“Freedom of Religion & The Secular State” By Russell Blackford – Book Review

Freedom of Religion and the Secular State (Blackwell Public Philosophy Series)Wiley-Blackwell | 2012 | 209 pages  $99.95 hardcover | $29.95 Trade Paperback

Reviewed by Steven Paul Leiva an Atheists United member.

Throughout most of history it has been easy for people to assume — and accept — the existence of gods or, later, a god, and the religions they engendered. Even in the beginning of this assumption, in the most primitive of times, there must have been those who doubted, minority though they were, causing “discussions” of the matter.  Those discussions have been fairly heated on occasion when such thinkers as, in the ancient world, Democritus, Diagoras, Epicurus, and Lucretius became quite annoying with their doubts, and, in the Renaissance, when Copernicus, Galileo, and Newton challenged the Church’s spiritual views with material realities. Then there were the thinkers of the Enlightenment, Spinoza, Locke, and Jefferson, among others, who, responding to generations of religious wars, doubted not just the metaphysics of the assumption, but also the politics. And, of course, in the 19th Century, Darwin sparked not a few heated exchanges on the subject.

Because of the recent notoriety of the so called “New Atheists” — Richard Dawkins, Sam Harris, and the late Christopher Hitchens among them — due to their bestselling books and eloquent presentations of their views, we are in another period of heated exchanges between theists and non-theists.  In continuity with the discussions from the past, the current one centers on two philosophical points. One is cosmic: either there is or is not a god, a supreme being of some kind that not only created the universe but maintains a control and concern over the creatures in it. The other is more down-to-earth: whether the state, which maintains a more mundane control and concern over its citizens, shall be separated from the various religions within its territory by a wall, and if so, how tall, thick, and strong should that wall be? As important as the first point is, it is the second that has truly motivated the current debate. Religion, despite its eternal concerns, has never been shy about wanting to wield temporal power, and does so today in many nations in the East, and certain conservative factions of religion would be happy to do so in the West. Whereas more liberal theists, and certainly non-theists, feel such theocratic power does nothing but damage to liberty, human rights, and the unfettered pursuit of knowledge — all central concerns for Dawkins and Harris as scientists, as it was for Hitchens, a tireless campaigner against totalitarian power in any form

Into this debate on the second point comes Russell Blackford’s Freedom of Religion & The Secular State. Written to be an academic text, it also serves as a handbook on the subject (especially in its more popularly priced trade paperback and eBook editions).  Although an avowed atheist, Blackford writes with the dispassion of a legal scholar. This is not surprising as he was once a practicing lawyer and is currently a practicing philosopher with several Ph.Ds, including one in English literature.

Basing his consideration of the question on the work of John Locke, the father of classical liberalism (1632-1704), Blackford lays out the role of the state as being one of the protection of “worldly interests,” or as Thomas Jefferson might have said, “Each citizen’s life, liberty, and pursuit of happiness here and now in this material world.” He contrasts this with religions, which “offer rival paths to spiritual salvation” in a transcendent plane of existence.   The two roles, Locke says — and Blackford agrees — should not intersect. “Religious claims,” Blackford writes, “about a transcendent order may be true or false, and, in theory, some are even testable. In practice, however, disputes about religion defy resolution by reason.”  That is to say, since one person’s faith, through analysis, study, and reasoning, can never determine to be more or less true than any other person’s faith, then, “wherever it can, the state should step back from all this, neither promoting nor discouraging religion (or any particular form of it).”  Religion, by it’s very nature, is not a worldly interest, and therefore, should not be of interest to the state.

But even secular states with a tall, thick and strong wall separating them from religions can still do damage to the lives, liberty, and happiness of its citizen’s of faith, as Stalin’s Russia and modern China so ably demonstrates. Blackford believes that states should not derive power from religions, but also believes that they should have no undue power over religions and their practices, as long as such religions, by their practices, bring no harm to other citizens of the state. Therefore states should be restrained in their power by the “harm principle,” first described by John Stuart Mill (1806-1873), which Blackford explains, “…is essentially the idea that an individual’s liberty may rightly be abridged, through the exercise of social or political power, only in response to acts that cause certain kinds of harm to others.”  This applies to all individuals, of course, not just to the religious, but as a state’s relationship to religion is Blackford’s brief, he concentrates on matters of religious freedom.

