The right to freedom of religion

Ch.1, §2: ‘Undeserved Respect’ (pp.41–50).

Dawkins mentions a U.S. legal case, in which a 12-year-old boy’s parents sued his school for refused to allow him to wear a T-shirt bearing the words ‘Homosexuality is a sin, Islam is a lie, abortion is murder. Some issues are just black and white!’ (p.45). They won their case on the grounds that the T-shirt ban infringed their constitutional right to freedom of religion.

Dawkins comments:

[I]f such people took their stand on the right to free speech, one might reluctantly sympathize. But that isn’t what it is about. ‘The right to poke your nose into other people’s private lives.’ The legal case in favour of discrimination against homosexuals is being mounted as a counter-suit against religious discrimination! … You can’t get away with saying, ‘If you try to stop me from insulting homosexuals it violates my freedom of prejudice.’ But you can get away with saying, ‘It violates my freedom of religion.’ What, when you think about it, is the difference? (p.46)

That’s an interesting question. Can we distinguish a right to free speech (i.e., in part a right to form, hold and express opinions, to develop and express ideas), from a right to practice religion (i.e., in part a right to form and maintain a certain kind of polity – a certain kind of community)?

There are difficult questions here for a liberal society. On the freedom of speech side, the ‘right to poke your nose into other people’s private lives’ might be a combination of a right to form opinions about the morality of differing sexual behaviours, the right to express those opinions publicly, the right to campaign for the wider public acceptance of those opinions, the right to campaign for the political adoption and enforcement of those opinions, and even the right not to believe in the same public/private split that Dawkins refers to. All that might be something that a liberal society might (reluctantly, as Dawkins says) allow on the grounds of freedom of speech – though it will need to balance that with vigilance against (at least) incitement to violence, and there will be all sorts of interesting situations where this right might need to be curtailed.

But what about the right to form a community, a polity, that embodies those opinions? Is there a right for, say, conservative Christians who agree together that homosexuality is a sin to band together not simply as a collection of people exercising their common right to free speech, but as a community that shapes its common life accordingly? A community where that message is taught, where the claim that homosexuality is a sin is embodied in practices of confession and absolution, where children are brought up in that belief, and so on? What then?

I do not at all think it easy to answer these questions. That is, I think it fairly important that we should uphold some such right (however reluctantly, in particular cases); I also think that just as the right to freedom of speech is appropriately modified by a ban on incitement to violence, so there will appropriately be all sorts of caveats surrounding any right to form and participate in identity-forming polities.

Nevertheless, I think that such a right is not quite reducible to freedom of speech, nor even freedom of speech plus freedom of association. ‘Freedom of religion’ has to do with the right to participate in identity-forming polities – to become defined as a member of such a polity, and to go freely through the wider world identified as a member of such a polity.

Having said that, however, I can’t quite see how such a right extends to allowing the wearing of offensive T-shirts in school.

The only information I can find on the T-shirt case suggests that it was in the end fought on freedom of speech grounds. See here and here (some way down the page).

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