you from significant jail time.

New challenges

Our modern world has introduced dilemmas that tax once-unquestioned beliefs. Where religious practice is not so obviously beyond our collective moral code, things can get more confusing. Consider circumcision. With increased immigration from parts of the world where female circumcision is required by religion or tradition, western countries have had to come to grips with a previously unheard of practice. For the most part, public opinion has been clear: Female circumcision is mutilation of the body. Although not usually fatal, ethically some consider it akin to human sacrifice, that is, clearly unacceptable.

But cultural relativists disagree. They insist we have no right to judge the ethics of circumcision – “their” standards are “their” business and we should refrain from interference.

This is nonsense. If you accept there are any limits, such as that it is right to ban religiously-inspired killings, then relativism as a principle has already been defeated. And if you don’t reject the extreme cases, dialogue can’t continue because you have missed the point of ethics altogether.

Informed discussion must be open-ended and open-minded. According to some traditions, genital cutting is performed as a symbolic act only. It does not mutilate and does not diminish the girl’s or woman’s health in any way. Is that version of female circumcision significantly worse than other things we readily tolerate, such as male circumcision and piercing the ears of young children?

Brutally destructive female circumcision is and should be prohibited by law and those who perform it punished severely. If symbolic circumcision is acceptable, this isn’t because ethics are relative, but because the symbolic practice isn’t sufficiently harmful to warrant prohibition by law.

The state has a duty to protect the vulnerable from those who would harm them in the name of religion, tradition or any other justification. We must make moral judgements and sometimes – as with “honour” killings – it is appropriate that the law be used to enforce them.

Freedom of conscience and religion must sometimes be limited by society as a whole, precisely because ethics aren’t relative, but instead a set of shared standards embodying a societal commitment to humane and effective governance.

Janet Keeping is a lawyer and president of the Sheldon Chumir Foundation for Ethics in Leadership.

Channels: Calgary Beacon, February 3, the Guelph Mercury, February 13, the Prince Rupert Daily News, February 18, 2010

0 Responses to "Freedom of religion tests society’s limits"

  1. Avatar
    ml66uk   February 2, 2010 at 9:29 pm

    An excellent article. One small thing though – female circumcision is not a "previously unheard of practice" in western countries, as the USA also used to practise female circumcision. Fortunately, it never caught on the same way as male circumcision. There are frequent references to the practice in medical literature until at least 1959. Most of them point out the similarity with male circumcision, and suggest that it should be performed for the same reasons. Blue Cross/Blue Shield had a code for clitoridectomy till 1977.

    One victim wrote a book about it:

    Robinett, Patricia (2006). "The rape of innocence: One woman's story of female genital mutilation in the USA."

    Why don't boys get the same protection?

  2. Avatar
    Frank OHara   February 3, 2010 at 6:02 am

    I don't know about the laws in Canada but the US Supreme Court has addressed this issue. If I remember correctly, it was because a couple, due to their religious beliefs, wanted to withhold professional medical treatment for their daughter preferring "faith healing." They claimed their right to religious freedom as guaranteed in the US Constitution. The USSC ruled that the party with the most to lose prevailed. The child could lose her life and the parents could only lose a small part of their religious beliefs and practices.

    Here's an issue you can sink your legal teeth into that falls along the same line: The US Constitution contains "The Equal Protection Clause" in the 14th Amendment. This clause unequivocably states that all laws must be effective on all classes of citizens. The USSC has ruled that this can be superceded when the government has a compelling interest. The 1996 Female Genital Mutilation Law states that the female genitals can not be cut or altered for any reason except present and pending medical indication. However, routine or ritual infant male circumcision is a common practice in the US. How is this allowed to continue as it is a direct conflict with the Equal Protection Clause? What is a compelling governmental interest in allowing this to continue? Why shouldn' the 1996 FGM Law be declared unconstitutional and replaced with a law that protects the genitals of all US citizens equally? The world's medical associations are in unanimous agreement that there is no medical reason to be addressed in infancy with circumcision.

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