Neutrality and “Religious Freedom for the Good of All”

Jeremy Patrick is a Lecturer for the University of Southern Queensland School of Law and Justice

There are many laudable statements in “Religious Freedom for the Good of All.”  The document acknowledges the Church must exist in a pluralistic and multicultural society (para. 10), that individual freedom is the birthright of every human being (para. 37), that coercion is not a legitimate means of religious conversion (para. 41), that the existence of “intermediary bodies” (including religious associations) between the individual and the state is crucial for a well-functioning society (para. 52), and that the free exercise of religion should be limited only when the rights of others or the necessities of public order are infringed (para. 79).  These may not be new positions for the Catholic Church since 1965, but they certainly represent real progress in the Church’s understanding of religious freedom across its long (and in the document, carefully-elided) history (see, e.g., para. 27).

The irony is that they are all also quintessential elements of the self-professedly “neutral” secular liberal democratic state that is repeatedly castigated throughout the document. According to the document, the liberal state is (somehow) simultaneously indifferent to religion (and thus responsible for the rise of “religious radicalization”) but also actively hostile to religion (and thus responsible for a “soft totalitarianism”) (para. 4). The heart of the problem, we’re told repeatedly, is the false idol of state neutrality towards religion (para. 5, 62-65, and 86).

The alleged neutrality of a political culture which declares that it wants to build on the formation of purely procedural rules of justice, by removing all ethical justification and all religious inspiration, shows the tendency to develop an ideology of neutrality which, in fact, imposes the marginalization, if not exclusion, of religious expression from the public sphere and with that the full freedom to participate in the formation of democratic citizenship.  From here arises the discovery of the ambiguity of the public sphere’s claims to neutrality and of an objectively discriminatory civic freedom.  . . .  The reaction to the human weakness of the system appears to justify for many (especially the young) the path to a hopeless fanaticism (para. 5).

Similarly, the document expresses concern over the liberal state’s “desire for a perfectly neutral value system (bordering on agnosticism) regarding the place of religion. This obsession inevitably leads to institutional legality that fails to value the entire symbolic university of civil society, a reality that is uniquely human.” (para. 45). And thus, we’re told, when Christians buy into this allegedly deceptive notion of state neutrality, they deceive themselves into accepting a “bifurcation of their being into an exterior governed by the State and an interiority governed by the Church”, thereby essentially renouncing their freedom of religion (para. 65).

Critiques of the liberal state’s attitude toward religion have been replete in law and religion scholarship over the past few decades. The contradictions within this literature are fascinating. Sometimes secularization is treated as a myth, and therefore neutrality is unwarranted because “we” (in whatever country) are still a “religious people” that need to recognize our “heritage” through formal government endorsement of religion. Other times, secularization is treated as very real and very sudden, leading to Christians becoming (almost overnight) a vulnerable minority in dire need of judicial protection of their freedom of religion. Sometimes, state “neutrality” is deemed real, and thus problematic because it puts the ends that the public hopes to achieve up for grabs and fails to reflect Christian notions of the public good. Other times, state “neutrality” is deemed false, perhaps because of abstract theoretical arguments, or more likely because whatever ends the public has chosen in relation to a particular issue aren’t the ends a particular church has endorsed in debates over that issue. Almost universally, there are complaints that religion has been excluded from the “public square”—despite the utter absence of censorship, heresy, blasphemous libel, seditious libel, or other laws so common in illiberal states (and used to impose fear in their religious communities).

Of course, there are occasional violations of freedom of religion in Western countries. But isolated anecdotes circulated widely have somehow led to a widespread perception of persecution, despite the vast majority of religious citizens remaining perfectly free (legally-speaking) to worship what deity they would like, when they would like, how they would like, and with whom they would like. I suspect more has been written about the alleged plight of Christians in “neutral” modern liberal democracies than has been written about the very real infringements of religious freedom faced in truly atheistic regimes like China or North Korea.

A recurring theme in “Religious Freedom for the Good of All” and much law and religion scholarship is the equation of state indifference towards religion with hostility towards religion. But these concepts are not identical, and we should welcome the former while rightly condemning the latter. State indifference toward religion is positively beneficial to religious freedom: indifferent states don’t require religions to register with the government before operating in a country, don’t require individuals to choose from amongst a formal list of registered religions before getting married or moving into a particular neighborhood or sending kids to a particular school, don’t allow law enforcement or customs officials to know a person’s religion and interrogate them about it just by looking at their government-issued ID cards, and, most importantly, indifferent states really don’t care that this religion is undergoing a schism, that reformer has just committed heresy, and these evangelists are quickly converting the locals. Because the demands of equal citizenship prohibit a state from endorsing one religion over others and religion over non-religion, indifference is realistically the best we can hope to expect—and it’s something that is definitely preferable to active hostility.

“Religious Freedom for the Good of All” should be appreciated for its full-throated and persuasive renunciation of theocracy (para. 15). But it still makes the mistake of confusing the indifference of the neutral state with the hostility of the atheist state by repeating tired tropes implying there’s no distinction. But we have to be able to recognize the occasional missteps of the liberal state (such as parts of Europe banning the burqa or the Australian state of New South Wales’ prohibiting sikh students from wearing kirpans) and remedy them while, simultaneously, understanding the much greater risks of sliding toward either of the extremes on the spectrum. State neutrality is an ideal that best allows every individual’s conception of the true good to flourish—whether that true good is revealed religion or something entirely different.

In closing, it is worth remembering that the ideal of state neutrality toward religion did not spring forth yesterday from latte-sipping liberals in a trendy Los Angeles café. The concept that the government should not have a religion, and should not even put a thumb on the scale of which religion (if any) a person chooses, was a pragmatic insight derived from centuries of experience with the alternative. Every page of a philosopher’s treatise arguing for secularism is supported by a volume of history on crusades, martyrs, and inquisitions. It is true to say that the “neutral” state is not neutral in a strictly logical sense. An official commitment to democratic decision-making, individual rights, and the availability of intermediary associations is not “neutral” insofar as it excludes the opposite of those things.  But from the perspective of practical reason, a state that is formally agnostic about the existence and nature of transcendent goods or beings is as neutral a system of government as humans have ever managed to implement. We shouldn’t be so quick to dismiss it after it has achieved so much, especially with no viable alternatives on the table.

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