Professional Documents
Culture Documents
1. Introduction
Michael J. Perry, a distinguished American scholar of law, religion, and morality, has
advocated broadening the paradigm of the right to religious freedom into what he
calls the right to “religious and moral freedom.”1 That is, he defends extending the
right to religious freedom to embrace moral freedom and making this expanded right
mandatory for liberal democracies. According to Perry, this extension of the right is
* Professor of Law at the University of Navarra School of Law and Francisco de Vitoria Senior Fellow at the Center
for the Study of Law and Religion at Emory Law School in Atlanta. E-mail: rafael.domingosle@gmail.com.
1
Michael J. Perry, The Right to Religious and Moral Freedom, in Religion and Human Rights. An Introduction
269 (John Witte, Jr and M. Christian Green eds., 2012) [hereinafter Religious and Moral Freedom]; and
Michael J. Perry, The Right to Religious Freedom, with Particular Reference to Same Sex Marriage, 1 J. L.,
Religion & State 147 (2012) [hereinafter The Right to Religious Freedom]. In id. at 151, Perry says that he
refers to the right to religious and moral freedom as just the right to religion “for the sake of economy
the best way to protect rigorously the freedom to live one’s life in harmony with one’s
deepest and ultimate convictions and commitments, whether or not one’s morality
is religiously based.2 This doctrinal elaboration of a new right to religious and moral
freedom is part of his ambitious project of developing a “global political morality”3 of
liberal democracies based on human rights.4 Although Perry focuses on the United
States,5 his approach aspires to universal validity,6 and he grounds his arguments
partly in international human rights instruments and comparative constitutional
case law.7
In this article, I take for granted the widely accepted point,8 which Perry also
of expression.” See also Michael J. Perry, The Right to Religious and Moral Freedom, in Michael J. Perry,
Human Rights in the Constitutional Law of the United States 112 [ch. 7] (2013) [hereinafter Human Rights
in the Constitutional Law]. For a revisited version of this chapter 7, see Michael J. Perry, Freedom of
Conscience as Religious and Moral Freedom, J. L. & Religion (forthcoming 2014) [hereinafter Freedom of
Conscience].
2
Perry, Religious and Moral Freedom, supra note 1, at 270; Perry, Human Rights in the Constitutional Law,
supra note 1, at 116–117.
3
Perry, Human Rights in the Constitutional Law, supra note 1, at 1.
4
See Michael J. Perry, The Idea of Human Rights (1998); Michael J. Perry, Toward a Theory of Human Rights
(2007); Perry, Human Rights in the Constitutional Law, supra note 1, at 1.
5
Perry, Human Rights in the Constitutional Law, supra note 1, at 1–3.
6
Cf. Michael J. Perry, The Political Morality of Liberal Democracy, esp. at 1–6 (2010).
7
Cf. Perry, Religious and Moral Freedom, supra note 1, at 269–272; Perry, Human Rights in the Constitutional
Law, supra note 1, at 112–118.
8
For a defense of this expansion, see the masterpiece Charles Taylor, A Secular Age, esp. at 1–22 (2007).
9
Perry, Human Rights in the Constitutional Law, supra note 1, at 120
10
See Rafael Domingo, A New Paradigm for Religious Freedom, 56(2) J. Church & State (forthcoming June
2014).
11
See infra Sections 4 and 6. Religious values and traditions can be important elements of the culture of a
political community, but democratic political communities as such are by nature not religious communi-
ties since they can neither use the religious argument nor impose on citizens an act of faith or adherence
to a concrete religion. Moreover, the end of the political community is not the religious good, but there is
instead the moral good.
228 I•CON 12 (2014), 226–247
12
Cf. these expressions at the beginning of Alexander Hamilton, The Federalist Papers No. 31 (1788), avail-
able at www.constitution.org: “In disquisitions of every kind, there are certain primary truths, or first
principles, upon which all subsequent reasonings must depend.”
13
See Lon L. Fuller, The Morality of Law 189 (rev’d ed. 1969).
