CESNUR - center for studies on new religions


organized by CESNUR, Center for Religious Studies and Research at Vilnius University, and New Religions Research and Information Center
Vilnius, Lithuania, April 9-12 2003  

Freedom of Religion, Freedom From Religion, and Respect for Religious Sentiments

by Gidon Sapir (Faculty of Law, Bar-Ilan University, Israel) and Daniel Statman (Dept. of Philosophy, Haifa University, Israel)
A paper presented at the CESNUR 2003 Conference, Vilnius, Lithuania. Preliminary version. Do not reproduce or quote without the consent of the author.


II. Freedom of Religion

A. The basis for freedom of religion

b. What is protected by freedom of religion?

c. Where is freedom of religion headed?

III. Freedom From Religion

a. From freedom of religion to freedom from religion

b. Other rationales for freedom from religion

IV. Freedom of Religion and Freedom from Offense to Religious Feelings

V. Applications

a. Vehicular traffic on the Sabbath in an ultra-Orthodox Jewish neighborhood

b. Screening of television programs on the Sabbath in which Orthodox Jews play an active role

VI. Summary and Conclusions


I. Introduction

The attitude of liberal democracies towards religion and its adherents is a complex one. Historically speaking, such democracies developed in countries in which religion once held a central position and whose cultures remained replete with religious symbols and institutions generations after religion had already paled. In this sense, religion is more than just one of many minority cultures; it has a special status. On the other hand, the idea of equality would seem to demand that religion not be awarded any special status within the State, especially in light of the fact that the religious world-view is something of a contrast to the emphasis that a secular liberal democracy places on individual autonomy. The principal concepts that are meant to guide a liberal State in molding its attitude towards religion are freedom of religion and freedom from religion, but these concepts only serve to reflect the aforementioned ambivalent attitude. For on one hand, the right to freedom of religion would seem to bestow on religion a special kind of protection, beyond that extended to other groups or other human activities. On the other hand, the right to freedom from religion would seem to place limitations on what may be awarded to religion if the right of non-religious people to protection from religion is to be preserved.

Claims about violation of freedom of religion are not the only way in which religious individuals or groups attempt to protect their interests. A different track is to claim offense to religious feelings.[1] These tracks are similar, although there are also important differences between them.


In this article we set forth the theoretical basis for an understanding of these three concepts and their interrelationships. In section II we try to determine why – if at all – freedom of religion is worthy of special protection, and what such protection includes. We argue that within a liberal world-view, it is impossible to base the special status of freedom of religion upon assumptions concerning the truth of religious beliefs, or upon assumptions concerning the special contribution that religion makes to the individual or to society. If freedom of religion is worthy of special protection, its justification must be based upon rights and freedoms that are recognized by the liberal view and that are extended equally to all citizens. However, the moment that such a justification is adopted, it becomes difficult to halt the reduction of the freedom of religion to other rights – principally to the freedom of conscience and the right to culture. Under the umbrella of these two rights religion may earn a fair degree of protection, but at a certain price: the more the religious claim takes care to keep itself within these confines, the more its claim to uniqueness is undermined. This ultimately threatens to destroy the ground upon which it stands.


This bind helps us to understand the current trend in the U.S., Canada and other countries, which in effect refuses to accept the idea that religion is worthy of special protection, and treats it within the framework of the regular freedoms and rights to which any individual and body in a liberal State is entitled. The constitutional documents of these countries do admittedly still award a status of honor to freedom of religion, but its relevance is gradually being lost.


The First Amendment protects the free exercise of religion, and according to the generally accepted interpretation this should include not only the freedom to act in accordance with religion, but also the freedom to refrain from doing so. Contrary to this prevailing view, we contend in section III that freedom of religion does not include freedom from religion. To our view, the (constitutional) positive right to adopt a certain religion and to act in accordance with it does not automatically entail the negative right not to adopt any religion. A conclusion of this type would be valid only if the sole basis for freedom of religion was personal autonomy, but as we explain, additional justifications are needed in order to anchor rights in general, and the right to freedom of religion in particular. Our claim is that these additional justifications do not apply equally to freedom of religion and freedom from religion.


If we are correct in denying the a priori symmetry between freedom of and freedom from religion, then the validity and scope of the right to freedom from religion needs to be evaluated separately. We dedicate the rest of section III to such an evaluation. We conclude that the only instances in which a certain symmetry exists between freedom of and freedom from religion – and the only instances where the claim for freedom from religion is well established - is when secular people are coerced to participate actively in religious ceremonies, together with the assumption that these freedoms are understood within the framework of freedom of conscience. Only in such cases can we reasonably talk about offense to the conscience of secular people that is caused as a result of the restriction of their freedom.


In section IV we turn our attention to the relationship between the protection of freedom of religion and the protection of religious feelings. We argue that the principal difference between a complaint of violation of freedom of religion and a complaint of offense to religious feelings is that the former in no way relies upon emotional pain, especially not upon the feelings of insult and humiliation that characterize instances of hurt feelings. At the same time, we show that there are significant points of contact between these concepts, which explain why it is not always easy to distinguish between them.


Some twenty years ago, a legal scholar claimed that constitutional law concerning religion was in “significant disarray”.[2] Two years later it was declared to be in a “mess”.[3] Following a review of these estimations and the disorder they described, Mark Tushnet concluded that “contemporary constitutional law just does not know how to handle problems of religion”.[4] It is our hope that the present article will contribute towards ordering some of this "mess" and achieving some clarity in the constitutional theory of religion.


II. Freedom of Religion


A liberal regime, by definition, respects the freedoms of its citizens; i.e., it seeks to minimize as far as possible its limitations on the lifestyles and forms of behavior that they choose for themselves. But together with this general policy of avoiding violation of freedom, the liberal tradition has recognized the special importance of specific freedoms, such as freedom of occupation, freedom of expression, and freedom of religion. The basis for this recognition has to do with the value of the protected activities, for the individual or for society, and their vulnerability to attempts to restrict them. Concerning all of these freedoms, the first question that arises, therefore, is what exactly the value is that we are attempting to protect, or why this value is especially vulnerable. After clarifying this question, we must also clarify – with regard to each individual right – what degree of protection should be awarded to it (or to such activity as is protected within its framework). We shall address each of these questions in turn.


A.  The basis for freedom of religion

Considering the fact that all liberal legal systems recognize the importance of freedom of religion,[5] the basis for it is supposedly the special value of religion, or of religious life (for the individual or for society), and its vulnerability to actions of the regime that threaten to harm or weaken it. In the framework of liberal thought, the special value here must reflect not the point of view of the religious people – for whom it is clear that religion has special value – but rather the perspective of liberal justifications. Even the most enthusiastic supporters of freedom of religion cannot base their demand for a special status to be awarded to this freedom on the actual truth (to their view) of religious claims, or on the claim that religion itself has special importance. In this regard, freedom of religion is similar to other freedoms: freedom of expression, for example, likewise makes no assumption as to the inherent value of expression itself; rather, it assumes that protection of expression is necessary in order to protect autonomy, the promotion of human knowledge, or some other such value.


Concerning vulnerability, it is important to remember that the primary motivation for the anchoring of freedom of religion as a fundamental right is related to the blood-drenched European history of persecutions and attempts to convert by force – or to actually exterminate – individuals or groups that refused to subscribe to the “true religion”, or that interpreted it in their own way. In the West there is no longer any fear of this kind of persecution, but we shall nevertheless posit later on that part of the rationale for freedom of religion assumes a certain version of the idea of vulnerability.


There are four kinds of justifications for the special protection extended to freedom of religion. According to the first, violation of freedom of religion has a negative effect – especially morally – on society as a whole. The second claims that violation of freedom of religion affects the happiness of religious individuals as well as harming one of the central resources of the State to increase the happiness of its members. The third kind posits that violation of freedom of religion represents a severe blow to the conscience or integrity of the religions individual. And according to the fourth, such violation weakens religious culture. The distinction between these justifications is not always clear, and there is some overlap between them; nevertheless, it is useful in analyzing the issue at hand. It should be noted that none of them assume, for the purposes of their claim, the truth of the religious world-view, and in this sense we address only non-religious arguments in favor of freedom of religion.


According to the first kind of claim, religion makes a critical contribution to society. It has the ability to serve as a counterweight to the power of the State, since independent voluntary bodies have greater power than individual citizens do to limit political power. In the modern State, religion remains one of the last remaining bodies that are able to fulfill this function, so vital to the democratic play of checks and balances.[6]


An additional contribution made by religion, it is claimed, concerns its moral inspiration,[7] as confirmed by empirical data on the relationship between religious belief and social and voluntary activity. A study conducted by Bibby in the U.S. and Canada showed that the chances that people who visited church regularly would invest time and money in social voluntary activities were double the chances of non-religious people doing so. Its general conclusion was that “religious groups appear to be a major source of interpersonal values” and it expressed doubt as to the ability of non-religious sources to be effective to the same degree in promoting civility and spirituality.[8] This moral influence of religion may also serve as a source of inspiration for society as a whole. If this claim is correct then religious groups are a kind of social and moral resource, and it is in the State’s interest to preserve and develop them.[9] Needless to say, this claim does not assume the truth of religious beliefs; beliefs may be beneficial or harmful from a social point of view regardless of their truth value. It is likewise clear that this is no justification for the coercion of non-religious people to lead a religious lifestyle or to hold religious beliefs in order to increase this resource, for such coercion stands in direct opposition to liberalism. What the argument is supposed to justify is the special protection extended to those who happen to be religious, and this – as explained – on the basis of their social-moral contribution.


This line of reasoning is not particularly prevalent, to say the least, despite the conclusions of Bibby and others. This is due mainly to the concern that even if these studies are correct, they present only part of the picture of the relationship between religious adherence and social ethics. Although religion has a positive influence in certain areas and in certain contexts, it also has negative influences, and these – the danger of fundamentalism, for example – would seem at the very least to balance its positive influence.[10] Hence, the answer to the question, “Does a liberal society have any special reason to want religions to flourish within it?”, cannot be unequivocal, and the extension of special protection to freedom of religion cannot be based upon it.[11] We therefore maintain that, in view of the current situation of research concerning the relationship between religious belief and morality, the above justification for freedom of religion should be rejected, until such time as it can be convincingly proved that the social and moral advantages of religion outweigh its disadvantages, and that it does offer society some special contribution.[12] If that can be proved then this justification for freedom of religion should not be dismissed.[13]


While the first justification focused on the contribution – principally moral – made by religion to society as a whole, the second addresses what religion offers its adherents. The general idea is that by virtue of various characteristics of religion, the well-being of believers is generally on a higher level than that of non-believers. A positive correlation between religious belief and psychological well-being has been demonstrated in ongoing studies of Christians, and was recently demonstrated with regard to Jews as well.[14] If enhancing psychological well-being is at least one of the State’s objectives, then the State has special reason to avoid harming religion so as not to weaken one of the strongest resources for the happiness of its citizens.


This claim too, like its predecessor, can be countered with the response that despite the advantages of religion for the psychological well-being of its adherents, its more general results – such as, for example, prejudices, authoritarianism, discrimination against women, etc. – are detrimental. Moreover, from a liberal point of view, religion may be perceived as directing human beings away from the liberal ideals of self-direction, critical thinking, and personal responsibility. These deficiencies of religion will not lead the liberal to try and restrict the freedom of believers to live in accordance with their beliefs, but they may well provide a reason to refuse to extend to them any special protection.


Of the remaining two justifications for freedom of religion, the first – based on the importance of freedom of conscience – is the most prevalent. The term “conscience” here refers to a person’s innermost normative beliefs; those that constitute one’s personal identity. As Nicholas Dent explains in the entry “conscience” in the Routledge Encyclopedia of Philosophy, there are different aspects to this concept, including “[t]hose fundamental moral convictions by keeping to which they retain a sense of their moral integrity and decency as people. In this sense something is ‘a matter of conscience’, or raises ‘questions of conscience’, if it touches on such central personal principles.”[15]


The use that Dent and others make of the concept of morality here (moral convictions) may be misleading, for they refer not necessarily to a particular set of moral rules, but rather to personal beliefs whose content may differ from person to person. What one person’s conscience may direct him to do may be what another person’s conscience will tell him not to do. A favorite example in this regard is how Mark Twain’s Huckleberry Finn suffers pangs of conscience when he considers allowing Jim, the escaped slave, to remain on the run, for according to his deepest consciousness and the education that he has received, this is forbidden.[16] The concept of conscience is therefore individualistic and subjective in nature, and our understanding of it historically related to the use made of this concept by Martin Luther and his followers. Acting according to one’s conscience means acting according to the dictates of one’s heart, rather than in accordance with the instructions of religious leaders or politicians. Luther himself placed conscience above law, declaring: “I lift my voice simply on behalf of liberty and conscience, and I confidently cry: No law, whether of men or of angels, may rightfully be imposed upon Christians without their consent, for we are free of all laws.”[17]


This represents a profoundly subversive and antinomist understanding of the concept of conscience, presenting a threat to the existing religious, social and political order.[18] In a recently published study, Andrew proposes that the Protestant conscience stands in tension with the intellectual ideal of the Enlightenment, and that modernity is the result of the tension between these two ideals.[19]


Why is it so important that a person should act in accordance with his conscience, in accordance with what his heart tells him? There are two main answers to this question, one religious and the other non-religious. The religious answer, evident in the thinking of Luther and other Protestant philosophers, teaches that the Divine will is revealed to man through human conscience,[20] such that when man cleaves honestly and uprightly to his conscience he exposes what God wants of him. This is the well-known response attributed to Luther when called upon by the Diet of Worms to abandon his misguided conscience: “My conscience is subordinate to the word of God. Here I stand and I cannot act otherwise.”[21] This answer is not intelligible to secular-liberal thinking (or, for that matter, to religious philosophies that do not assume that the way to reveal the Divine will is through human conscience), and its supporters are therefore faced with the question in all its starkness: why respect the conscience of someone who holds misguided moral beliefs? The standard answer to this is that coercing people to act against their profound normative beliefs presents a severe threat to their integrity[22] and causes them strong feelings of self-alienation and loss of identity;[23] therefore, it should be avoided as far as possible.[24] It is this sort of approach that stands at the foundation of the liberal demand to demonstrate tolerance for certain legal dissenters, in instances where some law severely violates their conscience. As Haim Ganz explains, the reason that such violation must be taken into consideration is not the assumption that the inclinations of the conscience are necessarily correct, but rather the very fact that the conscience is inclined in that way: “[F]reedom of conscience means the freedom to act on the dictates of conscience for the sole reason that they are given by the conscience, regardless of their justness or of the correctness of their contents."[25]


If we accept that conscience is worthy of protection regardless of the content of its beliefs, it is clear why, from a liberal point of view, freedom of religion should be protected. Since religious beliefs clearly belong to the category of profound normative beliefs that establish personal identity, forcing people to act contrary to their religious belief means forcing them to act contrary to their conscience and contrary to the values that constitute a central part of their world.[26] Therefore – according to this argument – freedom of religion deserves special protection. Accordingly, freedom of conscience and freedom of religion are perceived as being so closely related that at times they are treated as a single concept: “freedom of conscience and religion”.


