Friday, June 22, 2012

On Singer on Religious Liberty

Peter Singer has a truly absurd article up at The CapTimes in which he insists on -- 'argues for' would be too generous a phrase -- a particular conception of religious liberty, one in which it boils down to "rejecting proposals that stop people from practicing their religion," meant in the very strict sense of giving freedom only from things that make it impossible to practice your religion. He considers several cases -- Jewish and Muslim laws for slaughtering animals, Catholic opposition to contraception, the advocacy of certain Jewish groups of separate seating for men and women on buses and opposition of the same to elminating military service exemptions for full-time religious students. The basic idea, of course, is that nothing absolutely requires Jews and Muslims to eat meat, and nothing absolutely requires Catholics to be engaged in health care services, and nothing actually requires ultra-orthodox Jewish groups to ride buses or not to serve in the military if they are religious students. So there's no problem, and appeal to religious liberty in these contexts is a misuse or abuse of the right.

In reality there are plenty of problems with this, of course. The first is that it's effectively a claim that rights associated with religious freedom protect nothing except belief and a small handful of practices that the religion in question explicitly requires even in the face of death. For instance, on Singer's reasoning it's not a violation of religious liberty to forbid Catholics to attend Mass or Confession on pain of death. The reason is that, while there's a general requirement to attend Mass and Confession, it's a defeasible requirement: you aren't required to risk your life to go to Mass. And so on down the list. There are certain things that you are absolutely required to do even in the face of death -- hold fast to the confession of faith, for instance -- but very, very few religious practices fall under this category. And this tends to be generally true, although different religions have different ways of handling this issue (pretty much every major religion does, because historically it has come up on occasion). Anyone who thinks that religious freedom means that you are free to do those things that your religion requires you to be a martyr for, and nothing else, and that anyone appealing to religious liberty for other uses is "misusing" the right, deserves to be ridiculed as an idiot. Yet this is what Singer's argument requires: the prohibition or requirement would have to be categorical. If we start adding exceptions to this principle, however, Singer's argument falls apart -- his suggested solution is not, in fact, the solution to the problem, but some more complicated principle he doesn't give.

And these things are much trickier than Singer suggests, in any case. For instance, he says, "Catholicism does not oblige its adherents to run hospitals and universities." This is true in a sense, considering only this. But there's a good argument that the Church does require Catholics to defend the Church against any intrusion into its intrinsic rights and privileges and any unnecessary intrusions into its customary rights and privileges (and since Catholics have run hospitals and universities for something like eight centuries now, these are very, very customary) and it explicitly in a number of documents requires Catholics to uphold rights of religious conscience that are clearly more broad than anything Singer has in mind. So here we see another thing that Singer has overlooked: some requirements are specific and some requirements are general, and Singer is clearly only thinking of specific requirements. Yes, it's true that the Catholic Church does not require its adherents specifically to work for, maintain, or support hospitals and universities; but this does not mean that it has no relevant requirements that require specific action under the given circumstances.

Which leads to a third point. The Catholic Church also requires of its adherents acts of mercy, among which are visiting the sick, comforting the afflicted, and instructing the ignorant. Fulfilling these functions in an optimal way is precisely one of the reasons Catholics developed hospitals and universities. Singer only considers ends; he leaves means out of the scope of religious freedom entirely. This means that Singer's account of religious liberty is consistent with an extraordinary degree of religious persecution: no law would violate religious liberty unless it took away all means of fulfilling the relevant requirement, even if it made it extraordinarily difficult to do so. Now, Catholics being a large population with a wide diversity of resources, if contraception insurance is really so serious a matter as to demand the total dismantling of centuries-old and highly successful Catholic hospital and Catholic university systems, it would still be possible for Catholics to fulfill the requirements of mercy in some other way, although not as effectively. But it's important to understand that this 'religious liberty' is so minimal that very little short of active violence is forbidden. Religious congregations can be taxed out of existence; states can make laws so restrictive that it is very difficult for people to do anything to practice their religion (as long as it is still possible); religious property like churches or synagogues can be confiscated at will; and so on and so forth, and none of it counts as a violation of religious liberty. Given that all of these are historical ways in which religious groups are persecuted, Singer's conception of religious liberty is a pretty pathetic sort of freedom. What is more, it is a historically rootless conception of religious liberty as well: if you look at the history of the development of religious freedoms you will find almost immediately that all these kinds of scenarios were part of what the religious freedoms were developed to avoid, and Singer's account of religious liberty has room for none of them.