14
See Remi Bragué, The Law of God. The Philosophical History of an Idea (2007).
15
See now Perry, Freedom of Conscience, supra note 1.
16
Perry, Human Rights in the Constitutional Law, supra note 1.
17
Perry, supra note 6, at 123–155; Perry, Religious and Moral Freedom, supra note 1, at 269–272; Perry,
Human Rights in the Constitutional Law, supra note 1, at 113–122.
18
Perry, supra note 6, at 123–155; Perry, “The Right to Religious Freedom, with Particular Reference to
Same Sex Marriage,” in Journal of Law, Religion & State 1 (2012) 149–179; Perry, Human Rights in the
Constitutional Law, supra note 1, at 136–178
A right to religious and moral freedom? 229
19
See Perry, supra note 6, at 9–26; Perry, Religious and Moral Freedom, supra note 1, at 269–272; and Perry,
Human Rights in the Constitutional Law, supra note 1, at 30–31.
20
See Perry, supra note 6, at 11 and 92.
21
Cf. Universal Declaration of Human Rights, art. 1.
22
See Perry, Human Rights in the Constitutional Law, supra note 1, at 27.
23
See id. at 28.
24
See id. at 28.
25
See id. at 23 and 28.
26
See id. at 22–23.
27
See id. at 105.
28
See Perry, supra note 6, at 62: “the human right to moral equality is the right of every human being to
be treated by lawmakers and other governments officials as one who has equal inherent dignity and is
inviolable.” See also Perry, Human Rights in the Constitutional Law, supra note 1, at 105–111.
29
See Perry, Human Rights in the Constitutional Law, supra note 1, at 106.
30
See Perry, supra note 6, at 65.
31
Id. at 89.
230 I•CON 12 (2014), 226–247
Liberal democracies are also committed to the right to moral freedom, Perry con-
tinues.32 Moral freedom is the freedom to live one’s life in harmony with one’s moral
convictions and commitments, whether or not they are transcendent.33 Since, accord-
ing to Perry, “there is no way to address fundamental moral questions without also
addressing, if only implicitly, religious questions,”34 the right to religious freedom
must be expanded into a right of religious and moral freedom. Moral freedom and reli-
gious freedom are more than analogous or complementary rights.35 They constitute a
single fundamental right, which protects “the freedom to live one’s life in accord with
one’s religious and/or moral convictions and commitments.”36 So, it is “misleading”
32
Id. at 88–99.
33
Id. at 89.
34
Id. at 89.
35
Id. at 89.
36
Perry, Human Rights in the Constitutional Law, supra note 1, at 116.
37
See id. at 116.
38
See Perry, Freedom of Conscience, supra note 1.
39
See Perry, Human Rights in the Constitutional Law, supra note 1, at 113.
40
See Perry, From Religious Freedom to Moral Freedom, in San Diego L.R. 47 (2010) 1001. See also Perry, supra
note 6, at 88. Perry is deeply influenced by John Courtney Murray, as he expressly recognized. See John
Courtney Murray, Religious Liberty. Catholic Struggles with Pluralism (5th ed., Westminster, John Knox
Press, Louisville, Kentucky, 1993).
41
Perry, supra note 6, at 92–96.
42
Perry, Religious and Moral Freedom, supra note 1, at 274.
43
Perry, supra note 6, at 93.
44
Perry, Religious and Moral Freedom, supra note 1, at 272; Perry, The Right to Religious Freedom, supra note
1, at 156; Perry, Human Rights in the Constitutional Law, supra note 1, at 122.
A right to religious and moral freedom? 231
45
Perry, Human Rights in the Constitutional Law, supra note 1, at 121–122; Perry, Religious and Moral
Freedom, supra note 1, at 272.
46
Perry, supra note 6, at 75–80; Perry, Religious and Moral Freedom, supra note 1, at 273–274; Perry, The Right to
Religious Freedom, supra note 1, at 159–164; Perry, Human Rights in the Constitutional Law, supra note 1, at 122.