How can a person’s conscience be offended or violated? The answer seems simple: by coercing him to act contrary to his deeply-held principles, as explained above. But it is important to remember that here, as in many other contexts, the concept of coercion refers not to actual physical force, but rather to placing a heavy price on certain behavior, perceived by the coercer as undesirable. Forcing a person to participate in a war that contradicts the dictates of his conscience means setting a price of, let us suppose, a hundred days in prison for refusing to participate – a price that would cause some people to act contrary to their conscience and to enlist, while others might refuse and pay the price. Concerning the first group we might say that the State coerced them to act contrary to their conscience, while with regard to the second group we would have to say that the State had not respected their conscience. Just as it is possible to coerce by means of a threat of sanctions such as imprisonment (“If you fail to do X, you will suffer sanction Y”), it is likewise possible to coerce through the use of incentives or promised benefits (“If you do X, you will receive benefit Y”). Here, too, we may say that people who do not stand up to the temptation have been coerced to act contrary to the dictates of their conscience, while those who succeed in resisting have not had their conscience respected by the State. Coercion in general is a matter of degree, and this applies equally to coercion of conscience: the higher the price – in terms of either sanction or incentive – for attachment to personal principles, the greater the violation of freedom of conscience. The lower the price, the less the degree of violation – to the point where, in some instances, the claim of offense to conscience sounds artificial, for, after all, one cannot expect that commitment to one's principles will never carry any price whatsoever.[27]


The case for freedom of conscience as a basis for freedom of religion enables one to understand why religion needs protection, but it fails to explain why the violation of freedom of conscience that occurs when there is violation of freedom of religion is more disturbing – and therefore requires greater protection – than violation of freedom of conscience in other contexts.[28] A good example of this is the exemption granted in the U.S. from military service for those who oppose it for reasons pertaining to their religious beliefs and education.[29] If the basis for the religious exemption is protection of freedom of conscience, why should it be limited exclusively to those who hold religious beliefs?[30] It seems that liberal law has trouble answering these questions, and the result is a diminishing of freedom of religion to the point where it is emptied of all content, as we shall see in section IIC.


Let us now turn to the last justification for freedom of religion among the four listed above. Developed at length some years ago by Gidon Sapir, it is based on the right to culture.[31] According to this claim, religion is a clear example of an all-encompassing culture, whose protection is of great importance for the members of that culture. Two directions may be detected in the explanation of this importance: the one assumes that culture is necessary for the realization of autonomous and meaningful life;[32] the other – that culture is necessary as an expression of individual identity.[33] Either way, why does religion need special protection, within the framework of this right? The answer relates to the marginal and therefore threatened status of religions within liberal States. In Sapir’s words, “Freedom of religion is understood in this setting as a measure aimed to guarantee the survival of minority cultures that have lost in the majoritarian cultural battlefield.”[34] Obviously, a refusal to accede to requests by members of religious groups for various types of consideration and preferential treatment does not immediately destroy their culture, but in the long term it makes it difficult for that culture to develop and thrive. The right to culture is extended only to minorities and not to the majority culture, because the latter has no need for special treatment in order to develop and to pass on its message to the next generation. In the words of Halbertal and Margalit, reflecting the generally accepted position on this issue: “The State is meant to be neutral towards the majority culture”, for this culture can “by its very essence maintain a more or less homogenous environment, even without enjoying special rights”.[35]


As in the case of the justification based on freedom of conscience, here freedom of religion is not based on the special characteristics of religion, such as its metaphysical beliefs or styles of worship. It is based, rather, to the nature of religion as a culture. Like any culture, religion has great importance for those who take part in it, and like any minority culture[36] religion needs special protection in order not to be swallowed up by the majority culture. Nevertheless, this basis for freedom of religion is more immune to reduction than its predecessor was. This is because in secular liberal States, religion is the prime example of an all-encompassing culture that is threatened by the majority culture[37] and there are not many other cultures of this nature.[38] Hence it would seem that there is some logic to awarding a special status to freedom of religion, rather than sufficing with a general mention of freedom of culture.[39]


What is the relationship between freedom of religion in the sense of freedom of conscience, and freedom of religion in the sense of the right to culture? The difference would appear obvious: while conscience is clearly an individual matter, culture concerns a group. While freedom of religion understood as freedom of conscience does not exceed the bounds of the individual, freedom of religion as the right to culture is, by its very nature, meant to do so. Despite these differences between the two concepts, the similarity between them is also significant. Firstly, assuming that collectives are not the kind of entities that can have interests, we are speaking in both instances of protection of the interests of individuals. The difference relates to the nature of the interest being protected; in the case of offense to conscience, the interest is the preservation of moral integrity (“to be able to look at oneself in the mirror”), while in the case of disturbance to culture, the interest is personal autonomy or identity (in accordance with the type of theory adopted as the basis for the importance of culture).[40] It is not culture itself that we seek to protect, but rather the individuals who take part in it, and who are likely to suffer if it is weakened or undermined. If the importance of their culture to them is understood in terms of personal identity,[41] then the similarity is even more pronounced, since attacks on integrity are also sometimes formulated by way of the idea of an attack on personal identity. When people are forced to give up the lifestyle or the symbols that stand at the foundation of their personal identities, they feel self-alienation and sense a threat to their identity; these general feelings are likewise experienced by those who are forced to act contrary to the dictates of their conscience.

Secondly, protection of conscience is not altogether an individual matter. To Raz’s view, the tendency to anchor rights in the freedom of the individual ignores the fact that rights sometimes relate to collective goods,[42] which allow them to exist and bestow meaning upon them. As an example of this, Raz discusses freedom of religion:

While religious freedom was usually conceived of in terms of the interest of individuals, that interest and the ability to serve it rested in practice on the secure existence of a public good: the existence of religious communities within which people pursued the freedom that the right guaranteed them. Without the public good the right would not have had the significance it did have. Furthermore, the existence of the right to religious freedom served in fact to protect the public good.[43]


Moreover, to Waltzer’s view, a refusal to obey the law on the basis of freedom of conscience “is almost always a collective act, and it is justified by the values of the collectivity and the mutual engagements of its members.”[44] Etymologically, the word “conscience” indicates common moral knowledge, and just as this moral knowledge is acquired within a group and is common to its members, so the obligation of the person with conscience is “at the same time an obligation to the group and to its members”[45] – it is obligation towards other people, from whom or together with whom his principles were acquired. According to Waltzer, if disobedience truly rested upon individual conscience then it would always be justified, but would never happen, for “[a]n individual whose moral experiences never reached beyond “monologue” would know nothing at all about responsibility and would have none.”[46]


These considerations support an interesting connection between freedom of conscience and the right to culture: on the one hand, despite its collectivist appearance, the right to culture also has an individualistic aspect, for ultimately it protects the interests of individuals. On the other hand, despite the individualistic nature of freedom of conscience, it also has a collectivist aspect, for it is related to collective goods[47] and is exercised in close connection with and commitment to a collective. Furthermore, according to the prevalent understanding of the right to culture, there is a real overlap between the two concepts, for both rest upon the desire to protect personal identity.


This connection would seem to eradicate the distinction between the two rationales under discussion for freedom of religion, for both include at the same time both a collectivist aspect and an individualistic one, and in both – at least according to one theory – the aim is to protect violation of personal identity. If this is so then any violation of freedom of conscience is seemingly also a violation of the right to culture, and vice versa. However, such a conclusion is too simplistic. Firstly, although both rationales have both a collectivist and an individualist aspect, their emphases nevertheless differ: culture is a public concern, and therefore the test of its violation requires an examination of the social reality. Conscience, on the other hand, is the business of the individual, and therefore the way to clarify whether it has been violated requires an examination of the psychology of that individual.


Secondly, even if it is true that in both arguments the interest being protected is that of personal identity, the violation of personal identity caused by restrictions on culture is weaker and more indirect than that caused by coercion to act against one's conscience. Coercion of the latter type generally arouses strong emotional reactions in the form of guilt feelings, or pangs of conscience – which is not the case in restrictions of the former type. The violation of identity caused by forcing a religious Moslem to drink wine – a clear example of violation of conscience – is not the same as that caused by traffic driving through an Orthodox Jewish neighborhood on the Sabbath – an instance of disturbance to culture.[48] The concept of violation of integrity appears far more appropriate in the first example than it does in the second. Hence, not every disturbance of culture – even in its sense as the right to identity – is simultaneously an offense to conscience. In contrast, offense to conscience almost always represents a disturbance to culture, for it represents a direct and overt threat to the ability of the religious community to preserve its special culture.


B. What is protected by freedom of religion?

            What exactly is protected by freedom of religion, if we understand it in terms of freedom of conscience? As explained above, protection of the freedom of conscience requires that people not be coerced to act in a way that is opposed to their deepest moral convictions – coercion that would represent an attack on their integrity. Such an attack may be discerned principally in instances of active behavior, i.e., instances in which people are required to do something that goes against their conscience, as opposed to instances of omission. The reason for this is based on the special connection between action and integrity. What we do is generally more significant in the constitution of our identity (in our own eyes as well as in the eyes of others) than what we refrain from doing. In the words of Richard Norman, “The things that I have done go to make up my life, they are distinctive features of my sense of who I am. This is not normally true of omissions.”[49] From the perspective of the integrity of the agent, killing is usually more severe than allowing to die. Hence, it is not surprising to find that respect of conscience in law usually finds expression in exemptions from active actions that oppose one’s values.


Concerning omission, too, it seems that if someone else is responsible for the actual death, the sense of violation of personal identity is even more limited. In such an instance, it is easier to transfer the moral responsibility to the shoulders of that person. The idea that in cases where the responsibility may be transferred to someone else, the violation of integrity is smaller – if it exists at all – arises from Williams’s well-known example of Jim and the Indians, an example that is meant to convince us of the great importance of integrity, as opposed to the utilitarian approach. Pedro aims his gun towards twenty Indians, meaning to kill them. He offers Jim the possibility of killing just one of them, in return for which Pedro will release the other nineteen. To Williams’s mind it is absurd to say that Jim is morally obliged to accept the offer, for the action that is required – the killing of an innocent man – is directly opposed to his entire being:

It is to alienate him in a real sense from his actions and the source of his action in his own convictions… [It] is to neglect the extent to which his actions and his decisions have to be seen as the actions and decisions which flow from the projects and attitudes with which he is most closely identified. It is, thus, in the most literal sense, an attack on his integrity.[50]


If refraining from saving human life had also been a severe violation of integrity, then from Jim’s point of view refraining from killing the Indian would also fall into the category of an attack on his integrity, and Williams’s argument would fail on its own terms. But this is not the case: killing an innocent person is not the same thing, from the perspective of violation of integrity, as standing by while someone else does so.


We may employ this example in order to pursue the discussion and clarify further the distinction at hand. The most severe violation of conscience occurs when people are required to perform actions to which they are opposed with all their heart. The violation is less severe when they are prevented from doing what they believe they ought to do. It becomes almost negligible in a case where they stand by while the responsibility for the negative behavior rests with someone else. The case of Jim refraining from shooting belongs to the last category.


Let us now focus on instances of the last type, in which X claims violation of conscience caused by unacceptable behavior on the part of Y. Taking into consideration the definitions of conscience discussed above, how is it possible that Y’s actions can be considered a violation of X’s conscience? After all, as Gilbert Ryle rightly notes, “Judgments about the morality of other people’s behavior would not be called verdicts of conscience.”[51] It would seem that we can offer two answers. According to one, the violation lies not in Y’s actual negative behavior, but rather in its results, which X has a moral obligation to prevent – even if no other person is involved in causing them. Such is the case of Jim and the Indians. Considering that a person is not obliged to prevent every negative result in the world, it is only in fairly rare situations that the result is grave and the connection between X and the result is direct or immediate. According to the other answer, the violation lies in X being prevented from stopping Y from engaging in behavior that he perceives as negative. This answer preserves the idea that violation of a person’s conscience is a violation of one of his fundamental principles, but the principle involved is the obligation to prevent others from negative behavior. We cannot accept this answer, for it undermines the foundations of liberalism. If someone feels that her conscience or her identity is violated by the fact that she does not prevent others from behaving in ways that, to her view, are bad, then the only way to extend her protection is to allow her to force her opinion on others – a result that is unacceptable. Paraphrasing Hart,[52] we may say that no social order that awards any value at all to the freedom of the individual could extend the right to protection from violation of conscience in such circumstances. In light of all of the above, we may accept the pacifist’s argument that enlisting him would offend his sense of conscience, but we could not accept the claim that the enlistment of others violates his conscience. Similarly, we may accept the vegetarian’s claim that eating meat would offend her conscience, but she could not argue that the consumption of meat by others constitutes such an offense.


