The Irrelevance of Religion to Law

Abstract

Political theorists ask whether religion is in some sense special within liberal democracies, by which they mean whether religious practices warrant some preferential treatment, such as duties to accommodate them or exempt them from general laws. They treat this question as a philosophical one, about the best way to understand liberalism, and the place of religion within it. Yet many think that whether religion is special in law, is a factual question, to be answered by consulting the text of treaties and constitutions, the intentions of those who enacted them or the cases decided by courts. And the orthodox view amongst most lawyers and political theorists is that religion is clearly special in law, in virtue of the fact that freedom of religion is enumerated as a distinct constitutional or human right. In this paper, I take issue with this orthodoxy. I argue that neither the text nor the drafters’ intentions suffice to establish that there is a legal right to freedom of religion, as separate from a general right to freedom of thought and belief. I argue further that it does not follow from the fact that the text of the law mentions the word ‘religion’, that the law picks out the concept of religion. Law may be interested in only some aspects of religion, or none. Whether religion is relevant and special to law, is in the end a moral not a factual question, and no different than the question that political theorists ask.

Keywords: law and religion, freedom of religion, religious accommodation, human rights, legal interpretation, liberalism