Religious Freedom Deserves a Right of Its Own
While the human right of religious freedom is ever crushed in China, Iran, Nigeria, and Uzbekistan and is newly curtailed in developed democracies, it has come to face an additional, more conceptual threat over the past quarter century in developed democracies. There, intellectuals are calling into question whether religious freedom merits a right of its own. This is a worrisome development for religious freedom. Its support everywhere depends on a consensus among scholars in universities and law schools, who train lawyers, civil servants, activists, and politicians, who in turn uphold the architecture of laws and policies that give this right legal force and moral legitimacy.
In December 2023, the world celebrated the seventy-fifth anniversary of the Universal Declaration of Human Rights, Article 18 of which gives pride of place to religious freedom. Now we must ask whether religious freedom will enjoy its status as a legally protected human right for another seventy-five years, or twenty-five, or ten. The human right of religious freedom needs a fresh defense.
Liberal and Postmodern Objections
Leading scholars of jurisprudence now argue that religion does not merit “special constitutional status,” in the words of Christopher Eisgruber and Lawrence Sager, and that “we [should] consider . . . abandoning the idea of a special right to religious freedom,” as Ronald Dworkin recommends. These three scholars doubt religion’s distinctiveness and maintain that it is arbitrary and unfair to privilege religion with a right that other forms of belief do not enjoy. They do not deny the value of religion, but they argue that it can be protected as simply one instance of a right to speech, conscience, or assembly. Like-minded scholars include Micah Schwartzman, Cécile Laborde, Martha Nussbaum, Brian Leiter, Jocelyn Maclure and Charles Taylor, Alan Patten, and Paul Bou-Habib. They represent a recent trend in the liberal tradition of thought that shares the tradition’s esteem for rights but departs from its historical affirmation of religious freedom. “What if Religion Is Not Special?” the title of an influential article by Schwartzman recapitulates.
