Sunday, April 17, 2016

Pitfalls in the Defense of Freedom

The claim that one is fighting for freedom sounds like a noble claim - which is probably why people use it a lot.

However, it is far too easy to claim that one is fighting for freedom when one is, in fact, not fighting for freedom at all.

Before the French Revolution, the King of France had the authority to create "Lettres de Cachet". These were the epitome of arbitrary rule. A lettre de cachet could be an order to arrest somebody and hold them in prison - without any trial or even any reasonable evidence of wrongdoing. French nobles would sometimes ask (pay) the King to have their wayward children arrested as a way of getting them under control or out of the way. People could also be send to convents or to asylums in this way.

When the call was made to end the practice of "lettres de chacet", one of the arguments that could be made is that to take this power away from the King is to take away the King's freedom. A person or group could make the claim, "We are the defenders of freedom, fighting against those who would end freedom by prohibiting . . . restricting . . . removing as an option . . . the King's ability to create such a letter."

Every action in defense of freedom necessarily has the effect of limiting freedom someplace else. To claim that Congress shall pass no law limiting the press is, in a sense, to deny Congress the freedom to regulate the press. To prohibit cruel and unusual punishment is to deny Congress and the courts the freedom to inflict cruel and unusual punishment. In both cases, it is open to somebody to claim, "I am a champion of freedom - for I seek to preserve the freedom to regulate the press and inflict cruel and unusual punishment that the enemies of freedom would take away."

We saw with the challenges to slavery in the early to mid 1800s that there were those who described this as the act of a tyrant taking away a person's freedom to own slaves. It was a tyrannical move on the part of a government that has grown far too powerful in that it could take away a person's property without their consent and without just compensation - depriving slave owners of their basic human rights.

Similarly, Jim Crow laws can be described as attempts to protect the freedom that business owners had in serving their customers. Ending these laws meant denying businesses the freedom to refuse service to blacks or to give their white customers better service or service where those customers did not need to worry that they might encounter blacks in any role other than as servants to be commanded. Jim Crow laws ended a long list of freedoms.

Today, we are facing a call to protect what some people call "religious freedom".

In effect, "religious freedom" as it is being used is quite similar to the King of France's freedom to use lettres de cachet, and the freedom that southerners had before 1865 to own slaves, and, in particular, the type of freedom once protected by Jim Crow laws. It is a freedom to discriminate and to inflict harms and injustices on others.

This can be clearly illustrated by the fact that a prohibition on burning suspected witches is a restriction on religious liberty. We do not allow the First Amendment guarantee of freedom of religion to imply that the government may not prevent a group of people from burning a suspected witch at the stake. Nor do we accept the argument that interfering with a person's attempt to behead an apostate constitutes a violation of the beheader's religious liberties.

Religious liberty, as the term is currently being used, represents a "freedom" to coerce people into attending religous events by placing those events where others cannot leave without costing them a significant non-religous value. Putting a religous event in a government meeting, for example, means that people are forced to choose between attending that religious event and participating as a citizen in the affairs of government.

When a religious event is placed in a school setting, coercion does not even involve a choice. Children are required to go to school. Consequently, if religious events are written into the school activities, children are directly coerced into attending and even participating in a religious event.

Nonsense claims to the contrary, a Pledge of Allegiance to "one nation under God" is a religious activity. The claim that it is a political event simply ignores the fact that an event can be both political and religious - which is exactly what happens when one mixes church and state. The coronation of a king by a bishop was, in its day, both a religious and a political event meant to symbolize the union of church and state - and a pledge of allegiance to one nation under God does exactly the same thing.

"Religious liberty" is currently being used to deny individuals their right to be considered equal citizens before the law. If government officials can use "religious liberty" to deny government services to certain people, then we effectively have a religious test for who may receive and who may be denied government assistance. A person's standing before the state must first pass a test of having the religious-based approval of the government agent assigned to his or her case.

As far as refusing service to a person for religious reasons, we need only to consider the essential nature of our interactions with business. Our interactions with business is how we get food, medical care, energy, shelter, and clothing. Taken to its extreme, the capacity to put barriers between individuals and the providers of such goods and services is nothing less than the power to kill. While we cannot expect that any individual would be so cut off that their life is in danger because of the religious attitudes of others, it is still the case that these barriers cause harm. Thus, "religious liberty" in these cases is still a liberty very much like the liberty to refuse service to blacks.

If one wants to argue that racial segregation was not founded on religious principles, we simply need to ask, "What if it had been? What if a religion comes into existence that declares one race as God's chosen and all lesser races are to be shunned lest the master race become contaminated physically or culturally. Would they have a "religious liberty" right to refuse service to blacks? If the answer is "no", then the fact that segregation did not happen to be religiously motivated is irrelevant.

If somebody wants to claim that they are defending freedom, they need to take care that what they are defending is not, in fact, the freedom to deny freedom to others. One needs to take care that they are not defending a modern equivalent of a freedom to own slaves, or a freedom that in some other way is, in fact, a privelege to deny freedom to others. Every place freedom is defended, somebody else is being denied the liberty to take away those freedoms. This leads to a potential for confusion where a "defender of liberty" might not actually be defending liberty at all.

No comments: