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Witte Discusses Religion, State, Human Rights

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John Witte, Jr.

By Thomas F. Farr
03/08/11

Thomas F. Farr, visiting professor at the Edmund A. Walsh School of Foreign Service, Georgetown University and Director, Religious Freedom Project, Berkley Center for Religion, Peace & World Affairs, recently interviewed John Witte, Jr. on the issues of law, religion, and human rights. Witte, CSLR Director, Jonas Robitscher Professor of Law and Alonzo L. McDonald Family Foundation Distinguished Professor, is serving as a distinguished visiting scholar at the Library of Congress' John W. Kluge Center during the spring semester 2011.

Q: What is the proper role of religious ideas and actors in the political life of the nation? May religious individuals or religious communities make explicitly religious arguments, or religiously informed moral arguments, for laws and policies? For example, may Christians and Jews legitimately make Scriptural arguments, or Muslims arguments from the Koran or hadith, for or against particular foreign policies or economic policies, for or against gay marriage, or for or against embryonic stem cell research? If so, why and what limits, if any, should obtain? If not, why not? 

A: Many of us grew up with the school boy belief that strict separation of church and state was a mandate of the First Amendment establishment clause, and that religion was hermetically and hermeneutically sealed from political discourse and public life.  This separationist teaching -- while once a staple of some Supreme Court cases and still a mantra of some elite academic opinion -- is no longer the law of the land.  All religious voices, visions, and values are now welcome to be heard and deliberated in the public square and political process.  All peaceable public religious services and activities must be given a chance to come forth and compete.

Today, the so-called “Christian right” has seized on this insight better than most.  Its recent rise to prominence in the public square and in the political process should not be met with glib talk of censorship or reflexive incantation of Jefferson's mythical wall of separation.  The rise of the Christian right should be met with the equally strong rise of the Christian left, of the Christian middle, and of sundry Jewish, Muslim, Hindu, Buddhist, and other groups who test and contest its premises, policies, and prescriptions.  That is how a healthy democracy works.  The real challenge of the Christian right is not to the integrity of American politics but to the apathy of American religions.  It is a challenge for peoples of all faiths, of no faith, and of anti-faith to take their place at the table of public deliberation

Unlike a generation ago, no one seated at this table of public deliberation today needs to hide their Bibles, Qur’ans, or prayer books.  No one needs to remove their yarmulkes, headscarves, or crucifixes.  No one needs to cover their deep convictions under a patina of purported neutrality.  We’re slowly overcoming our allergy to public expression of religion.  We’re slowly coming to realize that every serious position on the fundamentals of public and private life – warfare, marriage reform, bioethics, environmental causes, and more -- rests on a set of founding metaphors and starting beliefs that have comparable faith-like qualities. Today, easy claims of neutrality and objectivity in public argument face very strong epistemological headwinds.

But welcoming serious public deliberation by people of faith imposes its own strong demands.  It demands that these faith communities develop a clear conceptual bilingualism: the development of a public language that casts deeply held convictions into terms that others, with different faith assumptions and experiences, can understand and accept, even for their own reasons. It demands deep and sincere empathy: learning to appreciate the deep convictions and cardinal practices of the other, even if only by distant analogy; that is the heart of the Golden Rule.  It demands long and respectful patience: spending the time to listen and to deliberate to every serious position before rushing to cultural, constitutional, or political judgment.  And it demands unswerving commitment of all parties to the first premises of American democracy: that there be religious freedom for all and religious establishment for none.

Q: Does the American system encompass a right of faith-affiliated organizations to hire only their co-religionists? Should conscientious religious objections to providing contraceptives or performing abortions be accommodated in law and policy, such as the health care law passed by Congress last year? If so, why? If not, why not?

A: I distinguish between “first order” conflicts that involve an individual’s core claims of conscience or a religious community’s central commandments of the faith and “second order” conflicts that involve more discretionary religious activities or more attenuated religious logic.  “First order” conflicts require accommodation as a matter of religious freedom so much as possible; “second order” conflicts often times get resolved in favor the competing right, especially if it’s a competing fundamental right.  I think those religious accommodations should be granted by the First Amendment free exercise clause, but can live with the reality that many of them today are granted by Congressional statutes.

“First order” conflicts of conscience for individuals include requiring a minister to marry a gay couple, a medical doctor to perform an elective abortion, or a pharmacist to deliver contraceptives against their sincere and central beliefs.  So long as the couple, patient, or client can reasonably get that service from someone else, the minister, doctor, or pharmacist should have their conscientious objection respected.  But a minister can’t refuse to marry a couple because they’re not of the same color, a doctor can’t refuse to attend to a patient because he’s of a different religion, or a pharmacist cannot refuse to fill an allergen because he does not think women should use drugs – and expect to have that justified on freedom of conscience grounds.  That’s just bald racial, religious, and gender discrimination.

