Freedom of Religion: In Search of a Constitutional Principle

AuthorSimeon C. R. McIntosh
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
Chapter 3
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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
~ 165 ~
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

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