47
Perry, Religious and Moral Freedom, supra note 1, at 272.
48
Perry, Human Rights in the Constitutional Law, supra note 1, at 125.
49
See id. at 125. According to Perry, a non-affirmation of moral or religious belief fits into this paradigm;
for example, the US national motto “In God We Trust,” or the expression “Under God” in the Pledge of
Allegiance. See a development of this argument in Perry, supra note 6, at 100–119 (ch. 6).
50
Perry, supra note 6, at 99.
51
Adopted by the United Nations General Assembly on Dec. 16, 1966, entered into force Mar. 23, 1976.
52
Perry, Religious and Moral Freedom, supra note 1, at 269. See Perry, Human Rights in the Constitutional Law,
supra note 1, at 113.
53
See his argument in Perry, Religious and Moral Freedom, supra note 1, at 269–270. See also Perry, Human
Rights in the Constitutional Law, supra note 1, at 113–116.
54
Perry, Human Rights in the Constitutional Law, supra note 1, at 136–178. See also Perry, supra note 6, at
123–155; and Perry, The Right to Religious Freedom, supra note 1, at esp. 164–179.
55
Perry, Human Rights in the Constitutional Law, supra note 1, at 179.
56
Id. at 179. See also Perry, The Right to Religious Freedom, supra note 1, at 174–179.
232 I•CON 12 (2014), 226–247
57
John Locke, A Letter Concerning Toleration, in The Selected Political Writings of John Locke 126 (Paul
E. Sigmund ed., 2005).
58
For further information, see John Witte, Jr, The Reformation of Rights. Law, Religion, and Human Rights in
Early Modern Calvinism (2007); Christianity and Human Rights (John Witte, Jr & Frank S. Alexander eds,
2010).
59
Cf. James Madison, Memorial and Remonstrance against Religious Assessments (1785) no. 1, available at
http://religiousfreedom.lib.virginia.edu/sacred/madison_m&r_1785.html. See also the Constitution of
Massachusetts (1780) pt I, art. II, drafted chiefly by John Adams, available at http://press-pubs.uchicago.
edu/founders/documents/bill_of_rightss6.html: “It is the right as well as the duty of all men in society,
publicly, and at stated seasons, to worship the Supreme Being, the great creator and preserver of the
universe.”
60
Locke, supra note 57, at 134.
61
Roger Williams, The Bloody Tenent of Persecution for Cause of Conscience [1644], in On Religious Liberty.
Selections from the Works of Roger Williams 85, 87 (James Calvon Davis ed., 2008).
62
Cf. Brian Tierney, The Idea of Natural Rights (1997); John Witte, Jr, The Reformations of Rights esp. 143–
208 (2007).
A right to religious and moral freedom? 233
63
See Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948);
International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No.
16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976; and see the full
text of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on
Religion or Belief, G.A. res. 36/55, 36 U.N. GAOR Supp. (No. 51) at 171, U.N. Doc. A/36/684 (1981).
See also Guidelines for Review to Legislation Pertaining to Religion or Belief, Title II, § A, no. 3, adopted
by the Venice Commission at 59th Plen. Sess., June 18–19, 2004, available at http://www.osce.org/
odihr/13993.
64
While this norm was set out in U.S. Const. amend. I (1791), it was not actively enforced in the United
States until the case of Everson v. Board of Education 330 U.S. 1 (1947). For an overview, see John Witte,
Jr & Joel A. Nichols, Religion and the American Constitutional Experiment 125–126 (3d ed. 2011).
65
See Jocelyn Maclure & Charles Taylor, Secularism and Freedom of Conscience 110 (2011).
66
See John Rawls, Political Liberalism 385–395 (expanded ed. 2005).
234 I•CON 12 (2014), 226–247
other rights are of a different ontological quality, they are supported by the same legal
framework: the paradigm of a right to protect a good for society that is freely chosen by
the individual. So they can serve as a useful analogy. The right to marriage should pro-
tect both people who decide to marry and people who decide not to marry. The starting
point of the right to marriage is the personal autonomy to decide whether to marry.