Let us now examine the implications of the above to understanding freedom of religion, as understood within the framework of freedom of conscience. To our view, the centrality of action in constituting personal identity – and hence in determining the degree of offense to integrity – exists in religion as well. Let us take as an example the Jewish religion. This religion draws a distinction between commands that obligate a person to perform an action – positive commandments – and commands that prohibit certain actions – negative commandments. In keeping with what we have said concerning offense to conscience in general, we may usually expect a certain difference, from the point of view of integrity, between instances in which a person is forced to violate a negative commandment (i.e., to perform a forbidden action, such as – for a Jew – eating non-kosher food) and instances in which he is prevented from fulfilling a positive commandment (such as kindling Hannukah lights). We do not deny the possible offense to conscience in instances of the latter sort, but rather wish to claim to that in general it would be somewhat weaker than the offense characterized by instances of the former type.


The other position that we presented concerning the violation of freedom of conscience caused by undesirable behavior on the part of others likewise applies to religion as well. That is to say, people cannot claim violation of their freedom of religion, in the sense of freedom of conscience, based on the fact that others behave contrary to the commandments of that religion.


In summary, if we understand violation of freedom of religion in terms of offense to the religious person’s conscience, the following normative implications become clear: firstly, the violation that has to be protected against is the coercion of a religious person to behave contrary to her religious beliefs, in action (eating non-kosher food) or in omission (refraining from kindling Hannukah lights), with the former representing a more severe violation. Secondly, freedom of religion cannot extend protection to an offense to conscience – if such exists – that stems from religious transgressions of others.


Let us now turn to examine what is protected by freedom of religion understood in the framework of the right to culture. Here we shall make use of the distinctions drawn at the conclusion of section IIA between the rationale for freedom of conscience and the rationale for the right to culture. In light of that discussion, it would seem that these rationales are different both in terms of the scope of the right that arises from them and in terms of the weight of that right in relation to conflicting interests. Let us begin with the issue of scope. Since, as we said above, the main focus of the right to culture is on social processes, while the focus of freedom of conscience concerns internal processes within the individual, the scope of what is required to constitute protection of culture is broader than what is required to constitute protection of conscience. Culture is a broad and multifaceted phenomenon, and a variety of actions of the State or of private bodies may undermine it. If the minority culture requires protection from the hegemony of the majority culture then there is far greater room for restrictions on the majority, and exemptions for the minority, than those required for the protection against offense to the conscience of individuals. For instance, it is difficult to present lack of monetary support for religious educational institutions (beyond the regular support granted by the State to all schools) as an offense to the religious conscience, but it would seem possible to present it as a violation of the right to culture, for without a strong educational system it becomes difficult for the minority to preserve its culture by molding the next generation.[53] Recognition of the right to culture of religious groups enables them to demand of the State various types of support or exemptions, in order to allow them to develop and thrive in the secular world. As Sapir emphasizes, “The losers in the cultural debate need some leeway in order to survive, and merely avoiding coerced assimilation will fall short of providing that leeway.”[54] Moreover, as we explained above, in order to substantiate a claim of violation of the right to culture it is not necessary to prove a severe violation of identity; a weaker and more indirect offense is sufficient. Hence, the scope of instances that may fall within the bounds of freedom of religion in the sense of the right to culture, is broader than that which falls within the bounds of freedom of conscience.


What about the weight of religious freedom according to each of the rationales? The fact that the damage to identity required in order to constitute an offense to conscience is more severe and direct than that required to substantiate disturbance of culture explains, as we have said, the relatively limited scope of freedom of religion in the sense of freedom of conscience, but at the same time gives it greater weight than freedom of religion understood as the right to culture. A person whose conscience is threatened needs more urgent and powerful protection than someone whose culture is undermined or weakened. Therefore, in general, freedom of religion in the sense of freedom of conscience has a better chance of overriding conflicting values than does freedom of religion understood as the right to culture.


Another reason for accepting a weak interpretation of the freedom of religion perceived as the right to culture has to do with its huge potential danger for placing restrictions on the secular population. Since the very success of the secular majority culture and its dominance in the public and media arena threaten the religious community, the temptation is great to use this right as the basis for a demand for restrictions on that culture. To the extent that the religious culture we wish to protect is weak, so it is more difficult for it to survive, and therefore – seemingly – more restrictions should be placed on the majority in order to prevent that culture from being destroyed. Therefore there is a danger of the right to culture being exploited in such a way as to allow a religious minority to place unreasonable and unfair restrictions on the majority. Hence the right can be respected only in instances where the damage to religious culture is significant and direct, and where the price of such respect for the majority is not great. Thus a law such as that forbidding the sale of pork in Israel[55] could not be justified on the basis of freedom of religion (understood as the right to culture, and certainly in the sense of freedom of conscience) and would require other justifications.


In reality, religious minorities that fear the influence of secular culture tend to enclose themselves within their own neighborhoods or areas, to develop their own educational institutions, and to limit contact with the majority culture to a minimum. Well-known examples include the Amish and ultra-Orthodox Jews. In this socio-geographical reality, the demand that the right to culture be respected generally amounts to a demand for respect for the autonomy of the religious community in its geographical boundaries, and sometimes a demand for preferential budgets – especially where education is involved. In such a situation of self-isolation (to some or other extent), there is usually no justification for restricting, in the name of the right to culture of the religious community, the secular majority within its own area of residence and activity, which the religious community in any case tries to avoid.[56]


C. Where is freedom of religion headed?

            In “Hurting Religious Feelings”,[57] it was argued that awarding special protection to the feelings of religious people in comparison with the feelings of others is problematic from a liberal and egalitarian point of view. Historically speaking, it has been suggested that this special protection is a residue of a period when religion enjoyed a privileged status, whether this was a formal status (church and State) or a status bestowed by virtue of the assumed contribution of religion to the individual and to society. The concept of offense to feelings is the latest stage in the history of the concept of blasphemy, which began with protection of religion (or God), continued via protection of society (based on the assumption that it would be harmed if religion was scorned) and ended up in the form of protection of religious feelings. In any event, with regard to the future of this concept, the writing is on the wall: it is difficult to project that in another decade or two any special protection will remain within the liberal legal system for religious feelings in comparison to the feelings of others (especially, of other minorities).[58] Even if it remains in the law books, it is reasonable to assume that it will not be applied.


In many senses, a similar situation exists with regard to freedom of religion. As emphasized at the beginning of this discussion, freedom of religion as a separate category can be justified only if religion is worthy of special protection. But the arguments that supposedly testify to this in liberal thinking are not convincing.[59] If we understand freedom of religion in terms of freedom of conscience, it is unclear why there is any need for a separate and independent category of freedom of religion in addition to that of freedom of conscience. The same applies to the right to culture: if freedom of religion is understood in terms of this right, why is that not sufficient; why must freedom of religion be added to it? At stake here is more than just conceptual economy; we are faced with a normative problem, for awarding freedom of religion a separate status gives a religious conscientious claimant an advantage in court – an advantage that does not sit well with the principle of equality. If the law is concerned for the conscience of all people, if it respects all cultures, then it cannot award the religious conscience or religious culture a special status.


Steven Smith demonstrates nicely how the non-religious rationales for freedom of religion become trapped in their own internal tension, which destroys the ground upon which they stand. As explained at the beginning of section IIA, if freedom of religion is not anchored in assumptions as to the truth of the religious view, it must be anchored in the general assumptions of secular-liberal law. But the moment we base freedom of religion upon these assumptions, the special status of religion comes into question, for the same assumptions also anchor the freedom of activities and institutions that are not religious. “The double strategy” (as Smith terms it) for the justification of freedom of religion, which as a first stage places religion on the same level as non-religious human activities and institutions and then, as a second stage, attempts to isolate it from them, “acts to nullify the force of the non-religious rationales”.[60]


In our view, there is no way of avoiding this tension and the result that it entails – i.e., the relinquishing of freedom of religion as an independent category. Given that religious considerations cannot be used to establish this category, we are left only with non-religious rationales, but these necessarily lead to the tension described by Smith. The idea of equality, so central to modern political and legal thought, cannot tolerate the possibility that of two activities protected by the same rationale, one is awarded a more preferential status. Therefore, whether we understand freedom of religion as a branch of freedom of conscience or as a branch of the right to culture, there is no justification for its special status within the framework of these rights.


In light of the difficulties involved in justifying freedom of religion, it is not surprising that court rulings in the last few decades in liberal countries tend consistently towards a limiting of the protection encompassed by this concept, to the point of emptying it of all content. The weakness of religions in these countries in their requests of the court for exemptions or preferential treatment is highlighted as against their strong position in the past. The U.S. presents a good example of this change in the status of religion. As Conkle explains at length, to the Founding Fathers – as well as many subsequent generations of Americans – it was clear that religion (or, more precisely, Christianity) should play a unique role in the molding of the life and character of the American nation. In 1892 the Supreme Court ruled unequivocally that “This is a Christian nation”,[61] and forty years later, in 1931, it confirmed this again, stating, “We are a Christian people”.[62] This self-perception had far-reaching implications concerning the court’s attitude towards laws and norms of a religious nature.[63] Christian prayers in public schools, for example, were perceived as lawful until the beginning of the 1960’s.[64] This preferential treatment of religion echoes on in the Yoder case,[65] but did not prevail for long. The Smith case of 1990[66] expressed a different approach, which has since become more dominant, greatly restricting freedom of religion. To Carter’s view, the Smith ruling marks the direction in which the current interpretation of the constitutional demand for the free exercise of religion is going. It is moving towards a world in which citizens who adopt religious customs that do not fit in with the official policy of the State may expect restrictions to be enforced by the State, which will be able to pressure them to change such customs without any fear of judicial intervention.


An analysis of the Smith affair, as well as other subsequent rulings, leads Conkle to the conclusion that “the assumption that religion is distinct and distinctly important has not yet been abandoned, but it has been placed in serious question."[67] Carter similarly argues that the interpretation in the last few decades expresses a reduction of the protection of religion to regular protections within the framework of freedom of expression, freedom of association, and other freedoms, and an actual rejection of the idea that religion has a special status.[68] Some welcome this reduction[69] while others deplore it,[70] but no-one disagrees that such a trend exists in current U.S. rulings and jurisprudence. A similar trend may be detected in other countries as well, but the scope of this article does not allow us to address them.[71]


Despite all of the above, it is reasonable to assume that freedom of religion will continue to serve as a central concept in liberal countries, in constitutional debates about the status of religion within the State. It is our contention that freedom of religion should be interpreted as being based not upon the truth of religion, nor upon its special contribution to society, but rather on two non-religious rationales: freedom of conscience and the right to culture. Most of what is usually included within the framework of freedom of religion will find its place within one of these two rationales (if not both), and whatever does not find its place there is not worthy, from a liberal and egalitarian point of view, of special protection.


III. Freedom From Religion

A. From freedom of religion to freedom from religion

            Daphna Barak-Erez and Ron Shapira demonstrated some years ago how claims concerning symmetric rights are prevalent in legal debates, and why such claims are problematic.[72] They illustrate their claim making use of the circumstances of the Nachmani case, which was brought before the Supreme Court in Israel. In this case the court was required to decide the fate of fertilized eggs of a couple that had separated following the fertilization, with the wife unable to produce any further eggs following a hysterectomy. Some of the Justices maintained that the wife's right to parenthood was equal to the husband’s right not to be a parent[73]. Against this view Barak-Erez and Shapira argued, rightly, that the justification for the right to parenthood is not based only on the autonomous nature of the decision to become a parent (which is equivalent, in this regard, to the autonomous decision not to become a parent), but rather on the profound human interest in parenthood and the significance of parenthood for human beings. More generally, if all we wanted to protect was the autonomous actions of people, regardless of their content, we would not speak of specific rights – association, movement, speech, etc. Recognition of the validity of such rights teaches that there is something in the content of these activities, and in their relationship with the good of the individual or of society, that justifies special protection, and there is no basis to think, a priori, that the reasons for the importance of these activities also explain the importance – and therefore the worthiness of protection – of refraining from them. In other words, there is no basis to think that the reasons underlying the right to X – reasons related to the special character of X – also underlie the right to non-X, and clearly there is no reason to think, a priori, that the right to X has the same weight as the right to non-X (if such a right exists at all).


The same applies to the concept of freedom of religion. There is no basis to think a priori that freedom of religion includes or entails freedom from religion. As explained at the outset, the basis for freedom of religion, like other freedoms, is not based solely on the importance of personal autonomy, but rather on unique characteristics of religion, pertaining to the individual or to society. Since the relevant justifications are related to the nature of religion, we cannot assume in advance that they will also apply to protection from it, and therefore we cannot assume in advance that they entail freedom from religion.


Our position here is opposed to that taken by many scholars and Justices in the U.S. with regard to interpretation of the First Amendment. The Amendment protects the free exercise of religion, and according to the generally accepted interpretation this should include not only the freedom to act in accordance with religion, but also the freedom to refrain from doing so.[74] Kathleen Sullivan presents this line of thought as follows:


The right to free exercise of religion implies the right to free exercise of non-religion. Just as Caesar may not command one to transgress God’s will, he may not command one to obey it. To do either is to run afoul of free exercise. As the Court put it in Wallace v Jaffree, “the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.” The “conscience of the infidel [or] the atheist” is as protected as any Christian’s… [T]he affirmative right to practice a specific religion implies the negative right to practice none.[75]


But to our view, and further to what was said above, the positive right to adopt a certain religion and to act in accordance with it does not automatically entail the negative right not to adopt any religion. A conclusion of this type would be valid only if the sole basis for freedom of religion was personal autonomy, but as we explained above, additional justifications are needed in order to anchor rights in general, and the right to freedom of religion in particular. These additional justifications do not apply equally to freedom of and freedom from religion, as we shall see forthwith. A different position in interpreting the American Constitution, similar to the position that we have presented here, is to be found in an article by Michael McConnell, who sharply criticizes the line of interpretation presented by Sullivan. To his view --


The Free Exercise Clause does not protect the freedom of self-determination (with respect to abortion, working on Sunday, or anything else); it does protect the freedom to act in accordance with the dictates of religion, as the believer understands them.[76]


Let us see, then, whether the reasons justifying freedom of religion also support freedom from religion. If the special protection for religion is based upon its unique contribution to the moral level of society, then it is clear that the secular majority should not be awarded similar protection since, in terms of this argument, it contributes less. Likewise, if the special protection for religion is based upon the contribution of religion to the welfare of the believer, then obviously such protection would not apply to the secular lifestyle. This does not mean to deny the secular population the regular protections of their freedoms, such as freedom of expression, of association and of movement. The point is that this population should not enjoy additional protection against violation of their freedom based upon the idea of freedom from religion, corresponding to the protection enjoyed by the religious minority.


