Comments on: Religious Freedom — or Oppression? http://law.marquette.edu/facultyblog/2008/11/11/religious-freedom-or-oppression/ Sat, 11 Feb 2012 21:08:33 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Jeff Myer http://law.marquette.edu/facultyblog/2008/11/11/religious-freedom-or-oppression/comment-page-1/#comment-1440 Jeff Myer Fri, 14 Nov 2008 14:28:34 +0000 http://law.marquette.edu/facultyblog/?p=1924#comment-1440 Professor Esenberg’s post, thought-provoking as usual, has too many double bank shots viewed through multiple mirror images for me to know which way is up. I don’t profess to have the cultural competence to understand nuances of the meaning of fatwah, jihad, or Sura 9.5. But I can rephrase the question into one from which I do feel culturally competent to unravel the thought provoking questions. Should the government take action (other than persuasion) against Catholic clergy who denigrate (choose your verb: excommunicate, refuse the Eucharist) an adherent of the faith (perhaps even a prominent candidate for elective office) for the adherent’s profoundly held belief that abortion is a matter of a woman’s choice? That is Professor Esenberg’s Free Exercise Clause question in the penultimate paragraph. And the Establishment Clause question is his final paragraph: Should the state be permitted to act to encourage forms of religion that are compatible with free and pluralist societies? And the First Amendment answers, our cultural tradition’s answers, are “No” and “No.” First, that members of a faith tradition will be reviled (again, choose your verb: branded an idolator/apostate, threatened with burning at the stake or Hell) by others of the same (or another) faith, does not, it seems to me, justify a sanction (as opposed to persuasion) for the behavior. [“Hate crime” enhancers, do, however, seem to me to be a different kettle of fish, because the govnernment is punishing principally the other criminal behavior; the difference in punishment, depending on the motive, seems to me different.] Second, religious toleration (in the Roger Williams tradition) seems to me the appropriate, and neutral, fostering of views of religion that is – by its very example – compatible with free and pluralist societies. The state does not encourage any form of religion, but by the very approach of toleration fosters freedom and pluralism. Those answers, I fell comfortable defending without obscuring them in a religious context I do not understand. So can the government respond, non-coercively by persuasion, and beyond protecting from threat of violence, to the vilification [pick your verb, again] of the religious minority by that faith tradition’s majoritarian view? Of course, and fostering freedom and pluralism (dare one say diversity?) is precisely the kind or moral endorsement in which the government can engage without offending the Free Exercise or Establishment Clauses. You can’t win if don’t suit up for the game. But need the government move coercively, beyond promotion of the value of diversity in preserving freedom, religous and otherwise? No. Dayenu. The fundamentalists, religous or political, will, of course, find the sponsorship of pluralism offensive, perhaps even labeling something perceived to advance the position of sectarian minorities as “reverse discrimination.” But it is the nature of the hottest sort of True Believer to be incapable of countenancing the apostate/heretic/diverse. And thus, to return (somewhat uncomfortably) to my rephrasing of Professor Esenberg’s questions in this context, can the government, without offending the Free Exercise or Establishment Clauses, say (persuade) that the Catholic clergyman’s denigration [pick your verb] of a fellow adherent offends the moral standards of freedom and pluralism? Yes. And I suppose the answer is the same wrapped in a double bank shot multiple mirror image of a religion I do not understand. Professor Esenberg’s post, thought-provoking as usual, has too many double bank shots viewed through multiple mirror images for me to know which way is up. I don’t profess to have the cultural competence to understand nuances of the meaning of fatwah, jihad, or Sura 9.5. But I can rephrase the
question into one from which I do feel culturally competent to unravel the thought provoking questions. Should the government take action (other than persuasion) against Catholic clergy who denigrate
(choose your verb: excommunicate, refuse the Eucharist) an adherent of the faith (perhaps even a prominent candidate for elective office) for the adherent’s profoundly held belief that abortion is a matter of a woman’s choice? That is Professor Esenberg’s Free Exercise Clause question in the penultimate paragraph. And the Establishment Clause question is his final paragraph: Should the state be permitted to act to encourage forms of religion that are compatible with free and pluralist societies?