The right not to marry is not strictly a derivation of the right to marry, but simply a
derivation of moral autonomy. However, under the umbrella of the right to marriage a
legal system can protect both married and single people; i.e., the right to marriage can
also protect the “freedom from marriage.” Without reference to a social union or legal
In the same vein, see Robert Audi, Democratic Authority and the Separation of Church and State 12 (2012):
67
“The point is that knowledge of moral truths does not depend on knowledge of God or religious truths (or
on justification for religious or theological propositions).”
236 I•CON 12 (2014), 226–247
affirms Niklas Luhmann.68 And Ronald Dworkin’s book Justice for Hedgehogs is just the
most recent important attempt to support morality without religion.69
A devout Sikh boy who decides not to wear his dagger (kirpan) in school because
it could be dangerous for classmates is making a moral decision on the basis of a
religious precept to which he is committed.70 A Jewish person who decides not to
attend military service in order not to bear arms is making a decision based on moral
grounds but not on religious grounds, because Judaism does not ban the bearing of
arms. A Christian who skips church on Sunday to take care of his or her grandfather
is contravening a religious commitment out of a moral concern for solidarity. The
68
See in this vein Niklas Luhmann, A Systems Theory of Religion 123 (2013).
69
Ronald Dworkin, Justice for Hedgehogs (2011).
70
For a deep commentary on religious toleration based on this example, see Brian Leiter, Why Tolerate
Religion? (2013).
A right to religious and moral freedom? 237
issues affect legal systems of political communities more strongly than religious issues.
The decision of a political community to be neutral on some moral issues is a moral
decision, not just a political one. That is why no political community is morally neu-
tral. Moreover, political decisions about being or not being neutral about religion are
not religious decisions, but they are moral decisions. They are decisions about how to
achieve the common good of the community. Behind the constitution and structure of
each legal system, there are critical moral decisions. Even the decision strongly to sep-
arate law and morality as two different entities without connection, as analytical legal
positivism demands, is not only a legal philosophical decision, but a moral decision:
Lon L. Fuller, The Morality of Law 33 (rev’d ed. 1969). In a similar way, see Nigel Simmonds, Law as a Moral
71
Idea (2007).
238 I•CON 12 (2014), 226–247
Morality is on both sides of the wall dividing politics and religion. The difference
between political morality and religious morality is that political morality should be
reasonable, i.e. it should be based on a moral rationale. Otherwise, it cannot be applied
according to the standards, rules and procedures of legal systems (constitutional law,
criminal law, tax law, property law, and so on). Religious morality, however, can be
based on a moral rationale, but also on what I shall call a moral “supra-rationale” (not
against but beyond reason) or even an irrational moral claim. The religious prohibition
of slavery is based on a moral rationale, not a moral supra-rationale. So, political and
religious communities can concur in banning slavery on the ground of its immoral-
See Robert Audi, Democratic Authority and the Separation of Church and State 12–13 (2011).
72
A right to religious and moral freedom? 239
The morality of human rights could be the minimum rational morality imposed
by consent in the global human community, but there is no moral justification for
restricting smaller political communities to the same minimum morality. The possi-
bility of diversification does not entail an obligation to minimize public morality in
a political community. If a nudist community decided to move to downtown Atlanta
that would not mean that nudism should be permitted to accommodate the new com-
munity based on diversity. Diversity is a fact, and it can be a value worthy of protection
when it leads to the good of the community.
74
See Perry, supra note 6, at 88–99.
75
See id. at 93.
76
See Perry, Human Rights in the Constitutional Law, supra note 1, at 122. See also Perry, supra note 6, at 91.
77
Perry, Human Rights in the Constitutional Law, supra note 1, at 125.