Another possibility that we may reject immediately is the second proposal discussed above, according to which freedom of religion rests upon the nature of religion as a minority culture requiring protection and preferential treatment in order that it may survive in the face of the majority culture. If this is the justification for freedom of religion then clearly it does not entail also freedom from religion, for the simple reason mentioned above: that the majority culture needs no preferential treatment or special protection in order to preserve itself and to develop.[77] Again, it should be emphasized that this does not mean that the majority culture does not have interests that may likewise be harmed by the minority culture. The point is that these interests do not require special protection in the way that those of the minority culture do.[78]


We may add to this that even if the right to culture applies to the majority culture, it would be misleading to formulate this right in terms of protection against the minority culture. Let us think of a country with a Protestant majority and a minority made up of Catholics, Jews and Moslems. If we accept the idea of the right to culture, then the Catholics, Jews and Moslems in this country certainly have a right to special protection and preferential treatment, in order to allow them to develop and thrive. If the Protestants, too, have such a right, then it is the right to special protection and preferential treatment of Protestantism, not the right to protection against Catholics, Moslems or Jews. In other words, the right of a group to preserve and develop its culture is a “positive” right; it is defined in terms of the importance of that culture for the group, not in terms of the importance of protection from some or other impediments to culture, which is merely derivative. For the purpose of the current discussion: even if the secular majority in a liberal-secular country has the right to culture, it is first and foremost the right to preservation and development of secular culture, and then only secondarily the right to protection from various forces that threaten it, whether they have their source in religion or elsewhere. (It is superfluous to mention that secular culture is characterized not only by negation of religion, but also by positive elements. If this were not the case then the claim to the right to culture on the part of the secular majority would fail to get off the ground.) Thus, even if the secular majority had the right to culture – and, as mentioned, we do not subscribe to this view – it would be misleading to formulate that right in terms of freedom from religion.


If we are unable to establish symmetry between freedom of and freedom from religion on the basis of the right to culture, the only remaining path is that based upon the connection between the freedom of religion and freedom of conscience. As we have seen, violation of these freedoms takes place when people are forced to perform actions to which they are opposed with all their being; actions that, in their performing them, alienate them from themselves and undermine their integrity. Needless to say, not all restrictions on freedom cause this result, and – as we have emphasized above – we are speaking mainly of active actions that are opposed to one’s values, not passive acceptance of an undesirable situation. Typically, the actions whose performance causes an offense to conscience are, in the eyes of the victim, mala per se and not mala prohibita. For instance, under normal circumstances secular people would not sense any offense to their conscience if they were forced to travel a long and circuitous route because of a religious procession, a military parade, or a political demonstration. They may feel anger at the inconvenience and believe that there is no justification for closing the road upon which they wish to travel, but it would be strange if they presented their complaint as a violation of their conscience. The reason for this is, obviously, that there is nothing in the secular value system that is profoundly opposed to such a circuitous drive, and therefore the journey is not an attack on their integrity.[79]


When can laws arising from religious considerations violate the conscience of a secular person, in such a way as to correspond to the violation of the conscience of a religious person when the latter is forced to act contrary to religious dictates? When a secular person is forced to participate in a ceremony of clearly religious character, which at best is foreign to her and at worst is profoundly opposed to the principles in which she believes.[80] Consider, for example, the case of a secular couple that is married in a religious ceremony in church, not out of any desire to do so, but because that is what the law requires. These two people live in a cultural world that is very far removed from priests and other church attendants. But here they are, forced to cooperate with them in a ceremony that is foreign and strange, and which naturally arouses in both of them feelings of absurdity and self-ridicule. It is only in instances such as these, i.e., where secular people are forced to participate in religious ceremonies, that the claim to freedom from religion parallels the claim to freedom of religion (understood as freedom of conscience). In general, there is a direct relationship between the degree of involvement in the religious ceremony and the degree of significance of the ceremony for the person involved, and the possibility of claiming an offense to conscience: the more actively the secular person is required to participate in the religious ritual (reciting a blessing, for example) and the more significant the ceremony (a marriage ceremony, for example), the more convincing her claim that she is being forced to act contrary to her conscience.


But this conclusion seems not to sit well with the demand presented above, according to which a violation of freedom of conscience is dependent on the forced action falling into the category of mala per se. This condition would seem not to apply in such cases as the one cited above.[81] For most secular people, participation in religious ritual – reading a chapter from the Book of Psalms, visiting a church, donning a skullcap, reciting a blessing, holding a Torah scroll – is not problematic in itself and they are willing to do so if a relative or friend asks them nicely. In such circumstances, they have no sense of inner contradiction, and no feeling that they have thereby betrayed their innermost principles.


This question allows us to define more clearly the nature of the offense to conscience that is involved when a secular person is forced to participate actively in a religious ceremony. The problem lies not in the content and performance of the religious act itself, but rather in its meaninglessness for the secular person and in the implications of this meaninglessness for her. In such circumstances she feels self-alienated; she feels as though she is playing a role in a play where she does not belong. This sense of self-alienation is strengthened to the degree that the circumstances invite the attaching of significance that will reflect her unique identity. The marriage ceremony is an excellent example of such circumstances, since it is one of the main junctions in a person’s life. If this ceremony does not allow a person to express her opinions and taste, forcing her instead to express the opinions and tastes of others and to participate in a foreign and strange ritual, then her sense of alienation is natural. According to the definition formulated in section IIA, offense to conscience involves an act opposed to the profound normative principles of the agent. This definition suits the description here, for the opposition of someone who refuses to participate in a ceremony that is foreign to her arises from the principle that a person must be true to herself – particularly at the important junctions of her life.


We therefore propose to limit the protection of freedom from religion to protection from coercion to participation in religious ceremonies. As already mentioned, we cannot accept an extension of this protection to every instance of legislation or amendment whose source is religious, such as the prohibition of traveling on the Sabbath on a certain road. Refraining from traveling upon a certain road on the Sabbath certainly cannot be defined as mala per se, and it does not cause the driver any feelings of alienation and lack of authenticity. We may add to this that a broadening of freedom from religion beyond the suggested bounds is not only theoretically unjustified, but also contains some degree of discrimination against the religious community in terms of its ability to participate in the political arena. While laws based upon religious considerations violate – in accordance with this extension – the freedom from religion of the secular population and are therefore to be rejected (or will therefore require special justification), laws arising from other ideological considerations (vegetarian laws, for example) are not perceived as violating one’s freedom from the relevant ideology, and are therefore acceptable (or not requiring any special justification). No-one would claim that the law prohibiting the consumption of whale meat, for example, violates the freedom of conscience of those who enjoy eating it, because refraining from eating this meat does not fall into the category of mala per se for whale-meat connoisseurs, and does not cause them feelings of self-alienation. Similarly, we cannot accept that the law forbidding traffic through a certain area on the Sabbath violates the freedom of conscience of the drivers who wish to do so. And if the problem is not one of freedom of conscience then it is unclear why citizens require special protection against legislation – primary or secondary – based upon religious considerations as compared to legislation based upon other ideological or practical considerations. It should be emphasized that we do not mean hereby to express any opinion on the question of whether a law restricting certain behavior based upon various ideological considerations (vegetarian, religious or otherwise) is worthy or acceptable from a liberal perspective. All that we claim here is that the fact that people may oppose a certain law – even vehemently – does not imply that obeying that law represents a violation of their freedom of conscience, and this applies to laws arising from religious considerations no less than it does to laws based upon other considerations.


An example of the problematic use of the concept of freedom from religion as freedom of conscience is to be found in the Canadian ruling in the case of R. v. Big M Drug Mart Ltd.[82] This company was accused of selling goods on Sunday, in contravention of the Lord’s Day Act.[83] In response, the company claimed that this Act represents a violation of section 2 of the Canadian Convention of Rights and Freedoms, which guarantees freedom of conscience and of religion. The Canadian Supreme Court accepted this argument, claiming that the freedom of religion mentioned in the Convention applies principally to the freedom to maintain religious beliefs and to act in accordance with them, but also includes freedom from religion, which means freedom from State coercion that is motivated by a certain religious view. In this instance, the Court claimed, the law requires that all citizens, including non-Christians, remember the day sanctified to Christians and protect its sanctity – a demand that is incompatible with section 2 of the Convention. But to our view this is an artificial and forced description of the situation. No non-Christian citizens are required to “protect the sanctity of the Christian Sabbath”, i.e., to participate actively, as it were, in any type of belief or religious service to which they are opposed. All that is required of them is to close their businesses on Sunday – a restriction which is far removed from forcing a person “to affirm a specific religious belief or to manifest a specific religious practice”.[84] It is true that if I am Jewish or Moslem then my religion allows me to work on Sunday, but – contrary to the conclusion of the Court[85] - this does not imply that if I am prevented from realizing this right then my freedom of religion is being violated, for I am not being required to do anything opposed to the dictates of my religion.[86] In this ruling we may also detect a different line of argument, based upon the State’s need to remain neutral with regard to all the cultures existing within it, so as not to cause some of them – generally the minority cultures – to feel alienated and slighted.[87] However, putting aside the question regarding the validity of the ideal of neutrality,[88] it is unclear why it should be within the framework of this ideal that protection from preferential treatment to the religious sector should have a special status in comparison with protection from other preferential treatments.[89] If the symbols of the State – the national flag, for example - express a type of preference for the majority national culture, then members of other nationalities that live within the State may claim a lack of neutrality and a lack of respect towards them, but they would not have, in addition to this, a separate claim concerning “freedom from nationality”. In the same way, it is not appropriate for secular groups to present a separate claim to freedom from religion in addition to the claim of lack of neutrality.


The limitations that we propose here for use of the concept of freedom of conscience in the secular context – i.e., in the context of freedom from religion – are compatible with the generally accepted interpretation of restrictions in the religious context. By this we refer to the view according to which freedom of religion applies to actions that religious people are obliged to perform, rather than to actions that are permitted by their religion. In this spirit the U.S. Supreme Court ruled that although the Mormon religion permits polygamy, the law against polygamy does not violate the Mormons’ freedom of religion, for their religion does not require them to marry more than one woman.[90] The secular parallel to this is the distinction between actions that secular people feel obliged to avoid because performing them leads to a feeling of artificiality or self-deception, and those that secular people feel no obligation, in the name of authenticity, to refrain from performing, but to which they are opposed for various reasons. Only an attempt to coerce performance of actions of the first type can justify a claim to violation of freedom of conscience.


In summary, if freedom of religion is understood within the framework of freedom of conscience, then only a partial parallel between freedom of religion and freedom from religion emerges, in those instances where a non-religious person is forced to perform an action, or to participate in a ceremony, of a clearly religious nature,[91] especially where the ceremony constitutes a significant event in his life. In such instances, the person feels that he is alienated from himself, that he is behaving in a manner that is not authentic, and in this sense we may say that his conscience is being violated. Coercion of other behaviors – such as serving kosher food in certain circumstances or refraining from driving a car on certain roads at certain times – cannot reasonably be interpreted as a violation of freedom of conscience, and one could not, in such circumstances, demand constitutional protection on the basis of freedom from religion. Freedom from coercion in such cases should not be given special status in comparison with freedom from coercion based upon other world views.[92]


B. Other rationales for freedom from religion

            In the previous section we examined the concept of freedom from religion through the prevalent view according to which this freedom is included within freedom of religion. We opposed this view and attempted to demonstrate that the rationales supporting freedom of religion do not apply to freedom from religion, except, to a limited degree, the rationale of freedom of conscience. We claimed that it should not be assumed in advance that the conscience is offended by laws and amendments of a religious nature to a greater degree than it would be by laws and enactments of any other ideological nature. However, one may argue that there is nevertheless something particularly problematic about religious laws, that invalidates them in political-legal discourse, thereby awarding special status to protection from them. This line of argument may be detected among certain liberal writers, who maintain that basing laws upon religious views is not legitimate, and even contravenes the Constitution.[93] Kent Greenawalt raises two arguments in this context. Firstly, he claims, using religious arguments as a basis for legal rules may cause those who do not agree with these arguments to feel alienated and excluded. They may feel that they are being treated as “second class citizens”.[94] The sense of alienation, even humiliation, is related to the covert message of those who rely upon religious arguments: that they have access to fundamental truths about reality which others, unfortunately, have not merited:


At least for many religious arguments, the speaker seems to put himself or herself in a kind of privileged position, as the holder of a basic truth that many others lack. This assertion of privileged knowledge may appear to imply inequality of status that is in serious tension with the fundamental idea of equality of citizens within liberal democracies.[95]


However, as Michael Perry rightly argues, this claim is unconvincing. It is unclear why the fact that something is based upon religious arguments is worse than it being based upon secular arguments, for in both cases people may oppose them with all their heart. More generally: the fact that X does not agree with Y’s position does not imply that accepting this position would violate his dignity, or that it would cause him to feel self-alienation. And as to the argument concerning special knowledge, as Perry points out, many secular claims similarly present their proponents as seemingly possessing special knowledge concerning human nature, the structure of society, etc.[96]


The second claim raised by Greenawalt is based upon the damage that may be caused, to his view, as a result of the above-mentioned sense of inequality and alienation. This feeling is admittedly not likely to lead to actual violence, but it may well cause social tensions and a weakening of the relationships of mutual tolerance and respect within society. This argument belongs to a family of arguments according to which religion, for various reasons, endangers society.[97] Perry’s response to this argument is that an examination of centuries of religious influence on American politics demonstrates that this concern is exaggerated, or that – in his descriptive language – “the sky hasn’t fallen”.[98] Moreover, as noted by McConnell, the social instability brought about by debates concerning religion has never come close to that caused by the fiery political debates surrounding such issues as the Vietnam War, racial separation, Communism, professional unions, or slavery[99] - and no-one would think of limiting the use of arguments that gave rise to these last controversies. Lawrence Solum is likewise correct in pointing out that conditions in modern democratic countries are so significantly different from those that gave rise to the religious wars of the 16th century that we need no longer view religious debate as a significant source of civil conflict.[100] In the absence of an empirical basis for concern over any special tendency of religion to arouse controversy and cause divisions in these countries,[101] there is no justification for limiting the use of religious arguments in the political and legal sphere. In general, it is difficult to accept sweeping claims concerning the beneficial or harmful effects of religion without relating to the religious identity in question and to the existing political and cultural conditions at any given time.