Blackford gives a brief history of religious tolerance and persecution, noting that the ancient world was far better at tolerance than we moderns have been, the difference seeming to be the creation of monotheistic religions that gave no room for all the other gods tolerated when polytheism was the norm. “The Abrahamic religions — Judaism, Christianity, and Islam — rejected ancient paganism’s ‘easygoing approach.’ From the beginning the cult of Yahwea condemned the worship of any other gods.”  The monotheists went on from there not just to condemn but to deny “…their (other gods) very existence.”  Believing, as Islam declares, “that there is no god but God” tends to make one intolerant of being told otherwise, which led to centuries of violence and persecution leading up to, in Europe, the Wars of Religion and the Thirty Years War in the 16th and 17th centuries.  All of which caused thinkers such as Locke and Mill to look for another way of civic existence by separating the emotions and loyalties of otherworldly religions from the rational protection of worldly or secular interests.

That separation, or wall, was erected here in the United States by our Enlightenment inspired Founding Fathers, but not always to the complete satisfaction of our citizens, leading to a tension between those who don’t mind the state not having control over religions and their practices but think it’s proper for religion to have some control over the state and its laws; and those who wish for religions to have no control over the state and its laws, but think it’s proper for the state to have some control over religious practices.  Both sides seem to want the wall to have a gate, but want that gate to swing only one way — their way.

For example, in Martha C. Nussbaum’s Liberty of Conscience: In Defense of America’s Tradition of Religious Equality Blackford finds much support for his contention that “for much of human history governments have imposed religious conformity on citizens, marginalizing…different beliefs…,” and therefore a modern secular state, by contrast, should treat all beliefs equally while maintaining a separation from them and their practices. However he find’s Nussbaum’s deference to religions and their mandated behaviors that may conflict with secular realities to be too accommodating, the gate swinging only to the advantage of the religions. He takes the example of the wearing of burqas by Islamic women. It is assumed that Nussbaum would consider it an abridgment of religious freedom for the state to allow employers to ban it in the workplace. Blackford sees that the worldly consequences need to be weighed — what is the job and how does the wearing of a burqa affect the performance of the employee? — before a blanket allowing or abridgment of the behavior is decided upon.  If “good workplace performance…require face-to-face effective communication with clients…” then burqa wearing employees can harm the business of the employer, and it would be proper for the state to defend the employer’s rights here.  On the other hand, if all employers were allowed to ban the burqa from the workplace, then conservative Muslim women would become unemployable bringing harm to them, not to mention the society that could use their skills, therefore a blanket ban would be an overreach. Blackford, as opposed to Nussbaum, is neutral as to the value of religion, and believes that the state should be too, its criteria being only the worldly interests of all, not the otherworldly interests of some, allowing the gate to swing in the direction that causes the least harm to all.

As easy as it seems applying the Millian harm principle to such decisions should be, it’s not because the secular state, despite its neutral position in the otherworldly concerns of religion such as morality, adherence to “divinely” mandated behaviors, or other matters of conscience, can so easily be accused of “persecuting” religion when it is only, in fact, trying to protect the general welfare of its citizens.  This can best be illustrated by giving consideration to a recent state/church controversy here in the United States that happened after Blackford finished his book.

Earlier this year the Obama administration made the decision that religious-based institutions such as Catholic universities and colleges are required by the new health care reform law to include free contraceptives in health insurance coverage for their employees, many of whom are not Catholic. The Catholic Church responded by claiming that this ruling violated the separation of church and state, some Catholics and other Christians even calling it one more attack in an ongoing “war on religion.”

Despite these objections, the Obama administration maintained that if this part of the law was not complied with by all, harm could be brought to women, while, at the same time, complying with it did not bring substantial harm to the Catholic institutions, as the law does not require Catholics to use contraceptives, only that Catholic employers — like all employers — should  provide free contraceptives for their employees who have no conscientious objection to their use. Nonetheless, President Obama, sensitive to the feelings of the Catholic Church,  came up with a compromise that “puts the burden on insurance companies, ordering them to provide workers at religious-affiliated institutions with free family planning if they request it, without involving their employer at all.”

I believe Blackford, who feels that the state should show some discretion and accommodate the religious who are “…sincere and otherwise law-abiding people who would be adversely affected by demands of strict compliance” to a law that runs counter to their beliefs, but only, he suggests, to a limited degree, would applaud Obama’s compromise.

Freedom of Religion & the Secular State could not be more timely. If it becomes a standard text in colleges and universities, and, more generally, became a handy reference to those intimately concerned with questions regarding the separation of religion and state, then possibly, despite continuing heat over the subject, a little cool reflection could mediate the divide.

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Steven Paul Leiva, a novelist whose latest book is Traveling in Space from Blüroof Press, is a member of Atheist United. You can read more from Steven on his blog.

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