A right to religious and moral freedom? 241
the essence (and the end) of moral freedom is the pursuit of the good, in accordance
with which people can shape their own choices. As Joseph Raz rightly emphasizes:
“Autonomy is valuable only if exercised in pursuit of the good.”78 From this point of
view, moral autonomy is analogous to freedom of scientific research. The purpose
of freedom of research is the research as such, not autonomy or self-determination,
although researchers need autonomy in their fields of research. Freedom of research
serves science and not the freedom of the scientist. Freedom of research is valuable
only as a means to high-quality research. For the moral independence approach, how-
ever, moral freedom will be closer to freedom of thought (if it is not a species of it), in
78
In this vein, see Joseph Raz, The Morality of Freedom 381 (2009 [1986]).
79
Perry, supra note 6, at 61.
80
Perry, Human Rights in the Constitutional Law, supra note 1, at 125.
81
Perry, supra note 6, at 93; Perry, Religious and Moral Freedom, supra note 1, at 273–274.
82
Perry, Religious and Moral Freedom, supra note 1, at 272–274.
242 I•CON 12 (2014), 226–247
convictions is itself the dictate of a moral conviction. It dictates the moral restriction
that morality beyond human rights is by definition a res privata which may be limited
by government only when limiting it serves a legitimate interest or objective. It dictates
the moral conviction that the status of all human beings as equally moral entails the
equality of moralities, and even the free practice of one’s morality. It dictates the moral
conviction that beyond the morality of human rights, morality is sectarian and can
be regulated only to serve legitimate interests or objectives. Perry’s definition of legiti-
mate interests83 is too narrow. For if it is read in the broadest sense, it seems axiomatic
that policies should serve legitimate interests, and those policies that don’t do so are
Id.
83
Against this idea see Maclure & Taylor, supra note 65, at 105: “There do not seem to be any principled rea-
84
sons to isolate religion and place it in a class apart from the other conceptions of the world and the good.”
A right to religious and moral freedom? 243
of this basic human right, but the point of the right is to protect not freedom, which
is instrumental, but the religious dimension of human beings in their individual and
social attitudes and expressions. This articulation of the “right to religion” gives us a
deeper understanding of its internal structure.
The right to religion establishes a limit to political government by protecting the
religious capacity of the human person against political monopolization. But it also
protects governments from improper religious interference. The right to religion pre-
vents governments from instrumentalizing religion by recognizing the existence of
autonomous religious communities and institutions. This right is based on the idea
85
For further explanation of this argument, see Rafael Domingo, A New Global Paradigm for Religious
Freedom, 54(3) J. Church & State (forthcoming June 2014).
86
Witte, Jr & Nichols, supra note 64, at 41–70.
87
Ronald Dworkin, A Matter of Principle 191 (1990 [1985]).
88
Bruce Ackerman, Social Justice in Liberal State 10 et seq. (1980).
89
For the beneficial influences of religion, see Jürgen Habermas, Between Naturalism and Religion. Philosophical
Essays 124–125, 209–247 (Ciaran Cronin trans., 2009).
90
In the same vein, on the US religious experience, see Andrew Koppelman, Defending American Religious
Neutrality esp. 26–42 (2013).
244 I•CON 12 (2014), 226–247
of religious exceptions when positive neutral law based on a moral rationale conflicts
with the right to religion. A new German law on the circumcision of male children is
a prime example of an attempt to solve such a conflict.91
The starting point of any regulation of the right to religion is that the political com-
munity is not a religious community, and that citizens were born without any religion,
just as the unmarried are the starting-point for the right to marriage, and those not
working, for the right to work. Each person was born without religion, without work,
without marriage. Each human being is a potential religious being, a potential worker,
and a potential spouse. Of course, there are differences: Work is discretionary, but
Cf. the new wording of Bürgerliches Gesetzbuch [BGB] [Civil Code], Aug. 18, 1896, Reichsgesetzblatt
91
[RGBl.] 195, as amended § 1631(d), sentence 2, on circumcision of male child (“Beschneidung des män-
nlichen Kindes”):
In the first six months after the birth of the child persons delegated for that purpose by a
religious body too may perform circumcisions according to paragraph 1, if they are especially
trained for that purpose and, without being physicians, are comparatively qualified for per-
forming circumcisions.