Furthermore, even if it were true that religion had a particularly dangerous social potential, it is unclear whether this implies that religion should be restricted or, on the contrary, that its freedom should be fortified. At times, dangerous individuals and groups grow even more dangerous if they feel oppressed and marginalized, while if they are afforded some privileges they are more controllable.[102]


So much for Greenawalt’s arguments. A different argument for extending special protection against laws of religious origin may be based upon the assumption that religious considerations are not legitimate in the public and legal discourse of a liberal State. According to this assumption, the considerations that may be enlisted are only such that may, in principle, be understood by every member of the political community. Religious arguments, so the argument goes, are not intelligible to non-believers, and are therefore illegitimate.[103] This means, contrary to what we said above, that there is something special about religious laws, in comparison with other “ideological” laws, that renders them invalid for participation in legal discourse, and therefore a special need exists to protect against “religious” laws that violate freedom, as compared to the need for protection against other laws that do this.


This argument has aroused extensive debate in the legal literature in the U.S., all of which lies beyond the scope of this article.[104] For the purposes of our discussion, suffice it to say that even if this argument were valid, in reality it is difficult to find instances where an attempt is made to base legislation or court rulings upon a clearly religious argument, such as “God said that it is forbidden to do X”, or “That is what is written in the Book of Leviticus”.[105] The arguments raised by religious parties or bodies in public and political discourse are always of the sort that may be acceptable to a non-believer as well; arguments that do not presuppose any theological assumptions. For instance, in the Israeli context, we are not familiar with a single example of religious speakers demanding that law X be adopted, or that X amendment be passed, because that is what the Torah teaches. The reasons that they propose may theoretically be acceptable to secular thinking – and, indeed, they are often accepted. Two types of reasons are most often invoked: the one concerns the Jewish character of the State, where the proposed basis for the legislation is nationalistic or cultural, not religious. Here the emphasis is placed on the definition of the State of Israel as a Jewish State. The other type of reasoning focuses on the various rights of the religious community – to a certain autonomy within its residential areas, to protection against offense to its feelings, etc.


One may respond to this by saying that although on the overt level the religious speakers base themselves upon arguments of a general character, they are really motivated by religious reasons, and these – as explained above – are not legitimate players in the public arena. But this occupation with the hidden motives of individuals raising arguments in the public sphere is problematic. If the arguments that some individual raises are successful and convincing, they cannot be rejected solely on the basis of our suspicion that the motivation behind them is invalid. And if they are not convincing, then we shall not accept them even if we are convinced that their motives are pure. Moreover, in the wake of thinkers such as Freud, Focault and others, we have learned to be suspicious of most rational explanations that people offer for their behavior and their beliefs, and towards the arguments that they raise in public discourse. Even legal discussions are rationalistic only on a certain level; deeper down they are influenced by power struggles and attempts to promote the interests of specific groups. The various critical philosophies of the twentieth century sometimes exaggerated in their description of this reality, but they were not completely wrong. In summary, if the hidden motives underlying a large portion of the positions expressed in political and legal discourse – the pursuit of power, sex, honor, sectorial interests, etc. – do not invalidate them, then it is unclear why in the religious realm such motives should invalidate the relevant positions.


We discussed above the difficulty involved in fortifying a special status for the conscience of the religious person in comparison with the conscience of others. We can now see that the principle of equality, which plays a central role in the claim that religion should not be given special protection beyond that extended to other activities and institutions, also leads to the conclusion that it does not deserve less protection than they do. It is entitled to participate in political and legal discourse with a view to promoting its needs and interests, through legislation or through court rulings. The fact that such legislation or rulings may not find favor in the eyes of certain citizens, or in the eyes of certain groups, does not constitute a consideration against them any more than any other instance in which legislation or a ruling is perceived as misguided, annoying or foolish. Awarding citizens special protection from annoying religious legislation in comparison with other annoying legislation represents discrimination against religion, and the principle of equality cannot allow this.[106]


IV. Freedom of Religion and Freedom from Offense to Religious Feelings

            As we mentioned at the outset, protection of freedom of religion is perceived as being more important than protection from offense to religious feelings. This means that religious individuals or organizations that appeal to the court for assistance will attempt, first and foremost, to support their arguments with a claim to violation of freedom of religion, and only as an alternative, or as additional substantiation, will they attempt to base their case on offense to feelings. We shall focus on incidental offenses – i.e., instances in which the causing of emotional pain to religious people is not one of the reasons motivating the hurtful behavior.


What is the normative status of such hurt feelings? Are they sufficient to establish a moral demand to avoid the offensive behavior? Before we answer this question we must try to clarify further the nature of the situation. If a Moslem is not upset by the very knowledge that people eat pork, why are his feelings hurt when somebody eats pork near him, assuming that her doing so is in no way intended to offend or hurt the Moslem? It is because the Moslem has certain expectations from those who are aware - or who ought to be aware - of his presence (let us assume that the Moslem dresses in a way that makes his religious commitment apparent). Because these expectations are not realized, the Moslem feels that he is not being respected, hence his hurt feelings. Or, to take another example: A priest enters a supermarket in NYC in July. There are many women in the store, some of whom, in the priest’s eyes, are wearing rather immodest dress. He might be embarrassed by the situation and might feel uncomfortable. But we would not describe the situation by saying that the women in the store hurt the priest’s feelings, and it would be rather bizarre if he were to complain about them doing so. But now consider a different case. Suppose the priest is invited to a Christmas party in the neighborhood, where all the guests know he will be attending, yet when he enters the hall he discovers that many of the guests are dressed in a rather immodest manner. In this case he might feel not only embarrassment but also anger or insult. He had expected that the guests at the party would respect his presence by dressing accordingly. Their not doing so is interpreted as a message of disrespect, hence the hurt feelings.


What emerges from these examples is that typical complaints about incidental hurting of feelings presuppose the existence of expectations the victim has vis-à-vis the perceived offender; expectations which are not fulfilled. In other words, the victim’s feelings are hurt not as a direct result of the perceived offender’s behavior, but as a result of the expectations the victim has about this behavior. If all this is correct, then the question of the normative status of incidental offenses is contingent to a large extent on the normative status of not fulfilling other people’s expectations vis-à-vis my behavior. If I ought to fulfill these expectations, then not doing so might correctly be interpreted as showing disrespect and might serve as a basis for a legitimate complaint. If it is not the case that I ought to fulfill these expectations, then not doing so should not be taken as a sign of disrespect, and therefore cannot serve as a basis for a legitimate claim. But whether or not I ought to fulfill the expectations other people have regarding my behavior depends on the moral status of the behavior under discussion: If my behavior is morally wrong (because it violates rights, disregards interests, etc.) then the expectations that I behave otherwise are indeed justified – but then the hurt feelings play no real role in the argument intended to restrict my behavior. If, however, my behavior is morally acceptable then the expectation that I behave otherwise is unjustified; hence, the bad feelings caused by their non-fulfillment cannot constitute a serious moral claim.


Returning to our example of the priest and the immodestly-dressed woman: since the priest’s expectation that she dress modestly in a public place is groundless, any hurt feelings caused by her not doing so would carry no weight in his attempt to restrict her dress code. In contrast, since his expectation that she dress modestly when visiting his office to consult with him is justified, his hurt feelings would strengthen the just claim that he has against her.


From the point of view of these two levels – the direct violation and the insult it causes – the case of immodest dress is different from that of wearing a skullcap. A rabbi is walking along a street in Tel Aviv, and sees many Jewish men who are bareheaded. This sight does not disturb him, unless he makes a special effort to think about the generally distressing situation (to his view) of the low rate of religious observance among Jews. In any event, there is no direct disturbance here like that caused him by encountering a woman who is immodestly dressed. The lack of offense here applies even if the rabbi sits with a bareheaded secular man for a private meeting, e.g. meeting with his family doctor. The very sight of a bareheaded Jew does not fall into the category of disturbance. Now let us assume that a secular person – a politician, for instance – visits the rabbi’s house in order to consult with him on political matters. If the secular politician enters the house bareheaded, does the rabbi have any basis to complain of hurt feelings? Does he have reason to take offense? If the behavior under discussion – going about bareheaded – does not represent a disturbance in its own right, then not refraining from it should not be perceived as a lack of consideration. It is difficult not to suspect that at the root of the rabbi’s expectation that the secular man don a skullcap when visiting him stands a fundamental refusal to accept the secular way of life.


The difference between claims to violation of freedom of religion and claims to hurt religious feelings is that the first do not rely on any kind of emotional pain, and do not expect support solely because some individual, or some group, feels hurt. At the same time, the two concepts are closely related, which explains why it is not always easy to distinguish between them. Firstly, as we have just explained, complaints of hurt feelings are based upon some direct offense, which should be defined in terms other than offended feelings. If religious people complain that traffic around their synagogue on the Sabbath hurts their religious feelings, we must ask what the offense is that gives rise to this emotional pain when others do not refrain from it. Let us assume that the noise of the traffic is making it difficult for synagogue attendees to concentrate on their prayers. But disturbance to worship within a house of prayer seems very close to a violation of freedom of religion, especially if this is understood as the right to culture. It turns out, then, that the claim to hurt religious feelings in this instance boils down to a claim to violation of freedom of religion.


Secondly, if we understand freedom of religion in terms of freedom of conscience, it is natural to describe the violation of freedom of religion in terms of causing emotional pain, or emotional distress, as a result of the necessity of acting contrary to the dictates of conscience. In such circumstances, it is reasonable that the victims will also sense a loss of dignity because of the fact that their most profound beliefs are being scorned. Accordingly, a violation of freedom of religion is, at the same time, also an offense to religious feelings.


Another point of connection between hurting religious feelings and violating freedom of religion touches on the historical context of the use of these concepts. As explained elsewhere, the prevalence of complaints of hurt religious feelings in the West is related to the marginal status of religion which, having lost its hegemony, is under cultural threat by secular society. This threat finds its way into the heart of religious people, undermining in some or other manner their faith in the truths of their religion. This explains the noticeable vulnerability of these people when faced with the behaviors and expressions of members of the dominant, secular society. Freedom of religion, too – when understood in terms of the right to culture – is related, as we have seen, to the fact that religion is a minority culture, requiring special protection in order to survive in the face of the dominance of secular culture.[107] The difference is that in the case of hurt religious feelings, the threatened status of religion serves as an explanation for their growth, but not as a justification to award them special protection. When it comes to violation of freedom of religion, on the other hand, this status is meant to provide a normative justification for such protection.


Concerning both concepts under discussion, we assume that the claims of religious people should not be accepted without critical examination. When people complain that their freedom of religion is being violated, they must convince the court not only that they subjectively feel that such a violation has taken place, but that this feeling has some real basis – that there exists some coercion to transgress religious commandments, or some real disturbance to religious culture. The same applies to hurt feelings: when people complain that their religious feelings have been hurt, they must try to explain why the emotional pain is rational;[108] why it is proper that others be restricted in order to prevent it. The more convincing the explanation, the greater the chances that the religious people will receive what they are asking for, although the foundation of emotional pain is thereby rendered almost redundant. If the explanation is not convincing, the power of the religious people to request such restrictions is weak, although the opening for such requests is not completely negated. If the disturbance to the religious people is significant while the suggested restriction on the freedom of non-believers is minimal, consideration of the religious view should not be denied, even if the reasons for their emotional pain are not particularly strong.


V. Applications

            So far we have sought to present the reasons for protection of freedom of religion, freedom from religion and religious feelings, to examine the mutual relationships between them, and to clarify the scope of the protection that should be extended to each. In this section, we examine the degree of relevance of the three concepts discussed in the article within the circumstances of two possible scenarios. There are two reasons for the selection of these specific examples. One is that neither of them is imaginary; both took place in Israel and were debated at length in the Israeli Supreme Court. The other reason is that the dilemma that they present is not a localized one. Similar scenarios could take place in other countries, and the path we propose for addressing them could likewise assist legalists encountering similar problems in the U.S. or elsewhere.


a. Vehicular traffic on the Sabbath in an ultra-Orthodox Jewish neighborhood

            Does traffic on the Sabbath, on a road passing through the heart of an ultra-Orthodox Jewish neighborhood, violate the freedom of religion of the religious people living in the area (or of the religious community as a whole)?[109] Certainly not in the sense of violation of freedom of conscience, for the religious residents are not being obliged to desecrate the Sabbath, nor are they being prevented from observing it. Tens of thousands of Sabbath observers have lived in the past, and continue to live today, in areas in which other people drive on the Sabbath, without anyone imagining that these circumstances force them to transgress Jewish law, or that this situation represents an attack on their integrity. If a violation of freedom of religion exists here, it can only be a violation of freedom of religion in the sense of the right to culture, and in this sense the claim to freedom of religion sounds reasonable. We emphasized above that the natural place for this right is in instances where there exists a disruption of or disturbance to the life of the religious community within its geographical area. Such a disturbance makes it difficult for the community to maintain the atmosphere necessary for the preservation and development of its culture. To the extent that the road in question passes through an area populated almost completely by ultra-Orthodox Jews, it is perceived by them as part of their “home”, as the community’s public thoroughfare, and they feel entitled to a greater right in deciding its character than anyone else.


