January 21, 2009

The Limits of Religious Toleration

In a very sad case out of Wisconsin, the parents of 11 year old Kara Neumann are being prosecuted for reckless endangerment after their daughter died of diabetes. They refused medical care for their daughter on account of their religious beliefs. (They do not belong to the Church of Christ, Scientist, which I believe is the largest religious organization which forbids its adherents from seeking medical care; rather, it appears that they are followers of some internet group by the name of "Unleavened Bread Ministries".) The Neumanns originally entered a constitutional challenge to their prosecution. The judge ruled that "the free exercise clause of the First Amendment protects religious belief, but not necessarily conduct." At what point ought the government to interfere with religious practices? Certainly before an innocent person dies as a result of them. But how do we set up a principled distinction that protects religious practice without making religion a blank check for illegal behavior?

In his "Letter Concerning Toleration", John Locke answers this question as follows:

As the magistrate has no power to impose by his laws the use of any rites and ceremonies in any church, so neither has he any power to forbid the use of such rites and ceremonies as are already received, approved, and practised by any church; because, if he did so, he would destroy the church itself: the end of whose institution is only to worship God with freedom after its own manner.

You will say, by this rule, if some congregations should have a mind to sacrifice infants, or to (as the primitive Christians were falsely accused) lustfully pollute themselves in promiscuous uncleanness, or practice any other such heinous enormities, is the magistrate obliged to tolerate them, because they are committed in a religious assembly? I answer, No. These things are not lawful in the ordinary course of life, nor in any private house; and therefore neither are they so in the worship of God, or in any religious meeting. But, indeed, if any people congregated upon account of religion should be desirous to sacrifice a calf, I deny that that ought to be prohibited by a law. Meliboeus, whose calf it is, may lawfully kill his calf at home, and burn any part of it that he thinks fit. For no injury is thereby done to any one, no prejudice to another man's goods. And for the same reason he may kill his calf also in a religious meeting. Whether the doing so be well-pleasing to God or no, it is their part to consider that do it. The part of the magistrate is only to take care that the commonwealth receive no prejudice, and that there be no injury done to any man, either in life or estate. And thus what may be spent on a feast may be spent on a sacrifice. But if peradventure such were the state of things that the interest of the commonwealth required all slaughter of beasts should be forborne for some while, in order to the increase of the stock of cattle that had been destroyed by some extraordinary murrain, who sees not that the magistrate, in such a case, may forbid all his subjects to kill any calves for any use whatsoever? Only it is to be observed that, in this case, the law is not made about a religious, but a political matter; nor is the sacrifice, but the slaughter of calves, thereby prohibited.

By this we see what difference there is between the church and the commonwealth. Whatsoever is lawful in the commonwealth cannot be prohibited by the magistrate in the church. Whatsoever is permitted unto any of his subjects for their ordinary use, neither can nor ought to be forbidden by him to any sect of people for their religious uses ... But those things that are prejudicial to the commonweal of a people in their ordinary use, and are therefore forbidden by law, those things ought not to be permitted to churches in their sacred rites. Only the magistrate ought always to be very careful that he do not misuse his authority for the oppression of any church, under pretence of public good. (The Second Treatise of Government and A Letter Concerning Toleration, Dover Thrift Edition, pp. 135-136)

Locke's claim is that, with regard to both commissions and omissions, the legality or illegality of an act ought not to be altered by its being associated with religious practice. Earlier in his letter, Locke says, for instance, that a magistrate may require that all infants be washed with water if, perhaps, this is helpful in preventing the spread of disease, but the magistrate may not require the washing to take place in a baptismal font! "Civil interests [are] life, liberty, health, and indolency of body; and possession of outward things, such as money, lands, houses, furniture, and the like," and it is these with which civil government is concerned (p. 118). The magistrate is to protect these interests for all of his subjects equally. These interests, Locke argues, are totally disjoint from the interests of churches, which are voluntary associations concerned with worshiping God in a manner pleasing to him, the salvation of souls, and true religious belief. Churches can make their own rules and enforce them by kicking people out, but no one may receive civil punishment for violating the rules of the church. According to Locke, the voluntariness of the church as an association is essential to its identity, so that for a church to become 'established' (endorsed by the state) is a sort of suicide.

Now, as is well known, Locke's political theory was highly influential in the decision of the American colonies to rebel and in the form of government they eventually established for themselves. We therefore read in the First Amendment to the US Constitution, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Congress, the amendment says, is not to make laws about religious establishments. This does not prevent Congress from making laws about slaughtering calves - or, more importantly, about child endangerment. These laws are not about religious establishments - it just so happens that some people believe that their religion requires them to do things which are, for perfectly good reasons, illegal. If people wanted to literally sacrifice their children, the law would surely prevent them. Now, it is possible to read into the 'free exercise' clause Locke's warning: "the magistrate ought always to be very careful that he do not misuse his authority for the oppression of any church, under pretence of public good." That is, Congress should give some degree of deference to religious practice and not interfere with it unnecessarily, and especially shouldn't create laws that are designed to interfere with religion but have been carefully phrased not to mention it. I don't know the history of jurisprudence on this subject, but, given the Lockean basis of much of the design of the US government, I strongly suspect that this may have been the original intent of that wording.

I want to make just two more points about this issue:

Firstly, for a classic liberal like Locke, and even more so for a modern libertarian like myself, there are strict limits on what the government can regulate. Locke gives examples of regulations in his "Letter Concerning Toleration" (like the law against slaughtering calves) that rather puzzle me in light of the "Second Treatise." I'll be studying the "Second Treatise" more this quarter, so perhaps it will start to make sense. At any rate, it is clear that, for Locke, the laws have to respect individual rights and be directed toward legitimate purposes for the common civil good.

Secondly, it is extremely difficult to draw a line that protects the rights of parents to raise their children as they see fit while still protecting children from parents who are genuinely abusive or neglectful. From a libertarian perspective, we want to say that the parents hold some, but not all, of the rights of their children in trust, but I have never seen a systematic account of which rights the parents hold to exercise on the child's behalf as they wish, and which are retained so that the parents may not violate them. In the Neumann case, however, we have behavior that, even if sincere and well-meaning, is obviously abusive and criminal: it resulted in an easily preventable death. These parents should go to jail, and the fact that it was because of their religion that they sat by and watched their child die should not be a mitigating factor in their sentence.

Posted by Kenny at January 21, 2009 12:13 PM
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