See further Rafael Domingo, The Metalegal God, 61(2) Ecclesiastical L.J. (forthcoming April 2014).
92
A right to religious and moral freedom? 245
implied a rejection of religion as such, but just a reconsideration of its position in pub-
lic life, and particularly in relation to legal systems.93 The fourth and current process
of secularization can certainly clarify religion’s proper implications for legal systems
to help us establish a more balanced system that protects believers and non-believers
but never entails a rejection of religion in private and public life. In some ways, we can
say that secularization presupposes the very idea of religion: without religion there
is no secularization because religion is the object that secularization separates from
politics. When secularization tries to destroy religion, secularization destroys itself.
Secularization is always a movement from religion. So without religion there is no sec-
93
For further information about the process of secularization of Roman law, and the original strong
relation between law and religion, see Max Kaser, Das altrömische ius. Studien zur Rechtsvorstellung und
Rechtsgeschichte der Römer 22–34, 301–360 (1940); 1 Max Kaser, Das römische Privatrecht 27–29
(2d ed. 1971); Franz Wieacker, Römische Rechtsgeschichte I. Quellenkunde, Rechtsbildung, Jurisrudenz und
Rechtsliteratur 310–340 (1988). For the other process of secularization, see Harold J. Berman, Law
and Revolution. I. The Formation of the Western Legal Tradition (1983) and Harold J. Berman, Law and
Revolution. II. The Impact of the Protestant Reformations on the Western Legal Tradition (2003).
94
See Benedict XVI, Religious Freedom: The Path to Peace (Jan. 1, 2011), available at http://www.vati-
can.va/holy_father/benedict_xvi/messages/peace/documents/hf_ben-xvi_mes_20101208_
xliv-world-day-peace_en.html.
246 I•CON 12 (2014), 226–247
Freedom of conscience is the freedom required for any moral human being (homo
moralis). It is the result of linking freedom and conscience, as a human “laboratory”
for making moral decisions. Freedom of conscience legally preserves the idea of moral
obligation. By recognizing that the human person can be bound by himself, i.e., by
virtue of his own dignity, and not just by the command of sovereignty, legal systems
are implicitly recognizing the principle of personal accountability, which is key for the
development of any legal system. They are also implicitly recognizing the priority of
dignity over sovereignty, the primacy of the particular over the universal, and the cen-
trality of the person in the political community.95
7. Conclusion
Religion and morality cannot be treated the same by legal systems, or be protected by
the same legal framework. They are different ontological realities which affect legal
systems in different ways. Religion calls for communities and institutions of voluntary
membership, not the compulsory membership of political communities. Political com-
munities are not religious communities. So they can be neutral on religious issues and
protect the right to religious freedom. Political communities, however, are by nature
moral communities; they cannot be neutral on moral issues. Therefore, moral freedom
and religious freedom require a different treatment in secular legal systems. They can-
not be treated as a single right.
Citizens have the right to live according to their religions and beliefs in a non-reli-
gious community such as the political community, but they cannot have the right
95
About the priority of the person, see John Finnis, The Priority of the Person Revisited, 58 Am. J. Jurisprudence
45 (2013).
96
More about the idea of transcendent law, see Remi Brague, The Law of God. The Philosophical History of an
Idea (2007).
97
Isaiah Berlin, Four Essays on Liberty 125 (1969).
A right to religious and moral freedom? 247
to practice their own morality inside a community that is by definition moral, as the
political community is. So there is no right to live and practice one’s morality, as Perry
argues, but just a right to freedom of conscience when there is a legal conflict between
a moral rule of the legal system and an individual moral obligation. Exemptions are
not against equality. They are an expression of the principle of the priority of the per-
son that should illuminate the legal systems of all democratic political communities.
However, they should work in a different way when they deal with moral issues than
when they deal with religious issues. This is just a consequence of the fact that the
political community is moral and non-religious by definition.