Short Paper: Concerning the Question of "Religion"

The use of “religion” as a distinct category of contemporary human rights instruments has raised several significant objections, concerning the nature of religious rights and the possibility for religion to be incorporated into the pre-existing legal structures protecting the rights guaranteed to every person.

            Sullivan disputes the granting of specific legal protection to religious beliefs, sects, and practices for the purpose of defending religious rights, for she claims that this arrangement demands a formal and ultimately exclusive definition of the concept of religion. In order to protect religious rights, the US government in the past has drawn a clear line between institutionalized religion, and informal cultural practices. This boundary—which Sullivan considers a tenuous divide—separates “high religion” (that which is mandated by religious law and outlined in religious texts) from “low religion” (cultural practices that develop without legal backing), and “lawful” practices from “unlawful” ones, as interpreted under legal rights instruments (Sullivan 146). The author responds to this division by referencing the Warner v. Boca Raton case (2004), in which the plaintiffs’ religious activities, rooted not in “high religion” but their family traditions, were dismissed by the court as a matter of personal preference. As Sullivan suggests, the court’s continuing failure to acknowledge the “lived,” transient, and local nature which characterizes the majority of religious practices in the US led to its denying legal protection to a noninstitutionalized but completely valid tradition, violating the constitutional guarantees of religious equality and freedom (143). Even if the government attempted to expand the definition of religion to include “all self-described religiously motivated behavior,” this would lead to the preference of those who claim to be so-motivated over professed nonbelievers, shifting but not eliminating religion-based social distinctions (151). As the specific legal protection of religious rights leads to discriminatory classification on religious grounds and the subversion of the fundamental rights to religious equality and freedom, Sullivan urges for the removal of religion as a distinct category of human rights.

            Gellman and Friedman similarly oppose the independent establishment of religious rights by raising concerns that the protection of these rights as a separate category in legal instruments does not prevent government alignment with a single religion. The authors provide countless cases in which government religious expression created a “marginalization effect” toward minorities in the US, through “the unspoken message to the majority Christians that they were the real Americans” (Gellman,Friedman 671). Gellman and Friedman’s proposal that the Equal Protection Clause, as the main tool used in most cases of human rights violations, be applied to religious rights clarifies their belief that this separation of religious rights from other rights is responsible for legal and administrative problems associated with religious rights law. They offer the aforementioned solution as a means of not only categorizing religious rights within the broader framework of rights, but also eliminating the occurrence of minority exclusion due to government religious expression.

            While the above authors raise two significant objections to the current establishment of religion as a distinct category of religious instruments, I will now focus on a few assumptions they make which undermine the strength of their arguments. Sullivan bases her concern as to the inherently discriminatory nature of religious rights laws on the belief that religious rights instruments encompass religion from a holistic standpoint. Gellman and Friedman, on the other hand, treat as a fact the parallelism between religious rights and other basic rights, and cite a limited number of factors as proof of the insufficiency of relevant legislation.

            In her paper, Sullivan takes note of a unique quality of religion, stating that “to be religious is...to live without a certain amount of freedom...not to be free, but to be faithful” (Sullivan 156). This sometimes antagonistic relationship between religion and freedom sets religious rights apart from fundamental human rights such as the right of freedom of speech, movement, or association. Religious rights can also be distinguished from rights concerning race, gender, economic and ethnic background due to the element of choice contained within religion (choosing which religion, or none, to follow). Because of this difference, the fundamental human rights of freedom of belief and freedom to change one’s religion (UDHR Article 18) are only protected under the jurisdiction of religious rights. Therefore, it is imperative that these rights are acknowledged as universal rights, and placed in a separate category tailored to the unique characteristics of religion.

            Under the framework of human rights, religious rights do not necessarily encompass the entirety of the concept of religion. In fact, they encircle only the social elements of religion which affect the society at large or the interactions between and among adherents and nonadherents of a particular faith. The narrow scope and society-based focus of religious rights are characteristics shared by all human rights; this can be seen in international human rights instruments such as the Universal Declaration of Human Rights and the Declaration on Intolerance and Discrimination based on Religion, which make mention of the “spirit of brotherhood” that should exist between all persons and the freedom to “manifest [one’s] religion… individually or in community with others,” respectively. It is important to note that the individual religious rights referenced in the latter document do not contradict the observed social quality of human rights, as they imply the rights of an individual facing the community. Due to their social focus, all human rights necessarily possess limitations intended to prevent, for instance, disruption of public health, order, and morals (UDHR Article 27). The restrictions to the definition of religion that Sullivan references should be regarded as necessary aspects of human rights and their societal focus, and not justify the removal of these rights from a human rights context.

            If it is accepted that religious rights address religion’s social aspects, it can be deduced that these rights are influenced by the societal environment and the beliefs that a community holds at a particular time. Due to the changeability of these elements, it is difficult to analyze cases of religious rights from the past as Gellman and Friedman have done, for this is to observe them out of their social context. The authors refer to the contrasting opinions in two similar court cases addressing religious expression rights (McCreary and Van Orden) as proof that religious rights are “in flux” (Gellman,Friedman 665). Yet this “fluctuation” should not be seen as a sign of the ineffectiveness of religious rights legislation to comprehensively address this category of human rights, as Gellman and Friedman suggest, nor as an indication of the nebulous quality of religious rights, as Sullivan suggests. Instead, the Supreme Court justices cited the differing social context and situation surrounding each case to justify their final decisions, verifying the close connection between this category of rights and the societal ambiance. The dissimilarity of religious rights from basic rights and rights regarding gender, race, et cetera, invalidates the proposal to place religious rights within other rights categories, and illustrates the need for the grouping of these rights under a third class of human rights.

                Religious rights comprehensively address the social aspect of religion and are contingent on the contemporary social environment, as befit formal human rights. Due to their dissimilarity to other rights categories and importance to the rights discussion, religious rights must continue to be enshrined as one of the most important categories in legal rights instruments.