This application of the right to culture belongs to the category of restrictions upon those who are not members of the relevant community; restrictions that are aimed at helping the community maintain its culture. To Levi’s view, a prime example of such restrictions is the prohibition against advertisements in English in Quebec.[110] Another example is the right of a religious community such as the Amish to oppose the passage of pornographic material into their residential area because of the threat posed by such material to the values of their community.[111] In such instances, Levi claims, the justification of the requested restriction depends upon it being proved that such restriction will contribute significantly to the relevant community, and that the freedom that is being violated is not too highly valued to allow this. To our view, these conditions existed in the Bar-Ilan Road case. Closing the road to traffic at certain hours on Sabbaths and festivals does not represent a significant disturbance to the lifestyle of the drivers, whose journey is extended by only a few minutes, such that the price of closing the road is small. From the perspective of the religious community, in contrast, closing the road – at least partially – on Sabbaths makes a significant contribution both to the Sabbath atmosphere and, more generally, to the community’s feeling that its separate existence and culture is being respected and that an effort is being made to allow it to develop without disturbance. In weighing these considerations it is our view that the advantage is on the side of the religious demand.


Does closing the road violate the freedom from religion of the secular (or non-Jewish) drivers? We have already answered this question above, in section IIIA, in the negative. Forcing secular (or non-Jewish) drivers to travel route A instead of route B does not even come close to coercion to participate in a religious ceremony, and therefore no special protection need be extended against it,[112] beyond the regular protections enjoyed by any citizen of a liberal State against restrictions on his life and his autonomy.


Concerning offense to religious feelings in this situation, the issue was analyzed extensively in “Hurting Religious Feelings”[113], as an example of the problematic use of this concept. Very briefly, the analysis demonstrated that the hurt feelings of the religious residents should have played only a marginal role in the discussion, and the same applies to the feelings of the secular drivers. The actual emotional pain of the religious residents over the traffic on Bar-Ilan Road does not have sufficient normative weight to substantiate the demand that the road be closed. What could have substantiated such a demand is the argument that the ultra-Orthodox community, like any other, has the right to shape the face of its areas of residence in a way that will reflect and enhance its own values and beliefs. This interpretation of the Orthodox expectation that Bar-Ilan Road be closed on the Sabbath also helps to explain – on a psychological level – why their feelings are hurt when the expectation is not fulfilled. The expectation is based on the conviction that the area through which Bar-Ilan Road passes is the Orthodox community’s home. And the feeling that within one’s home other people do not respect one’s interests is especially offensive; hence the gravity of the hurt feelings of the community.


We have seen that the religious side in this debate can be presented in a fair manner with no reference at all to the notion of hurt feelings. It would be helpful to reiterate the advantages of doing so: First, it does more justice to the religious position by focusing on what really bothers the community, i.e. on the reasons for bad feelings, rather than on the feelings themselves. Secondly, it allows these religious people to enter into this public debate as proud adults demanding what they regard as their legitimate rights, not as weeping children appealing for pity. Thirdly, the focus on reasons, interests and rights instead of on feelings saves us from the need to compare the bad feelings of the two sides in the debate. The feelings of non-religious people were also hurt in this case by what they regarded as the imposition of religious values upon them. By downplaying the normative role of hurt feelings in the debate, we avoid the ridiculous demand to decide such cases according to who suffers more, or who weeps more loudly.


B. Screening of television programs on the Sabbath in which Orthodox Jews play an active role

            Israel’s Second Channel wished to broadcast a film on the Sabbath documenting the lives and views of Orthodox Jews living in a community settlement. These people played active roles in the film, including interviews. After the filming had been completed, they discovered that the planned broadcast date fell on the Sabbath. They appealed to the Supreme Court, arguing that their freedom of religion would be violated if the Second Channel went ahead with its plan. Would broadcasting the film on the Sabbath, in transgression of religious commandments, constitute a violation of freedom of religion? As we explained above, only if the violation involves an act or omission on the part of the appellants themselves could it receive protection in the name of freedom of conscience. As Donagan points out, “the conscience of the agent is limited to the actions of the agent himself”.[114] In order to determine whether freedom of religion has been violated, in the sense of freedom of conscience, we must therefore determine whether the transgression of religious commandments entailed by broadcasting the program on the Sabbath involves an act or omission by the appellants.


It was this very question that gave rise to debate among the Justices of the Israeli Supreme Court, Justice Dalia Dorner and President of the Court, Aharon Barak.[115] To Dorner’s view, freedom of religion is required in this instance to protect the appellants against forced participation in a transgression that they themselves would be performing. In general Dorner seeks to extend the boundaries of protection of freedom of religion beyond what she calls “physical coercion”. The freedom of religion of a Jew is violated, to her view, not only if he himself is forced to transgress the Sabbath, but also even if his property is involved in Sabbath desecration; not only when he is forced to hold a crucifix or to bow before it, but also when a crucifix is attached to the Justice’s bench in a court in which he appears as an advocate. In contrast, Barak argues that the case at hand involves a religious transgression committed by others, and therefore lies beyond the boundaries of protection of freedom of religion. We maintain that Barak is correct in this case. Accepting the idea of “participation” or “collaboration” between those who commit the transgression and the appellants extends intolerably the boundaries of protection of religion, such that religious people will be able to place restrictions on secular people that no liberal position could accept. Dorner is correct in noting that the boundary between a situation that may be considered as active involvement, for the purposes of protection of freedom of conscience, and a situation that may not, is not clearly defined, but the case in question definitely falls into the latter category, and therefore cannot take refuge under the umbrella of freedom of religion in the sense of freedom of conscience.


Understood as freedom of conscience, then, the freedom of religion of the appellants was not violated by the screening of the film on the Sabbath. But what about violation of freedom of religion understood as the right to culture? Here again, the answer is in the negative, in accordance with what we argued concerning the scope of this right in section IIB. Our position was that complaints on the basis of the right to culture are convincing to the extent that the disturbance to religious culture is real, and to the extent that it takes place in the geographical area in which that culture resides, in its “home”. In our case, it seems that neither condition was fulfilled. The screening was carried out within the framework of Friday night television programming, far from the geographical area where this religious group resides, and it involved no disturbance to their religious worship or any significant threat to religious culture. If any disturbance exists here, it is too indirect and distant to justify protection in the form of the right to culture.


Would preventing the broadcast violate the freedom from religion of the broadcasting company? In accordance with the argument that we developed in section III, the answer is clearly negative. Although the motivation for the appeal was based upon the religious consciousness of the appellants, its acceptance would not fall within the category of freedom from religion requiring protection. According to what we said there, freedom from religion – understood as a branch of freedom of conscience – has validity only when a secular person is forced to participate actively in a religious ceremony – a condition which, obviously, would not exist even if the broadcasting of the film was prevented. Therefore we may add that if the court had accepted the argument of the appellants, the basis for such acceptance would not have been the truth of the religious world-view, but rather the importance of freedom of religion in the sense of freedom of conscience. In this situation, what the respondents would be forced to do is to respect not religion, but rather conscience, and it is difficult to image anyone claiming that special protection is required against laws or actions arising from respect to conscience.


What about hurt feelings? To our view, the considerations described in section IV above lead to the conclusion that the group’s complaint of hurt feelings should have been recognized. The hurt was obviously not intentional; the broadcasting company did not act in the way it did in order to cause emotional pain to the appellants, but even such incidental offense has some weight. As explained above, in such cases there are two levels of hurt: the direct offense caused by a certain act, and the emotional hurt caused by the feeling that this offense reflects a profound lack of consideration for the interests and needs of the victim. In our case, the hurt exists on both levels. The offense on the first level is the unpleasant feeling experienced by the religious group at the thought of being collaborators, as it were, against their will in an act of public Sabbath desecration in circumstances that express symbolically in their consciousness the secular perception of the Sabbath. The offense on the second level grows out of the thought that this religious sensitivity is ignored for no good cause. The justification supplied by the broadcasting company for its refusal to consider the feelings of the appellants was the fear that its own freedom of expression would be violated. However, deeper examination of this claim shows that in the circumstances of the case it is not convincing. Freedom of expression would not have been violated at all – or would have been violated to a marginal and insignificant degree - if the appeal had been accepted. At most, the company would have suffered some financial damage if the screening had been postponed, but it is almost certain that even this damage could have been avoided. Given these facts, the impression is that the Second Channel simply was not prepared to make the slight effort necessary to move the screening of the program to another day. Perhaps the company feared that its agreement would become a dangerous precedent; perhaps it saw it as a matter of principle not to bow to what it interpreted as “religious coercion”.[116] These are exactly the kind of circumstances that give rise to hurt feelings. The refusal to accept the appellants’ request, despite the minimal price that this would have entailed, was perceived by them as reflecting a lack of concern and a profound lack of respect towards them.


These hurt feelings are intensified if we add to them the non-symmetrical relationship embodied in the unwritten contract between the Second Channel - a large, influential and experienced public body - and the residents of the community, “young people, lacking experience and contact with the media”.[117] In a contract of this type, the obligation of good faith rests more heavily upon the stronger party, and it has a special obligation to be sensitive to the situation of the weaker party. Therefore it is not the appellants who “should have known that the film would be screened on the Sabbath” (as Barak claims in section 3 of his ruling), but rather the company that should have known that religious people are likely to object to participating in a program that will be screened on the Sabbath. The sense of lack of fairness of their position vis-à-vis the broadcasting company therefore exacerbates the offense to the feelings of the appellants.


VI. Summary and Conclusions

  1. Within a liberal world-view, the special status of freedom of religion cannot rest upon either a claim as to the truth of religious belief or an assertion as to the benefits of religion for the individual or for society. Rather, its justification must be anchored in the rights and freedoms that are recognized by the liberal view and that are extended equally to all citizens – especially freedom of conscience and the right to culture. But such reasoning leads to the reduction of freedom of religion to these other rights. Thus the claim of religion to a special status requiring unique protection is undermined.
  2. The trend in many western democracies is, indeed, to protect freedom of religion in the same way and using the same categories that apply to the rights and freedoms of any other individual or group. Officially, religion still retains its special status, but practically this is becoming increasingly irrelevant. If this trend continues – and right now we see nothing stopping it – the sections dealing with freedom of religion “will quietly retire from active duty”, as Steven Smith vividly puts it.[118]
  3. Denying the uniqueness of religion does not withhold all protection from it, but limits such protection to the boundaries defined by the freedom of conscience and the right to culture. Since violation of the freedom of religion is a prime example of violation of each of these rights, religion may obtain a reasonable degree of protection within their framework. These are the moral, political and legal rationales with which claims of violation of freedom of religion should be measured. They are not completely separate from one another; a certain degree of overlap does exist.
  4. Within the framework of freedom of conscience, freedom of religion protects against coercion of religious people to act contrary to the dictates of their religion. Within the framework of the right to culture, freedom of religion protects against disturbances of or threats to religious life, usually within the geographical area in which the religious minority represents a majority. Extending the protection of freedom of religion beyond these circumstances is almost always unjustified, especially if it involves attempts to place restrictions upon the secular majority within its residential areas.
  5. Just as it is difficult to justify the claim that freedom of religion is worthy of special protection in comparison to other human practices, beliefs or institutions, so it is difficult to justify the claim that freedom from religion is worthy of such protection. While the first claim expresses an unjustified preference for religion, the latter expresses unjustified discrimination against it. There is no basis for awarding citizens special protection against “religious” legislation or activity beyond the regular protections against restrictions on their freedom.
  6. In contrast to the prevalent position, freedom of religion (whatever its weight) does not include freedom from religion. The only instances in which a certain symmetry exists between these two freedoms (both understood as falling under the protection of conscience) occur when secular people are coerced to participate actively in religious ceremonies. Only in such cases can secular people claim offense to their conscience caused as a result of the restriction of their freedom.
  7. The principal difference between violation of freedom of religion and offense to religious feelings is that although both may involve emotional pain on the part of the victim, a complaint of the former type exists independently of such hurt feelings. Nevertheless, these concepts are closely related and the distinction between them is not always clear.
  8. The framework we have proposed here weakens the protection of religion, since it does not perceive freedom of religion as a separate right, independent of other freedoms and rights. It also refuses to recognize the negative behavior (from a religious perspective) of secular people as a violation of freedom of religion. At the same time, it clarifies the theoretical basis for this freedom, which comprises freedom of conscience and the right to culture, and thereby strengthens the possibility of protection against violation of it in circumstances where this is required.

[1] This concept has already been discussed at length elsewhere. See Daniel Statman, Hurting Religious Feelings, 3 Democratic Culture 199 (2000).

[2] Stephen Pepper, The Conundrum of the Free Exercise Clause – Some Reflections on Recent Cases, 9 Northern Kentucky L. Rev. 265, 303 (1982).

[3] Phillip Johson, Concepts and Compromises in first Amendment Religion Doctrine, 72 Cal. L. Rev. 817, 839 (1984).

[4] Mark Tushnet, Red, White and Blue: A Critical Analysis of Constitutional Law (1988) at 248. The quotations in the two previous footnotes are taken from there, p. 247, note 1.

[5] Freedom of religion is protected in the founding documents of all western democracies, as well as in international documents concerning human rights. See, for example, Article 18 of the Universal Declaration of Human Rights; 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); Article 19 of the International Covenant on Civil and Political Rights, G.A. Res. 2220, 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; Article 9 of the European Convention on Human Rights.