It is unclear why we are forced into this strait of considering requirements alone, anyway. There is no form of liberty that we protect solely by looking at what is absolutely required for it. Suppose, for instance, that you have a certain right -- make it whatever you will -- and that you are faced with government actions that, while technically consistent with that right, put you in a position where you will be worse off if you make use of that right. Singer is arguing that, as long as a government action is technically consistent with right to practice your religion, it is illegitimate to criticize and oppose a government action on the basis of that right, because your opposition is not "really" based on that right. But this is irrational nonsense. Even if something is technically consistent with a right, that doesn't mean that it can't be opposed on the basis of that right. Because not only are there things that are strictly required or prohibited in order to maintain a right in the first place, there are different things that make a society better or worse in terms of that right. For instance, technically, if we are all allowed free speech one day a year, and only one day a year, we still have a right to free speech. I mean, one day a year you can say whatever you want; that's free speech, and everyone has a right to it. But that doesn't mean that this is a society that is a good society in terms of its respect for free speech. Obviously that's an extreme example, but it makes the point: some actions are more conducive to the protection that the right is supposed to give. Some actions penalize people using their rights even though they still allow them to act in accordance with them. People can reasonably appeal to rights even when they are not strictly violated in the case at hand, if they feel that the case at hand is putting the society uncomfortably close to being the kind of society that would violate the right. Likewise, they can actively work for a society that offers more extensive protections for that right, and they can oppose actions that roll back protections for that right, all in the name of that right. None of this is unreasonable.

Moreover, it's simply good sense to realize that people are being reasonable if they oppose actions that unnecessarily make them worse off if they act in accordance with their right; and it's good sense to recognize that a reasonable government will take steps not to make people worse off when they act in accordance with their rights, to the extent that that is possible. This means that people can appeal to their rights on a much grander scale than Singer is allowing, and, yes, they can do so even if other people disagree. If you say that I can have free speech but only as long as I give up my job, I am not being unreasonable in opposing your conditions in the name of free speech, despite the fact that you are technically still allowing me free speech. If your whole claim that you are still protecting religious liberty rests on the principle that you are allowing people to do what the Catholic Church says they should do, and all Catholics have to do in return is shut down their universities and hospitals, you really don't have cause to be surprised if any of them happen to think that you are an enemy of religious liberty. If we allow freedom of press as long as the press sticks to print, it is entirely possible to doubt that we are seriously doing what we should to protect freedom of press, and it is no good insisting that the press under our plan has perfect and complete freedom because there's nothing about the freedom of press that requires journalists to use television and radio.

It is entirely true that on these last few points, since we aren't dealing with strict requirements, the lines could be drawn in more than one place. They have to be negotiated through normal and reasonable channels of society. But one thing you don't get to do is tell people that they can't negotiate them. And Singer's argument requires this, since it implies that (for instance) no one can oppose an action by appeal to a right because they are worried that the action, without violating the right itself, makes it easier to violate the right, or that it imposes undue hardship or too high a price for the exercise of that right, or anything that is not a strict violation of rights. No rights can be properly protected under those terms; it's a claim that no one can appeal to them until they are in imminent danger of being violated, that no one can advocate a society that does better in protecting them. What Singer is arguing is ridiculous for any right; and it is a ridiculous thing to argue here.

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