Religious Freedom Deserves a Right of Its Own

March 12, 2024

By Nathan Berkeley

RFI Senior Associate Scholar Daniel Philpott wrote an excellent article published recently in Public Discourse titled, “Religious Freedom Deserves a Right of Its Own.” Philpott, who is Professor of Political Science at the University of Notre Dame, argues that “Religion is a basic good for all human beings everywhere, therefore religious freedom is a universal human right. It is neither unfair nor parochial, but a requirement of justice.”

Philpott opens by observing:

While the human right of religious freedom is ever crushed in China, Iran, Nigeria, and Uzbekistan and is newly curtailed in developed democracies, it has come to face an additional, more conceptual threat over the past quarter century in developed democracies. There, intellectuals are calling into question whether religious freedom merits a right of its own. This is a worrisome development for religious freedom. Its support everywhere depends on a consensus among scholars in universities and law schools, who train lawyers, civil servants, activists, and politicians, who in turn uphold the architecture of laws and policies that give this right legal force and moral legitimacy. 

This “conceptual threat” is coming from two distinct camps. First, a group of liberal scholars of jurisprudence are arguing “that religion does not merit ‘special constitutional status’…They do not deny the value of religion, but they argue that it can be protected as simply one instance of a right to speech, conscience, or assembly.” Second, a cadre of postmodern thinkers are challenging religious freedom’s universality. Philpott locates this latter group within “the tradition of Friedrich Nietzsche and Michel Foucault, who think that religious freedom is a product of social power in a particular time and place.”

At this point, Philpott makes an essential point:

Behind both schools’ objections to religious freedom lies a common conception of religion: that it is a set of beliefs, commitments, worldviews, identities, and cognitive statements…the liberals ask why religious beliefs, rather than philosophical, ideological, or other spiritual beliefs, merit a right of their own, and postmoderns ask why such a modern and western phenomenon is promoted as a global human right.

Philpott rebuts these fundamental objections by recovering a deeper vision of religion that more fully aligns with reality. “[R]eligion is a distinct category of human activity that is intrinsically, irreducibly valuable,” he writes. “This definition of religion, revolving around practices, identifies a distinctive phenomenon.” He continues:

There are types of [religion], but [religion] is not a type of a broader category such as belief. Religion is distinguishable from rock concerts, encounters in nature, traditions of wisdom, forms of spirituality that involve no superhuman entity, and nonreligious forms of pacifism. It differs also from nationalism, which may take religious forms, but is directed not to a superhuman power but rather to a community of people united by language and historyTo say that religion is a universal human good is not to say that all religions affirm the same superhuman power, contain the same teachings, or possess the same degree of truth. Rather, it is to say that religion is a natural human phenomenon.

In light of this vision of religion centered on practices in relation to a superhuman power, why shouldn’t various aspects of a society’s law and culture be used to compel adherence to true religion? Philpott responds, “True, some religions contain more precepts than others, and in virtually every religion performing certain precepts outwardly is required. All religions, though, teach that members ought to perform precepts with inner sincerity [emphasis added].”

At this point, Philpott has assembled the conceptual resources to bring his defense of religious freedom to completion:

Any forcing of religion, then, any imposition of costs—death, bodily harm, imprisonment, loss of economic livelihood or opportunity, or any other—upon a person or community for religious practice or belief would fail to respect this interiority. It would deny a person his capacity to sincerely and genuinely practice religion, and thereby deny his dignity.

Debates persist about expanding religious freedom to “Freedom of Religion or Belief” or FoRB — which has long been the more common formulation in Europe and elsewhere — and what exactly is captured by adding “belief.” And then there are debates about whether there is a hierarchy of human rights, what constitutes a human right in the first place, and how to ground them, which have unfolded in the United States in recent years but have also been evident at the UN, in Europe, and beyond. Philpott offers an account here of religious freedom that enters directly, and convincingly, into the heart of these debates.

Read Philpott’s full essay: “Religious Freedom Deserves a Right of Its Own.”

Nathan A. Berkeley is RFI’s Communications Director and Research Coordinator.