[6] In the 19th century the prevalent view perceived the State as a night-watchman, whose principal task lay in the sphere of security – to establish an army, a police force, courts and prisons, and to collect taxes for these purposes. Beyond this the State was not meant to interfere. The social and economic spheres were reserved for private bodies, the assumption being that market forces would act to satisfy the needs of the public in an efficient manner. Reality did not match these expectations; the liberal State brought about horrendous exploitation and a deepening of social rifts. As a result, towards the end of the 19th century a new perception of the State began to be consolidated: the welfare State. According to this view, the modern welfare State is meant to assist the weaker strata of the population through protective legislation, such as safety laws or laws stipulating maximum work hours, and through the provision of services to the needy, such as welfare grants, old-age insurance and health services. The State consequently became heavily involved both in the legal regulation of many spheres of life and in the provision of basic services. The adoption of this model condensed much power in the hands of the State, simultaneously weakening alternative strongholds of power (private voluntary organizations). In view of this reality there is some danger that the State may be tempted to make harmful use of its power without the individual citizen having the power to fight it. It is against this background that the claim is made for the potential function of religion as a balancing and mediating agent.

[7] For a presentation of a claim of this type, see Stephen Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (1993).

[8] R. Bibby, The Bibby Report: Social Tends Canadian Style (Toronto, 1995), quoted and referred to by John Von Heyking, The Harmonization of Heaven and Earth? Religion, Politics, and Law in Canada, 33 U.B.C. L. Rev. 663, 669 (2000).

[9] Governments at times rely consciously on religious organizations to fulfill certain social functions during times of need. See Canada West Foundation, “Government Relations With Religious Non-Profit Social Agencies in Alberta: Public Accountability in a Pluralist Society: Alternative Service Delivery Project Report (January, 1999).

[10] There are, of course, those who maintain that the moral dangers of religion are immeasurably greater than its chances of achieving positive effects. See, for example, Christopher L. Eisgruber & Lawrence G. Sager, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. Chi. L. Rev. 1245 (1994). (“[The] privileging of religion appeals to our desire as a society to remain alive to the moral, non-self-regarding aspects of life, and sees organized religion as a taproot of this vital aspect of human flourishing. But while religion sponsors the highest forms of community, compassion, love, and sacrifice, one need only look around the world, or probe our own history, to recognize that it also sponsors discord, hate, intolerance, and violence…” Id. at 1265.) Concerns over the anti-democratic nature of religion lead some to maintain that at times not only should religion not be awarded special protection in comparison with non-religious activities or organizations, but that it should be less protected. Gey, for example, claims that because of the religious threat to democracy, the prohibition of institutionalization in the Constitution should be interpreted as necessitating limitations on religious expression, in circumstances where non-religious expression is permitted. See Stephen Gey, When is Religious Speech Not ‘Free Speech’, 2000 U. Ill. L.R. 279, esp. part IV

[11] For a general discussion of how religious beliefs influence moral activity, see Avi Sagi & Daniel Statman, Religion and Morality (1995), ch. 5.

[12] To the view of Paul J. Weithman, such a contribution is satisfactorily proven by empirical studies carried out in the U.S. leading to the conclusion that churches make an important contribution to American liberal democracy. See Paul J. Weithman, Religion and the Obligations of Citizenship (2002), ch. 2.

[13] The fact that the proposed justification bases freedom of religion upon considerations of benefit to society, or the public good, rather than benefit to the individuals, is not unusual in discussions about the justifications for various freedoms. As an example, Mill views freedom of expression as being justified, inter alia, because “the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race." John Stuart Mill, On Liberty in Mill, Texts Commentaries 41, 53 (Alan Ryan ed. 1996).

[14] Concerning Christians, see R.A. Witter, W.A. Stock, M.A. Okun & M.J. Haring, Religion and Subjective Well-Being in Adulthood: A Quantitative Synthesis 26 Review of Religious Research 332 (1985); D. Kahneman, E. Diener & N. Schwarz, Well-Being: The Foundation of Hedonic Psychology (1999). Concerning Jews, see Noa Wilchinsky, Religiosity and Mental Health (Doctoral Thesis, Bar-Ilan University, 2001) [Hebrew].

[15] Nicholas Dent, “Conscience”, Routledge Encyclopedia of Philosophy, Vol. II, 579 (1988).

[16] For use of this example see, for example, Alan Donagan, Conscience, Encyclopedia of Ethics, Vol. I 297, 298.

[17] Martin Luther, Works, (Jeroslav Pelikan ed., St. Louis: Concordia Publishing House, 1958), vol. 35, p. 72, quoted in Edward Andrew, Conscience and Its Critics: Protestant Conscience, Enlightenment Reason, and Moral Subjectivity 22 (2001).

[18] For a different view, maintaining that the concept of conscience is not inherently anti-authoritarian, see Mark Murphy, The Conscience Principle, 22 Journal of Philosophical Research (1997) 387.

[19] Andrew, supra note 17

[20] C.f., for example, the following words placed in God’s mouth by Milton: “And I will place within them as a guide/My umpire Conscience” (Paradise Lost III: 194-5).

[21] Luther, supra note 17, vol. 32, p. 112.

[22] Concerning the connection between protection of conscience and respect for moral integrity in conscientious objection in such instances as abortions or doctor-assisted suicide, see Mark Wicclair, Conscientious Objection in Medicine, 14 Bioethics (2000) 205.

[23] In light of this understanding of the concept of conscience, it is difficult to accept the position of the Canadian Supreme Court, which ruled that obligating workers to join one of the recognized workers’ unions represents a violation of their freedom of conscience. It is difficult to see how joining such a union could represent a violation of deeply-held principles that constitute the personal identity of the worker. See R. v. Advance Cutting & Coring Ltd. 2001 SCC 70.

[24] For a comprehensive defense of the concept of conscience, maintaining that it is vital to any theory of virtue, see Douglas Langston, Conscience and Other Virtues (2001).

[25] Haim Ganz, Philosophical Anarchism and Political Disobedience 156 (1992)

[26] Cf. the Canadian Supreme Court’s assertions that “Religious belief and practice are historically prototypical and, in many ways, paradigmatic of conscientiously-held beliefs and manifestations and therefore protected by the Charter”, (R. v. Big M Drug Mart 1 SCR 295 [1985]); “Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society” (Church of New Faith v. Commissioner for Pay-Roll Tax [1983] 49 ALR 65, 68-9)..

[27] These comments obviously do not exhaust the concept of coercion, concerning which there exists a broad philosophical literature. See, for example, Alan Wertheimer, Coercion (1989), or – more recently – D. Arnold, Coercion and Moral Responsibility, 38 American Philosophical Quarterly 53 (2001); G. Lamond, Coercion and the Nature of Law, 7 Legal Theory 35 (2001)..

[28] McConnell answers this with the claim that there is a difference between conscientious decisions whose source is religious and those whose source is not. The first type arises from subjugation to God’s command, and from this point of view they lie outside of man’s range of control. The second type arises from voluntary personal choice. See Michael M. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. (1990) 1409, 1497; Gidon Sapir, Religion and State: A Fresh Theoretical Start, 75 Notre Dame Law Rev. 579, 641-642 (1999); Fredrick M. Gedicks, An Unfirm Foundation: The Regrettable Indefensibility of Religious Exemption, 20 U. Ark. Little Rock L.J. 555, 562-563 (1998).

[29] Section 6(j) of the Universal Military Training and Service Act of 1948, 50 U.S.C. app. § 456(j) (1958)

[30] An original way of solving this problem was proposed by the U.S. Supreme Court in U.S. v. Seeger: to broaden the scope of religious belief to include any conscientiousness – i.e., honest attachment to principles. In this case Seeger appealed to the court after not receiving an exemption because of the doubt as to the religious basis, required by law, for his objection to military service. The court ruled that “the beliefs which prompted his objection occupy the same place in his life as the belief in a traditional deity holds in the lives of his friends, the Quakers” (U.S. v. Seeger, 380 U.S. 163, 187 [1965]), and to strengthen this claim the court quoted the theologian Paul Tillich: “And if that word [God] has not much meaning to you, translate it, and speak of the depths of your life, of the source of your being, of your ultimate concern, of what you take seriously without any reservation. Perhaps, in order to do so, you must forget everything traditional that you have learned about God.” (Paul Tillich, The Shaking of the Foundations 57 (1948), quoted in U.S. v. Seeger, id. According to this claim, there is therefore no instance of freedom of conscience that is not at the same time also an instance of freedom of religion. For a proposal, in the American context, that protection of freedom of religion be called protection of freedom of conscience, both for historical reasons and because of the lack of justification for distinguishing between the two, see Laura Underkuffler-Freund the Separation of the Religious and the Secular: A Foundational Challenge to First Amendment Theory, 36 Wm. & Mary L. Rev. 837, 961-968 (1995).

[31] Sapir, supra note 28, at 625-641

[32] Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995); Kymlicka Liberalism, Community and Culture (1989).

[33] See, for example, Avishai Margalit & Moshe Halbertal, Liberalism and the Right to Culture, 61 Soc. Res. 491 (1994).

[34] Sapir, supra note 28, at 634. C.f. Halbertal and Margalit, Id., at 510: "[I]f the matter [constructing the public space] were left to the forces of the market, the majority culture would soon take over the entire public space."

[35] Halbertal and Margalit, id. at 509.

[36] By the term “minority culture” we refer to a group that is weak or threatened, even if in terms of numbers it is not inferior to the “majority culture”.

[37] It is interesting to note that at the beginning of the development of the literature on the right to culture, no connection was drawn between this right and the freedom of religion; in fact, at times the very possibility of such a connection was explicitly negated. See, for example, Kymlicka, Multicultural Citizenship, supra note 32, at 11: “… the analogy between religion and culture is mistaken… it is quite possible for a state not to have an established church. But the state cannot help but give at least partial establishment to a culture…”. In current literature, in contrast, this connection is prevalent, to the point where freedom of religion is sometimes turned into a perfect example of the right to culture. See, for example, Bhikhu Perekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory” and Jacob T. Levy, The Multiculturalism of Fear, in Obligation of Citizenship and Demands of Faith: Religious Accomodation in Pluralist Democracies (Nancy L. Rosenblum ed., 2000); Jeff Spinner-Halev, Surviving Diversity: Religion and Democratic Citizenship, in Citizenship in Diverse Societies (Will Kymlick and Wayne Norman eds. 2000). But see also Moddod, who claims that “most theorists of difference and multiculturalism exhibit very little sympathy for religious groups; religious groups are usually absent in their theorizing and there is usually a presumption in favor of secularism.” Tariq Moddod, The ‘Recognition’ of Religious Groups, in Citizenship in Diverse Societies id. at 187.

[38] Ethic minorities are often distinguished from the majority culture also in terms of religion; examples include the Arabs in Israel, the Pakistanis in Britain, the Turks in Germany, etc.

[39] An example of recognition by the legal system of the idea of the right to culture is to be found, in the view of many commentators, in the famous Yoder ruling (Wisconsin v. Yoder, 406 U.S. 205 [1972]. According to these interpretations, the recognition of the importance of the interest of the appellants in preserving their communal framework with its special culture was a central factor in the consolidation of the court’s position. See, for example, Suzzane L. Stone, The Intervention of American Law in Jewish Divorce: A Pluralistic Analysis, 34 Isr. L.R. 170, 183 (2000); Will Kymlicka, supra note 32, at 144; Ayelet Shachar, Two Critiques of Multiculturalism 23 Cardozo L. Rev. 253, 254 (2001).

[40] See supra notes 32 and 33.

[41] "[T]he individual's right to culture stems from the fact that every person has an overriding interest in his personality identity--that is, in preserving his way of life and the traits that are central identity components for him and the other members of his cultural group." (Margalit & Halbertal, supra note 33, at 505).

[42] Collective goods are public goods whose benefit is available to anyone belonging to the society in which they exist – for example, the fact that a society is tolerant, educated, has respect for human beings, etc. See Joseph Raz, The Morality of Freedom 198-199 (1986).

[43] Id., at 251.

[44] Michael Waltzer, Obligations: Essays on Disobedience, War and Citizenship 4 (1970)

[45] Id., at 5.

[46] Id., at 22.

[47] For an example of a matter of conscience related to the collective, see Raz’s discussion of conscientious objection (ibid. p. 252).

[48] Vehicular traffic through ultra- Orthodox Jewish neighborhoods on the Sabbath is one of the examples mentioned by Margalit and Halbertal as to what may be forbidden in the name of protection of the right to culture in the sense of the right to identity. (Margalit and Halbertal, supra note 33, at 506-07).

[49] Richard Norman, Ethics, Killing and War 91 (1995).

[50] B. Williams, A Critique of Utilitarianism, in Utilitarianism: For an Against 116-117 (Smart & Williams eds. 1973).

[51] G. Ryle, Collected Papers, vol. 2, 185 (1990). C.f. Donagan’s comment: “An agent’s conscience is restricted to that agent’s own actions: one’s conscience cannot make one conscious that somebody else ought to do something.” Donagan, supra note 16, at 297.

[52] H. L. A. Hart, Law, Liberty and Morality 46-48 (1963)

[53] An effective attempt at setting out and defining the various arguments and justifications raised within the framework of the right to culture was conducted by Jacob Levy, who describes eight fundamental ways in which the State respects the right to culture. See Jacob T. Levy, Classifying Cultural Rights, in Nomos XXXIX: Ethnicity and Group Rights 22 (W. Kymlicka and Ian Shapiro eds. 1997). The second of these eight ways is “Assistance to do those things the majority can do unassisted.” Id. at 25.

[54] Sapir, supra note 28 at 634.

[55] See Pig Raising Prohibition Law, 16 Laws of the State of Israel 93 (1962).

[56] An interesting question is what happens when the State seeks to coerce the members of the religious minority to leave temporarily the sheltered area of their community for the outside, where the majority culture is generally prevalent – for example, forcing members of the ultra-Orthodox community in Israel to join the army. To Sapir’s view, the right to culture does indeed substantiate a powerful argument against enforced enlistment of the ultra-religious. Gidon Sapir, Drafting Yeshiva Students in Israel: A Proposed Framework of the Relevant Normative Considerations, 9 Plilim 217 (2000) [Hebrew].

[57] Supra note 1.