“First order” conflicts for religious employers include their right to set the religious qualities and qualifications of their core religious employees.  No church needs to hire a rabbi to lead the Eucharist; no synagogue needs to hire an imam to read the Torah in Saturday worship.  Those “first order” conflicts are relatively easy to resolve.  Congress said as much in its amendments to the Civil Rights Act and the Supreme Court has said the same in its one case on point: Amos v. Presiding Bishop (1987). International human rights norms protect this same right with the doctrine of “religious autonomy.”

It’s become harder to justify this right, however:

1) when religious discrimination extends to the support staff of a religious organization (say a janitor) or to independent contractors (the weekly lawn service, the twice-a-year paper supplier for the Sunday bulletin).  Insisting on a religious identity and practice for full-time members who are part of a regular part of the community of common faith is justifiable.  Not so with occasional vendors and service providers.  I view these as “second order conflicts.”

2) when religious discrimination becomes a pretext for other types of discrimination – based on gender, race, culture, or sexual preference.  In those cases, the burden is on the religious organization to demonstrate its bona fides.  In cases like a male-only or a straight-only religious office, that burden can sometimes be met.  In cases like bald discrimination on grounds of race, culture, economic status, and the like, that burden is very hard to meet and sometimes can come at the cost of, say tax exemption (as we saw in Bob Jones University v. IRS (1983).

3) when a religious organization is spending the taxpayers’ money, say, in a faith-based initiative program.  There, the religious group can still insist on hiring its own co-religionists for core activities, but it must deliver its services to any and all who are entitled to the tax-supported service.  Religious objections of the group that say only members of our church, or only those who participate in our religious services can receive our charitable services, cannot trump the free exercise and other rights of all eligible consumers of that tax-paid charity.  The religious group’s choice is to take the tax money and play by the same rules as everyone else, or forgo the money and deliver their services on their own terms.

Q: On balance, is the dominant American approach to religion, society, and the state—freedom of belief and the freedom to engage society and politics on the basis of that belief—worthy of emulation in other countries? What are the implications for US foreign policy around issues of international religious freedom and proselytism?

A: While the American approach -- of granting religious freedom to all and religious establishment to none -- has problems at the edges, especially for religious minorities in every generation, it has proved to be a remarkably resilient and successful experiment.  And this American experiment has provided one important example of how to implement and institutionalize the universal right to religious freedom and related freedoms.

It’s very dangerous, however, to export constitutional norms of one country and expect them to work in another.  Constitutions grow out of the soul and soil of a people, and are deeply shaped by each people’s distinct history, experience, and cultural values.  American-style religious freedom is hard to apply in places that have not been shaped by the same tradition of protest against religious establishment and royalist oppression, by a federalist system of government and a wide open frontier that provided a place for religious experimentation and diversification, or by three centuries of immigration that has allowed for gradual (and sometimes painful) expansion of the ambit of religious freedom to religious newcomers. Both the robust freedom of religion and religious expression, and the non-establishment of religion values of American constitutional law don’t sit easily in many parts of the world, even in Western Europe with its lingering Catholic, Protestant, Anglican establishments and its deep-seated concerns for hate speech as a step on the slope to xenophobia.

What is easier to export – and easier to use as a measure of diplomacy – are the basic religious freedom norms for individuals and groups  that are captured in the international bill of rights: the Universal Declaration of Human Rights Article 18; the International Covenant on Civil and Political Rights, Articles 18 and 26; the 1981 UN Declaration of Religious Tolerance;, the 1989 Vienna Concluding Document on religious groups; the 1992 Declaration on religious, cultural, and linguistic self-determination. Those and other instruments, widely accepted in the world community, provide a better standard for diplomatic relations with others, as well as self-reflection on our own constitutional experiment. 

But even that said, it can be very dangerous to import wholesale human rights norms into a community without adequate preparation of a human rights culture.  We saw that in post-glasnost Russia, where Western style human rights was simply too toxic for a country just coming out of 75 years of Communist oppression.  Eventually, after a decade of massive corruption and cultural confusion, Russia began to retreat, and has now returned to some of its belligerent policies of the past.  The same thing might well happen in many of the Middle Eastern countries now flush with revolutionary democratic fervor.  Democracy and human rights are wonderful gifts to humanity, but they must be imbibed and implemented carefully, deliberately, with constitutional caution and a willingness to adjust, amend, rethink, redo as the culture adjusts to the constitution and vice-versa.

The American model of religion, society, and politics is based on the first amendment to the Constitution -- "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Both the free-exercise and non-establishment clauses have been sharply contested in domestic politics and have implications for the U.S. as a model of religion/society/state relations abroad.

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