The American right often complains that their “religious freedoms” are being eroded in the public space, whether it is their desire not to participate in gay weddings or pay for contraceptives, etc. They complain that the left or neo-liberals seek to restrict “religion” to purely the four walls of the Church.

The problem of course is with the very idea of “religious freedom” in the first place. Once it is postulated that there is a class of actions which are considered to be “religious”, supposedly protected under the constitution, as distinct from other kinds of actions, then the irresistible conclusion is that distinctly “religious actions” simply refer to worship or what goes on in actual religious corporations or buildings. In order to reconcile the idea of religious freedom with actions outside of religious buildings or corporations is to postulate that potentially any act can be considered religious as long as the person subjectively considers it to be religious. But to most people this is patently absurd as that would mean that every act is latently religious and therefore you should be free to do anything as long as you think it is religious. The other more sensible alternative to their minds is that distinctly religious acts are just religious acts, worship and what happens in religious buildings or corporations.

This incidentally reinforces one of my core critiques of constitutionalism and the problem of having a centralised document define your rights. As I’ve argued numerous times, the “unwritten constitution” view of rights in English law is that you can do anything whatever you want except for these particular instances as specified by the law, rather than have a legal document specifying the extent and scope of your rights/freedom. The example I like to use is that of the U-turn sign. In Singapore you are not allowed to make a U-turn unless there is a sign authorising you to do so, in other parts of the world you can make a U-turn unless there is a sign saying you can’t. I’m saying that the default mode should be freedom and that these rights and freedom do not come from a specific legal document but should be simply assumed (thus the default mode is that you can make a U-turn, unless there is a sign telling you not to). The law should simply circumscribe crime, not specify the extent of your rights.

The moment you have a document specifying a right to “religious freedom”, the irresistible inference is to define and delimit the exact scope of this freedom and thereby confine it to this particular set, and nothing beyond. In English law religious freedom doesn’t come from a specifically defined legal concept, it happens when blasphemy laws are abolished and when people ceased to be persecuted for espousing heresy. Thus freedom is attained by repealing mandatory religious acts or beliefs or decriminalising irreligious acts, not by creating a special category of “religious freedoms” and confining it there.

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