[58] C.f. the reform proposed by Poulter for the offenses of blasphemy and racial hatred, which are formulated in such a way as to prevent and forbid humiliation of and incitement against “racial or religious” minorities. Sebastian Poulter, Towards Legislative Reform of the Blasphemy and Racial Hatred Laws, Public Law 371, 372 (1991).

[59] See the edifying analysis by Steven D. Smith, The Rise and Fall of Religious Freedom in Constitutional Discourse, 140 University of Pennsylvania L.R. 149 (1991), discussing all the non-religious rationales to justify special protection for religion, and demonstrating that they are not convincing.

[60] Id. at 219.

[61] Church of the Holy Trinity v. U.S. 143 U.S. 457, 471 (1982).

[62] United States v. MacIntosh, 283 U.S. 605, 625 (1931).

[63] It is almost superfluous to repeat here the prevalent illusion maintaining that in the U.S. there always existed a strong separation of church and State (a “Wall of Separation”, in Jefferson’s words), inspired by the First Amendment’s demand for an absence of institutionalization. In a recently-published comprehensive study, Hamburger demonstrates that freedom of religion in the First Amendment should not be understood in terms of separation of church and State. Such an understanding began to develop in the U.S. only during the 19th century, in the wake of increasing apprehension towards organized churches, especially the Catholic Church, and it came to control legal and public thought only in the twentieth century. To Hamburger’s view, not only is the idea of separation not included in the freedom of religion included in the Constitution, but in fact it undermines this freedom. While the prohibition against institutionalization and the freedom of religion in the Constitution are meant to limit the government with regard to religion, the idea of separation has come to be interpreted as limiting religion. See Philip Hamburger Separation of Church and State (2002).

[64] Because of the perception of Christianity as central to the identity of the American nation, and because of the perception that it was vital to the establishment of a cultural society, the Supreme Court also approved various laws of a religious character until the end of the 19th century. These include, for example, laws against blasphemy, laws against opening businesses on Sunday, etc. See, for example, H.F. Way, The Death of the Christian Nation: The Judiciary and Church-State Relations 29 Journal of Church and State 509 (1987).

[65] Wisconsin v. Yoder, 406 U.S. 205 [1972]

[66] Employment Division v. Smith, 494 U.S. 872 (1990).

[67] Daniel O. Conkle, The Path of American Religious Liberty: From the Original Theology to Formal Neutrality and an Uncertain Future, 75 Indiana L.J. 1, 2 (2000).

[68] Carter, supra note 7 at 130.

[69] See, for example, David A. J. Richardson, Toleration and the Constitution (1986).

[70] See especially Carter, supra note 7, and Michael W. McConnell, An Update and Response to the Critics 60 George Washington L.R. 685 (1992).

[71] Concerning the situation in Canada, see Von Heyking’s analysis, claiming that the current interpretation by the Canadian court of the Canadian Convention of Rights and Freedoms “collapses religion into conscience." Von Heyking, supra note 8, at 678.

[72] Daphna Barak-Erez and Ron Shapira, The Delusion of Symmetric Rights, 19 Oxford J. of Legal Stud. 297 (1999).

[73] Nachmani v. Nachmani 50(4) Piskei Din [P.D.] 661 [1996], especially the statement by Justice Strassberg-Cohen.

[74] A similar position is adopted by the Supreme Court in Israel which, in a list of rulings, has assumed as self-evident that freedom of religion also includes freedom from religion. Hence, for example, Justice Ohr states in Horev v. Minister of Transport, 51(4) P.D. 1, 93 [1997]: “Within the concept of freedom of religion and conscience is bundled up the right of the public to freedom from religion.” See, also, the words of Justice Heshin in Mitrael v. Minister of Religious Affairs, 47(5) P.D. 485, 507 [1993] (“From the overarching principle of freedom of religion and freedom from religion we deduce the law that religious commandments are not forced upon one who is not observant”); Justice Barak in Shavit v. Rishon Le-Zion Burial Society, 53(3) P.D. 600, 649 [1999] (“Freedom of religion, which in my eyes is no more than an aspect of human dignity… freedom from religion is likewise an aspect of human dignity.”); and Justice Berenzon in Rogozinsky v. The State of Israel 26(1) P.D. 129, 134 [1972] (“Freedom of religion includes… also the freedom not to belong to any religion.")

[75] Kathleen Sullivan, Religion and Liberal Democracy, 59 U. Chi. L. Rev. 195, 197 (1992).

[76] Michael McConnell, Religious Freedom at a Crossroads, 59 U.Chi. L. Rev. 115, 174-175 (1992).

[77] See supra text accompanying note 36.

[78] Sometimes members of the minority group represent a majority in a given geographical area, and therefore in this area it may be the members of the majority group who actually deserve cultural protection. Think, for example, of ultra-Orthodox Jews in Bnei Berak – an ultra-religious city in Israel, close to Tel Aviv – who are a minority relative to the secular majority in Israel, but a majority relative to the secular minority of Bnei Berak. Another example would be Anglophones in Quebec, where there is a Francophone majority. The right of Francophones in Quebec to protect their culture may collide with and violate the right of the Anglophone minority in Quebec to protect its own culture. A conflict of this type arose in the famous Ford case and its associated controversy. The Canadian Supreme Court disqualified a Quebec law forbidding the use of any language other than French for signposting. See Ford v. Quebec (A.G.) 2 S.C.R. 712 [1988]. In response, the Quebec House of Representatives anchored this arrangement back in the law, backed by an override clause, although more lenient than its predecessor in that it was limited to outdoor signs. However, the population of Quebec was not unified in its support of the law. One group, represented by the Liberal Party, supported both the ruling of the court and the use of the override clause in the new law in its limited version. A second group, represented by the Quebec National Party, maintained that the original law should have been re-legislated in such a way as to include internal signposting as well, rather than limiting it. A third group, represented by the English faction of the Liberal Party – the most important for our discussion – opposed the law and supported the ruling of the Court, claiming that the law – even in its more passive version – did not sufficiently protect the rights of the Anglophone group. See Debate de l’Assemblee nationale (19 December 1988) at 4370-4388; Debate de l’Assemblee nationale (20 December 1988) at 4399-4499; Debate de l’Assemblee nationale (21 December 1988) at 4513-4571.

[79] It would seem possible to argue that the demand that an action be considered mala per se in order that its coercion be considered a violation of freedom of conscience almost topples the protection of freedom of religion in the name of freedom of conscience, for many transgressions are perceived by the religious person as evil only because they are forbidden by God. This is particularly so concerning those commandments known as “traditional” ones, which the Jewish philosopher Rabbi Sa’adia Gaon explains as referring to acts which the intellect “does not obligate love for them in themselves or distaste for them in themselves” (Rabbi Sa’adia Gaon, Emunot Ve-De’ot, section III, chapter 1). But it seems that the present context calls for a broader interpretation of mala per se, including all negative actions whose negativity is not based upon human orders. The important point concerning such actions is that a person who believes in their negativity will refrain from performing them even if no law exists forbidding him to do so. Accordingly, even “traditional” prohibitions – for example, forbidden foods – will be considered mala per se in the relevant sense.

[80] C.f. the statement by Justice Berenzon in Rogozinsky, 26(1) P.D. 129, #: “Freedom of conscience is a broader concept than freedom of religion. It is based, to a large extent, on the individual consciousness of each person and the subjective foundation is of paramount importance. Therefore… it would perhaps be possible to claim that obliging one who denies the faith to submit himself to the ruling of a religious court and to undergo a ceremony of traditional-religious character, which is opposed to his consciousness and his conscience, would represent a violation of his freedom of conscience.”

[81] Obviously, we do not deny the existence of instances where opposition to participation in a religious ceremony arises from opposition to certain ideals or values expressed in it, perceived by the secular person as negative. Hence, for example, a secular person may oppose participating in a religious marriage ceremony because of the non-egalitarian status of the man and woman as expressed in the ceremony or in the relationship that it comes to establish. In such cases, the basis for the secular person’s opposition to the ceremony is not based on the fact that the ceremony is a religious one, but rather on the fact that he views the ceremony as being morally problematic. It would therefore be wrong to define the secular person’s claim in such instances in terms of freedom from religion.

[82] Supra note Error! Bookmark not defined.

[83] Lord’s Day Act, R.S.C. 1970, c. L-13.

[84] R. v. Big M Drug Mart 1 SCR 295, at 106 .

[85] Id., at 105.

[86] The Supreme Court of South Africa drew a distinction between the Canadian case and a law prohibiting the sale of liquor on Sunday (the Liquor Act), claiming that the latter does not represent a violation of freedom of religion (S. V. Solberg # 1997). To our view, the claim that the above Canadian law has a “purely religious purpose” while the South African law has no intention “to promote any specific religion” (id. at 87) is not convincing. On one hand, both cases deal with laws that draw upon the importance of Sunday in the Christian tradition, and seek to express this importance on the public level. On the other hand, in neither case is anyone being coerced to participate actively in any religious ritual, or to maintain religious beliefs in which he does not believe; in this sense, his freedom of conscience is not being violated.

[87] See especially the quotation of section 27 of CAN. CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms), requiring that it be interpreted in such a way as to respect and promote “the multi-cultural tradition of Canada” (id. id.).

[88] To our view, the State cannot and should not be neutral concerning different views of what is good. See, in this direction, Raz, supra note 42, ch. 5, and at length in George Sher, Beyond Neutrality (1997).

[89] For broad criticism of this ruling, see Von Heyking, supra note 8, section IV, claiming that the ruling demonstrates that the Court perceives itself as “a secularizing force in society”, while ignoring the importance of religion and the religious character of Canadian society (id., at 677), in which 90% of citizens state that God is “important” or has become “more important” in their lives, and more than a third of children under the age of 12 attend religious prayers at least once a month (id., at 669).

[90] Reynolds v. United States, 98 U.S. 145 [1878].

[91] C.f. the ruling of the U.S. Supreme Court that coercing a public servant to declare his belief in God is a contravention of freedom of religion. See Torcaso v. Watkins, 367 U.S. 488 [1961].

[92] In light of all of the above, we reject the claim of the President of the Israeli Supreme Court, Aharon Barak, in the Shavit case, according to which the “severe and real” violation of human dignity entailed by any limitation addressed in the ruling “is made more grave when its motive is what is perceived by the victim to be religious coercion” (supra note 74, at 653). If the motive of the legislator or the administrative authority indeed influences the degree of violation of dignity, it is unclear why a religious motive exacerbates the violation in comparison with other motives. (One could actually think of an argument that would substantiate the opposite conclusion – i.e., that a religious motive would diminish the degree of violation: if the secular person understands that a certain limitation arises from religious considerations, he may relate to it with greater understanding, with the knowledge that the limitation emanates not from any negative intent but rather from the dictates of the conscience of the religious legislators or administrative personnel.)

[93] The claim to contravention of the Constitution relies either upon a certain interpretation of “the free exercise of religion” as including also freedom from religion, or upon the other part of the First Amendment concerning religion, which forbids institutionalization.

[94] Kent Greenawalt Private Consciences and Public Reasons 132 (1995).

[95] Id. at 157.

[96] Michael J. Perry, Religion in Politics: Constitutional and Moral Perspectives 50-51 (1997).

[97] See also the sources mentioned in supra note 10.

[98] Perry, supra note 96 at 53.

[99] Michael W. McConnell, Politics and Religious Disestablishment, 1986 BYU L. REV. 405, 413.

[100] Lawrence B. Solum, Faith and Justice, 39 DePaul L.R. 1083, 1096 (1990).

[101] Obviously, we do not deny that in general religion also has the potential for conflict, violence and destruction, and the events of September 11th serve as a painful reminder for anyone who may have forgotten this.

[102] Smith calls this rationale for freedom of religion the “Civil Strife Rationale”, and maintains that it should be rejected. See Smith, supra note 59, at 207-210.

[103] This argument is to be found in various forms among various liberal thinkers. See John Rawls, Political Liberalism 212-54 (1993); Cass Sunstein, Beyond the Republican Ideal, 97 Yale Law Journal 1539 (1988); Suzanna Sherry, Enlightening the Religion Clauses, 7 J. Contemp. Legal Issues 473 (1996).

[104] For an extensive and edifying critique of this argument, see Weithman, supra note 12.

[105] This is Perry’s example of such an argument: basing a law against homosexuality on the claim that it is prohibited by the Book of Leviticus. See Perry, supra note 96, at 36.

[106] This discrimination sometimes arouses a suspicion that it stems from real hostility towards religion. For a comprehensive argument concerning such hostility in the Supreme Court of the U.S., see Frederick Gedicks’s provocative and informative article, Public Life and Hostility to Religion, 78 Virginia L. Rev. 671 (1992). See also David M Smolin, Regulating Religious and Cultural Conflict in a Postmodern America: A Response to Professor Perry, 76 Iowa L. Rev. 1067 (1991).

[107] See supra text accompanying note 32.

[108] Following two decades of intensive debate concerning the nature of feelings, it seems that no-one would deny that they have important rational aspects. See, for example, Ronald de Sousa, The Rationality of Emotion (1987).

[109] Such argument had been considered and rejected in Horev, 51(4) P.D. 1.

[110] Levy, supra note 37, at 34.

[111] A. Buchanan, Secession: The Legitimacy of Political Divorce 59 (1991), quoted by Levi, id.

[112] C.f. Justice Tal, who claims that the question of freedom from religion does not arise here at all since “the Minister [of Transport] is not attempting, heaven forefend, to impose Sabbath observance upon the appellants. He is permitting them to travel on the Sabbath to their heart’s content, with a slight limitation during certain hours.” Horev, 51(4) P.D. 1 183.

[113] Supra note 1, at 209-211.

[114] Supra note 17.

[115] Gur-Aryeh v. The Second Commission for Television and Radio, 55(4) P.D. 267 [2002].

[116] Perhaps the company felt, like Chief Justice Barak (supra note 94), that when the motive for restricting its activity is what it perceives as religious coercion, the restriction should be opposed with particular vehemence.

[117] As described by Dorner in section 1 of her ruling.

[118] Supra note 59 , at 225.

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