And the First Amendment answers, our cultural tradition’s answers, are “No” and “No.” First, that members of a faith tradition will be reviled (again, choose your verb: branded an idolator/apostate, threatened with burning at the stake or Hell) by others of the same (or another) faith, does not, it seems
to me, justify a sanction (as opposed to persuasion) for the behavior. [“Hate crime” enhancers, do, however, seem to me to be a different kettle of fish, because the govnernment is punishing principally the other criminal behavior; the difference in punishment, depending on the motive, seems to me different.] Second, religious toleration (in the Roger Williams tradition) seems to me the appropriate, and neutral, fostering of views of religion that is – by its very example – compatible with free and pluralist societies. The state does not encourage any form of religion, but by the very approach of
toleration fosters freedom and pluralism. Those answers, I fell comfortable defending without obscuring them in a religious context I do not understand.

So can the government respond, non-coercively by persuasion, and beyond protecting from threat of violence, to the vilification [pick your verb, again] of the religious minority by that faith tradition’s majoritarian view? Of course, and fostering freedom and pluralism (dare one say diversity?) is precisely the kind or moral endorsement in which the government can engage without offending the Free Exercise or Establishment Clauses. You can’t win if don’t suit up for the game. But need the government move coercively, beyond promotion of the value of diversity in preserving freedom, religous and otherwise? No. Dayenu.

The fundamentalists, religous or political, will, of course, find the sponsorship of pluralism offensive, perhaps even labeling something perceived to advance the position of sectarian minorities as “reverse discrimination.” But it is the nature of the hottest sort of True Believer to be incapable of countenancing the apostate/heretic/diverse. And thus, to return (somewhat uncomfortably) to my rephrasing of Professor Esenberg’s questions in this context, can the government, without offending the Free Exercise or Establishment Clauses, say (persuade) that the Catholic clergyman’s denigration [pick your verb] of a fellow adherent offends the moral standards of freedom and pluralism? Yes. And I suppose the answer is the same wrapped in a double bank shot multiple mirror image of a religion I do not understand.

]]> By: Sean Samis http://law.marquette.edu/facultyblog/2008/11/11/religious-freedom-or-oppression/comment-page-1/#comment-1369 Sean Samis Wed, 12 Nov 2008 15:46:23 +0000 http://law.marquette.edu/facultyblog/?p=1924#comment-1369 As much as we all want to see religious hatred and violence end, any government action to penalize religious threats in particular will likely backfire. The violent bigots will claim government interference and oppression, which would raise their stature, not diminish it. Beyond existing rules regarding the incitement to imminent and likely violence or lawlessness, the government should not interfere lest it turn an extremist into an extremist martyr. Much attention is paid to Muslim practices, the issuance of fatwahs and the like, but some fringe Christian leaders are scarcely less violent, especially regarding homosexuality, abortion, and same-sex marriage. These issues are already divisive; encouraging the Government to choose sides on the basis of favored or disfavored religious expression is doomed to exacerbate the problem. A final thought: who decides whether Islam needs reform or lacks “genuine freedom of conscience”? Isn’t that a question for Muslims to decide? I am sure there are Muslims who thinks Islam needs these things, and others who think it does not. Should the government intrude? I suspect there are Muslims who think Christianity could use a little reform and lacks genuine freedom of conscience, too. I know Christians are divided on the question. Where do we go with that ... ? As much as we all want to see religious hatred and violence end, any government action to penalize religious threats in particular will likely backfire. The violent bigots will claim government interference and oppression, which would raise their stature, not diminish it.

Beyond existing rules regarding the incitement to imminent and likely violence or lawlessness, the government should not interfere lest it turn an extremist into an extremist martyr.

Much attention is paid to Muslim practices, the issuance of fatwahs and the like, but some fringe Christian leaders are scarcely less violent, especially regarding homosexuality, abortion, and same-sex marriage. These issues are already divisive; encouraging the Government to choose sides on the basis of favored or disfavored religious expression is doomed to exacerbate the problem.

A final thought: who decides whether Islam needs reform or lacks “genuine freedom of conscience”? Isn’t that a question for Muslims to decide? I am sure there are Muslims who thinks Islam needs these things, and others who think it does not. Should the government intrude?

I suspect there are Muslims who think Christianity could use a little reform and lacks genuine freedom of conscience, too. I know Christians are divided on the question. Where do we go with that … ?

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