Reviving Freedom of ‘Religion’

In 1890, the [US] Supreme Court … ‘religion’ has reference to one’s views of his relations to his Creator, … In the 1960s, the Court expanded its view of religion … [to include] Buddhism, Taoism, Ethical Culture, Secular Humanism and others.”

In its 1965 ruling … a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God … The Court in this 1970 decision … essentially merged religion with deeply and sincerely held moral and ethical beliefs. … Court in its 1972 ruling … suggested a shift back, … applied only to “a ‘religious’ belief or practice,” and “the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.”

The Court in its 1981 decision … further expressed its reluctance to protect philosophical values. … Jehovah’s Witness [aversion to weapons job] was a “personal philosophical choice rather than a religious choice”. (more)

Centuries ago, Europe saw fierce religious conflicts, made more destructive by states taking sides. States who supported a particular religion might oppose alternatives via repressing local associates or going to war with associated states. To reduce such conflict, some states adopted “freedom of religion”, which meant the state not taking sides between religions.

This was possible in part because of the typical limited ambitions of both states and religions there and then. Neither the states nor the religions were in the habit of dictating most details of most social practices. So the overlap in their spheres of influence was small enough that states could accept a small loss in their sphere as a reasonable price to pay for less conflict.

Over the intervening centuries, the ambitions of states to dictate social details has greatly increased, but the influence and ambitions of the few most popular traditional religions have mostly waned. This has allowed “freedom of religion” to be nominally maintained, at least regarding those few traditional religions. And as the above quote shows, other taking-of-sides by states regarding religious-like groups and behaviors has largely been “solved” by declaring that they are “not religions”.

The problem of course is that the fundamental problem of passionate conflicts being stoked by states taking sides is not avoided merely by declaring relevant groups and behaviors to be “not religions”. So we have in fact recently seen a steady rise in the destructiveness of conflicts due to states taking sides. Yes, it isn’t yet as bad as centuries ago, but it seems to be on its way, and won’t obviously stop before getting there.

Religions have long existed because they serve deep and ancient human needs. So a decline of the once most popular religions does not imply a decline in social groups and behaviors that serve those ancient needs. It is just that those things are less often officially called “religions”. Yet the passions they inspire and the willingness of associates to sacrifice to show their support for some versions and dislike of others has not obviously greatly diminished.

All of which suggests that, unless we somehow revive a freedom of religion-like-stuff, we are likely to suffer increasingly destructive conflicts due to religious-like groups wielding the power of states against each other. But to revive such a freedom, we would have to pick a legal definition of “religious-like”. What could that be?

Clearly it wouldn’t be sufficient to just refer to beliefs in gods or the supernatural. Yes, people have often shown their devotion to groups by their willingness to believe extreme crazy-sounding stuff, and centuries ago gods and the supernatural fit that bill well. But clearly more recently religious-like groups have found other substitutes. And as it won’t work to have courts judge what beliefs are “crazy”, we can’t use that standard as our legal definition of “religious-like”.

A legal standard standard of “deeply and sincerely held moral and ethical beliefs” would be easier for courts to judge, but that would also seem to greatly limit the scope of the state. Libertarians might go for it, but most others would not.

Another possible standard would be that a group is “religious like” if enough individuals pay high enough and visible enough personal costs to promote it. Like strange food, strange dress, protests, and civil disobedience. But then would suicide or terrorism count? A standard that demands expensive destructive behavior to qualify your group as “religious-like” might induce a lot of that kind of behavior, which seems bad.

Yet another possibility would be to call anything a religion if at least ten percent of citizens says so.

At this point I don’t have any good suggestions, though I’d take any of these last three solutions over the status quo. But I’ve hardly started to think about this, and as some of you out there may have good ideas, I decided to just present the problem in this post, hoping to prod your efforts.

Added 9Apr: On reflection, the problem of religious-like groups wielding the power of the state against competitors seems to be more of an issue for governance processes which allow much discretion in how their power is wielded. In a futarchy, such discretion could exist in the choice of values, but is much harder in the choice of bills to consider or in bets regarding which bills promote the chosen values. If so, freedom of religion would be mainly realized via court vetoes over value elements.

We might like to distinguish between (A) religious-like groups going out of their way to beat on or inconvenience particular competitors, and their (B) just demanding extra accommodation in order to show their dominance and to inconvenience all possible competitors. If so, we might want a futarchy court to stand ready to accommodate religion by vetoing value elements that seem examples of (A), while not vetoing based on religion complaints that seem more to be examples of (B).