Freedom of Religion: In Search of a Constitutional Principle

• Author: Simeon C. R. McIntosh
• Pages: 163-210

Freedom of Religion: In Search of a Constitutional Principle

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Religious liberty is a moral ideal, an important part of our understanding

of political justice, in a religiously pluralistic society.1 It is indeed the

case that religious liberty (or toleration) holds a special primacy in

Western constitutional thought and interpretive practices.2 It is said

that American founding fathers, such as Jefferson and Madison, saw

religion as a matter of conscience, to which the state must pay scrupulous

regard. That is to say, they saw the underlying right to conscience as

central to the justice of republican government and to the rights such

government must protect.3

The right to freedom of religion is now generally understood to be

constitutive of an ideal conception of human personhood, hence its

numbering among the inalienable rights of the person. It is considered

to be, along with freedom of conscience, thought and expression, one

of our most basic human rights. Reflection on the centrality of religious

belief and practice to human life would bear witness to the truth of

these claims.

In his very important work on Hegel’s phenomenology, Terry

Pinkard of Georgetown University suggests that religion has to do

with that category of interests that people take to be the definitive

grounds for belief and action, in short, for living the lives they do.4

This is so because religion is said to concern matters of ultimate truth.

In Hegelian terms, religion is conceived of as ‘a form of absolute spirit’

of the human community reflecting on the ultimate ends of life. In

FREEDOM OF RELIGION:

IN SEARCH OF A CONSTITUTIONAL

PRINCIPLE

Chapter 3

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FUNDAMENTAL RIGHTS AND DEMOCRATIC GOVERNANCE

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other words, the practice of religion is considered a form of communal

reflection on the absolute principles governing (or which ought to

govern) human life; that is, on what is divine and sacred; on what

constitutes the point of life.5

From the foregoing it is discerned that religion is at once both

distinctively communal and profoundly individualistic. It is deeply

personal spirituality that emphasizes theology, faith, private conscience,

and personal autonomy.6 On the other hand, religion is conceived of

as a set of practices, institutions, symbols, and identities that creates

and sustains a sense of belonging to a community.7 It is therefore at

once private and communal. It binds the individual in conscience;

however, one’s religious beliefs are often given expression in the

ceremonial and other practices that provide a sense of coherence and

identity for a community of believers.8 It is ‘authoritative reflection’

on what is (or ought to be) of ultimate and inherent value for the

community of believers; that is to say, it would count in that community

as the determining ground for whatever else that community considers

to be definitive, whatever else the community considers to be basic to

its beliefs and practices.9 As Pinkard puts it, ‘a modern religious

community’ is a community that is oriented to reconciling its members

with each other by reflecting on what it is that binds them together, in

conscience, but which does not at the same time deny their modern

sense of individuality.10 For Hegel, the reconciled community is held

together by a definite and shared sense of what is sacred, of what is of

ultimate and inherent value for it as a community.11 Put differently,

religion becomes the institutional communal practice of such reflection

and affirmation of what we have, as a historical community, come to

take as sacred; a form of institutionalized social practice in which a

community reflects on what it takes to be the ‘ground’ of everything

else that is basic to its beliefs and practices; on the defining purpose

or point of human life.12 One of the defining characteristics of religion

is that it provides comprehensive systems of meaning that address the

ultimate questions of human life.13 This is what, according to Bette

Freedom of Religion: In Search of a Constitutional Principle

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Novit Evans, best distinguishes religion from other sources or kinds of

meaning: ‘it offers comprehensive answers to “ultimate questions.”’14

It is ‘the primary form of culture in terms of which the comprehensive

question is asked and answered.’15 In view of this, it is conceivable that

religion could play a formative role in the kind of political community

a people might eventually construct for themselves.

But the comprehensiveness of religious beliefs might also be the

likely source of immense civil/religious conflicts. It could easily be

one of the most divisive issues in a modern pluralistic society. As

Professor Scott Gordon observes, ‘of all human beliefs, religious

doctrine is the least amenable to compromise, for rejection of

theological truth is not merely an error in reasoning; it is heresy, an

offence against God.’16 And as John Rawls conceives it, the modern

democratic society is composed of a plurality of persons (and groups),

each with his or her own aims and interests, and conceptions of the

good, and their own conceptions of the value and purpose of human

life. As such, the political culture of a democratic society is inevitably

marked by a diversity of opposing and irreconcilable religious,

philosophical and moral doctrines.17

One of the most fundamental issues with which the modern

democratic society must be concerned is that of toleration. It is a

question of the moral and political design of the modern democratic

state so that its citizens, regarded as free and equal, may live in relative

peace and harmony and as fully cooperating members of society over

a complete life, from one generation to the next.18 How, in other words,

might it be possible that there may exist over time a stable and just

society of free and equal citizens profoundly divided on the most

fundamental questions about religious, philosophical and moral

beliefs?19 How is such a society even possible when there are multiple

and contending faiths? How might the absolute powers of sovereignty

be limited by appropriate principles of constitutional design in order

to protect basic rights and liberties, such as freedom of religion?20