The Cynical Use of “Freedom of Religion”

In response to the injustices of the Second World War, on December 10, 1948, the United Nations’ General Assembly adopted what it called the Universal Declaration of Human Rights (UDHR).

On this, the 60th anniversary of the Declaration, it is time to take a look at the ways that one of the human rights it listed, the idea of religious freedom, is being used, ironically, to further discriminatory agendas.

Here is what the Declaration has to say about religious freedom:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

This right, which we have grown to take for granted, was far from certain sixty years ago when the Declaration was adopted. As late as the 19th century, for instance, the Catholic Church rejected the right to religious freedom. They feared that this right would marginalize religious belief (or perhaps more accurately, they feared that this would open the door for more than one path to salvation). In the course of World War II, the adoption of the Universal Declaration of Human Rights, and the Second Vatican Council, the Catholic Church came to be one of religious freedom’s greatest allies.

But the clock seems to be ticking backwards.

The Catholic Church and LGBTQ Rights

On the occasion of this anniversary, France—which is, at present, heading up the European Union—and the rest of the EU, is introducing a UN declaration condemning discrimination and violence on the basis of sexual orientation or gender identity. Currently, over 80 countries have laws condemning homosexuality with punishments including anything from long-term prison sentences to the death penalty.

The Catholic Church has chosen to oppose this declaration. But instead of citing the doctrine of the institutional Catholic Church that condemns the act of homosexuality (not homosexuals, mind you), they have instead based their opposition on the right to religious freedom.

After taking some heat over several inflammatory—bordering on discriminatory—comments of apostolic nuncio to the United Nations, Archbishop Celestino Migliore, Vatican spokesperson Father Federico Lombardi stated:

[This proposal] introduces a declaration of political value that could result in systems of control, according to which, every norm—not only legal, but also related to the life of social or religious groups—which does not place every sexual orientation on exactly the same level could be considered as contrary to respect of human rights.

This could clearly become an instrument of pressure or discrimination against those who, just to put a very clear example, consider marriage between a man and a woman to be the fundamental and original form of social life, and as such, [believe] that it should have a privileged place.

What the Vatican is claiming here is that this UN declaration on LGBT rights would violate the religious freedom of those who would like to oppress homosexuals. The Vatican is, in a brilliant stroke of PR, playing the “religious freedom” card by using this idea as part of a strategy. The stance hails back to the time the Catholic Church feared that the right to religious freedom would move Catholic ideology to the fringes. The Vatican now fears that this declaration would marginalize institutional Catholic thought on homosexuality, thereby undermining the Vatican’s position as the moral authority on the human rights stage.

The Pulpit Initiative and Nonprofit Status

The religious right in the United States has done a similar thing, standing behind the shield of religious freedom to fight against the restriction of speech for 501(c)(3) organizations.

In 1954, Senator Lyndon Johnson presented an amendment to Internal Revenue Code 501(c)(3), which was subsequently adopted by Congress. The amendment defined nonprofit tax-exempt entities—including churches—as those “which [do] not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”

During the recent election cycle, the Alliance Defense Fund (ADF)—who considers itself the antithesis of the American Civil Liberties Union—launched their “Pulpit Initiative” to combat the 1954 Johnson Amendment. ADF considers the restriction a violation of a church’s right to freedom of speech and freedom of religion. The Pulpit Initiative White Paper states:

The prohibition also violates the free exercise of religion. Under the Free Exercise Clause, laws are closely scrutinized by courts when they discriminate against religion or when they substantially burden religious exercise and other constitutional rights are also at stake…

When the IRS threatens to revoke a church’s tax-exempt status for a pastor’s sermon from the pulpit, it is expressly discriminating against religious speech. Such direct discrimination, and the prospect of civil or criminal penalties, make the amendment unconstitutional.

Joe Conn, spokesperson for Americans United for the Separation of Church and State, suggested that the ADF’s project was simply a “stunt” by the religious right to “put their candidates into office. It’s part of the overall game plan.”

Assuming Conn is right in his assertion, then the ADF is using the idea of religious freedom in the most cynical way, seeming to place religious freedom above all other rights—such as the right to self-determination—in order to achieve their political goals.

The Religious Left and Proposition 8

The religious left seems to have picked up on this strategy as well, but with a different aim. On November 4, the state of California passed Proposition 8, which adds the following phrase to the California state constitution: “only marriage between a man and a woman is valid or recognized in California.” Losing Prop 8 by only a slight margin, the progressive community has been working together to find solutions to negate the passage of this discriminatory amendment.

On November 17, California religious leaders and organizations, including the Unitarian Universalist Legislative Ministry of California, the General Synod of the United Church of Chirst, two Episcopal Bishops, and the Progressive Jewish Alliance, filed a petition with the California Supreme Court “asking the court to invalidate Proposition 8.”

The petition asserts that Proposition 8 is a violation of the right to religious freedom. It states:

If Proposition 8 is valid, taking away from gay men and lesbian citizens the right to equal protection of the laws as it affects a fundamental right (the right to marry), then the petitioners’ right to be free from discrimination or persecution on the basis of religion is similiarly vulnerable to being overridden in a general election by a simple majority vote…

We must remind ourselves, even today, that minorities in general—and religious minorities in particular—require protection from the majorities. Although a person’s religion is not an “immutable,” it is, like other characteristics that receive strict scrutiny, an “integral aspect of a person’s identity” which it is not “appropriate to require a person to repudiate…in order to avoid discriminatory treatment.”

Here, religious groups are using the idea of religious freedom to protect the rights of gay men and lesbians. They are not creating a hierarchy of rights with religion at the top, but calling for the equal protection of all rights—from the right to religious freedom to the right to marry.

So, is Religious Freedom a Right, or Just Another Card to be Played?

When they claim that freedom of religion trumps all other rights—like the right to safety, the right to education, the right to equality in the workplace, and so on—religious groups are assuming a hierarchy of rights that simply does not exist anywhere in the Universal Declaration of Human Rights:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

On this anniversary, as we note the different ways religious communities have used the idea of religious freedom, it must be remembered that the UDHR called for human rights without distinction.