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Thursday, 17 September 2015

Freedom OF or Freedom FROM Religion?

In any given society, beliefs may be based on values very different from, and even contrary to, those governing public activities, e.g. discrimination based on gender and sexuality, attitudes to abortion and religious instruction in schools. Therein lies the basis of some the most divisive aspects of our society. It is thus not surprising that history is full of stories of intolerance between those with different worldviews. Acceptance of the adoption and practice of diverse beliefs equally and for everyone, whether religious or non-religious, has been one of the oldest sources of controversy in the annals of society, and a longstanding source of conflict, repression and inequality.
Article 18 of the Universal Declaration of Human Rights (‘UDHR”) establishes the right for all individuals to adopt personal convictions about how life should be lived, and to observe and teach (‘manifest’) the requirements of that belief within the parameters of democratic society. Its language is vague, but examination of the voluminous literature, including official statements by the UN, courts and academic statements, shows that’s the promise it is held to make.
Article 18.1 provides:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

However, the exercise of human rights may be limited by the state to respect the rights and freedoms of others, for public order and general welfare to be found in a democratic society. 
Article 29 UDHR says:
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

The UDHR has been adopted by the 195 member states of the United Nations (UN): every government in the world except Kosovo, Taiwan and the Vatican. The promise of Article 18 (with the Article 29 caveat) is repeated in many international treaties, indeed the world is awash with similar provisions in conventions, declarations, policy statements and constitutions. One hundred and seventy-five nations (including, e.g. Syria, Afghanistan, Pakistan, Iran, Iraq, and most of the African nations) have also signed the International Covenant on Civil and Political Rights (‘ICCPR’), which contains the above two principles in its Article 18, allowing individuals to apply to the UN Human Rights Committee for a ruling on alleged breaches of these rights by their government. The European Convention for the Protection of Human Rights and Fundamental Freedoms  also contains these provisions in its Article 9, and sets up the European Court of Human Rights to make binding rulings on violations. Other regional international bodies state in similar terms the right to have, adopt and practice a belief.
Article 18 refers to each individual’s personal value system, with its principles that govern their behaviour in everyday life. These form part of their worldview – their ‘religion or beliefs’ – arising from an explanation of nature, the reason for existence and their relationship to the natural, social and political environment. Personal religion or beliefs, apply to all of life, and thus can be distinguished from, e.g., a political value system, based on established specific principles and values adopted by (or imposed on) a society, e.g. democracy, dictatorship or theocracy. A political value system is one that those within a given society generally agree to, regardless of religion or belief.
Article 18 principles grant freedom to have and practice personal worldviews in our private, everyday social activities (religious or otherwise), such as mutually accepted principles of behaviour within one’s family, social or religious group. But these freedoms may be constrained by government when they impinge on the rights and freedoms of others and in the interest of good governance, applying the democratic principles of human rights and the rule of law.
Nevertheless, Governments throughout the world, (including the US, with its pioneering First Amendment non-establishment clause) through their entanglement with religious concerns, have overwhelmingly failed to fulfil the promise of Article 18, whether with the best of intentions or not.
Attempting to understand this failure despite widespread nominal recognition of Article 18, I have examined the wording of Article 18 itself, the response of governments to Article 18 and its interpretation and oversight by the UN and the European court of Human Rights. Here are several of my conclusions:
Governments are not prepared to implement Article 18
Some nations reject Article 18 outright. They are theocracies such as Iran and the Arab Emirates, where the state is subject to Islamic law. In addition, over 50 nations (the Organisation of Islamic Cooperation) have signed the Cairo Declaration of Human Rights in Islam, despite their nominal recognition of the UDHR. Under the Cairo Declaration all human rights are ‘subject to the Islamic Shari’ah’, which is to be the ‘only source of reference for the explanation or clarifications of any of the articles’ (see Articles 24 and 25). Governments also press for the adoption of resolutions by the UN favourable to their state-endorsed religious beliefs.
Compromise within the UN contributes to the failure of the Article 18 promise in other ways. In 2014, for example, a comprehensive study regarding freedom of thought in UN member states found that of the 47 member states of the UN Human Rights Council, almost half (21) have what it classifies as ‘severe’ or ‘grave’ constraints on freedom of religion or belief, such as obstructing the advocacy of democracy, freedom or human rights, or outlawing apostasy, ‘blasphemy’ or criticism of religion. Indeed, four of those states punish apostasy or ‘blasphemy’ with death (Maldives, Morocco, Saudi Arabia and UAE).[1] This is at odds with the Council’s responsibility, to uphold ‘the highest standards in the promotion and protection of human rights’.
At the other end of the spectrum are states that have constitutional provision for at least some degree of separation of government from religion. However, these states vary in the degree of actual separation that occurs, the two most prominently (but not completely) separationist being the US and France, with their prior non-establishment decrees. Other nations fit into various positions along the spectrum. They have all signed the UDHR and are all accepted as members of the UN. There is copious evidence that both state and federal governments in the US, for example, accommodate religion. Prayers are incorporated within government proceedings and said at sports meetings and school events. Religious icons are displayed in public. Religious institutions enjoy tax benefits and financial privileges and legislative provisions enact religious dictates. The Supreme Court also appears to be resiling from its former separationist stance to adopt more accommodationist rulings. Fn Jeremy Fox, in his comprehensive survey of religion and state concludes that ‘[n]o matter how one views the larger picture, some aspect of religion remains a significant influence on at least some aspects of society and politics’.[2] This is a significant barrier to the realisation of the Article 18 promise. In other words, people are not free from government-endorsed, religious influence.
Article 18 is used to privilege religion over ‘non-belief’.
By its prevalence of religion-related language, Article 18 is used as a manifesto about religion despite the fact that it applies to everyone: ‘atheists, agnostics and the unconcerned’ as well as the religious.[3] As a result, religious individuals and groups have come to see themselves as entitled to privileged treatment from government. The ‘everyone’ (equality) aspect is disregarded, causing discrimination against minority religious groups and ‘non-believers’ alike. Article 18 has used by individual churches and self-appointed spiritual guides (including leaders of cultic groups) as a pretext for demanding and enhancing political, economic and social benefits in the name of ‘freedom of religion’. In some countries authorities may help to preserve and protect harmful traditional practices, for example, in covering up or condoning crimes carried out in the name of ‘honour’, or the abuse of women and children. Governments may fear retribution for unwelcome ‘interference’ in custom or culture.
So, everyone is in favour of ‘freedom of belief’, but on their own terms. As a result of favourable treatment by government, religious institutions throughout the world are very wealthy – to the tune of billions of dollars in many countries. This amounts to what Max Wallace, calls ‘soft theocracy’: ‘a state where church and government purposes coincide to garnishee taxpayers’ money and resources, structurally through tax exemptions and functionally through grants and privileges’.[4] ‘Soft-theocracy’ has been countenanced by the UN and European Court, as separation is not part of their language in interpreting Article 18.  So long as religion is not repressed, it can be favoured. Compromise, the soul of diplomacy, allows tolerance of state-religious entanglement. Thus, sectarian interests have largely overcome attempts at government impartiality towards belief.

Article 18 needs rethinking

I conclude, then, that we need to rethink Article 18 and what it means if we are to realise its promise. The intention of Article 18 is not to privilege anyone’s religion or beliefs, but to ensure that governments protect religious and other belief practices through impartial policies and legislation, leaving them alone to flourish according to accepted democratic governance. Freedom from ‘religion or belief’, it is argued, is the real promise of Article 18 – that is, freedom from suppression or imposition of religious or non-religious doctrines by the state or anyone else.
We do need belief rights, but in other terms. Freedom to adopt and practise a system of personal ethical doctrines should be recognised, but freedom of ideas, expression, association and assembly are already provided for in the relevant international documents. The addition of Article 18 adds a consequent widespread expectation and pressure for unmitigated freedom to follow religious or cultural practices, with associated immunity from the general law and access to government resources and policy. Far from guaranteeing the unbridled liberty to follow the dictates of one’s belief, Article 18 is intended to establish the political practicalities surrounding the exercise of personal worldviews.
This means a government strictly impartial to personal belief systems. Firstly, the coercive power of the state is to be justified on the grounds of compliance with the public political conception of justice based on democratic principles. Secondly, as statements setting out the terms on which a society is to be governed – that are meant to have the force of law or direct behaviour – should be adequately precise, to ensure clarity, certainty and fairness. Article 18 is best considered a statement of general principle only, with governments establishing the liberties and limitations it involves in more defined terms in constitutional legislation that can be overseen by the highest level courts.
Given the time-honored right of religious bodies to be active participants in the American political process, it is not surprising that the US Supreme Court has not seriously challenged this … right.[6]
As Article 18, in setting out belief rights, in effect establishes obligations on third parties, these obligations need to be spelt out for them to be realised. It is instructive that the tiny republic of Fiji, in instituting a new democratic regime, has done just this – something that other democracies have failed to do over centuries. Recently, a new Fiji Constitution was promulgated, which includes a Bill of Rights, incorporating, at Article 22, the ‘right to freedom of religion, conscience and belief’, with limitations similar to those in Article 18. But it then goes further. It puts the focus squarely on the aim of Article 18: freedom from the suppression and unwanted influence of religion.
Section 4 provides:
4.  (1) Religious liberty, as recognised in the Bill of Rights, is a founding principle of the State.
(2) Religious belief is personal.
(3) Religion and the State are separate, which means––
(a)   the State and all persons holding a public office must treat all religions equally;
(b)   the State and all persons holding a public office must not dictate any religious belief;
(c)   the State and all persons holding a public office must not prefer or advance, by any means, any particular religion, religious denomination, religious belief, or religious practice over another, or over any non-religious belief; and
(d)   no person shall assert any religious belief as a legal reason to disregard this Constitution or any other law.
In this way citizens are more likely to ensure that the promise of Article 18.

[1]                      Freedom of Thought 2014, International Humanist and Ethical Union (IHEU). Available at <freethoughtreport.com>.
[2]              Jonathon Fox, (2008) A World Survey of Religion and the State Cambridge, Cambridge University Press, p. 364.
[3]               Kokkinakis v. Greece, 25 May 1993, European Court of Human Rights, Series A no. 260-A, para 31.
[4]              Max Wallace, (2007) The Purple Economy: Supernatural Charities, Tax and the State Melbourne, Australian National Secular Association, p. 72.
[5]              See, for Example, Erwin Chemerinsky, Legal Titan Chemerinskychampions First Amendment, Freethought Today April 2015, p. 12
[6]              Davis, Derek (2001) ‘Separation, Integration and Accommodation: Religion and State in America in a Nutshell’ 43 Journal of Church and State 5, 9.

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