Does the right to religious freedom protect girls who wear religious dress to school, bakers who refuse to write messages in support of same sex marriage on cakes, parents who support corporal punishment of their children in schools, airline employees who wear visible crosses, members of the armed forces who proselytise to lower-ranking officers, and those who detain their family members to undo the influence of a ‘cult’? These questions hang on a more fundamental one: why protect religious freedom?
A common answer is that the freedom to make choices on religious matters contributes to personal autonomy, the ideal of controlling, creating, authoring or shaping your own life. The jurisprudence of the ECtHR and British courts, as well as scholarly commentary, reflect this rationale. In Jehovah’s Witnesses of Moscow v Russia  ECHR 887, para 134, and in Kokkinakis v Greece  ECHR 20; (1994) 17 EHRR 397, the majority’s description of religious freedom reflected the autonomy rationale. The House of Lords has endorsed the Canadian Supreme Court’s explicitly autonomy-based approach in Syndicat Northcrest v Amselem  2 SCR 551; 2004 SCC 47. Baroness Hale’s judgment in R (Begum) v Headteachers and Governors of Denbigh High School  UKHL 15 was clearly premised on autonomy being the primary rationale for religious freedom.
I aim to unsettle the preeminent status of autonomy as a rationale for religious freedom. I will argue that autonomy does not count in favour of the full range of protection currently offered by the right in liberal states. This is because of tensions between autonomy and religious belief, practice and proselytism. I focus on two such tensions which have unappreciated implications for religious freedom jurisprudence. The first stems from the manipulative nature of some modes of religious proselytism. The second tension stems from the resistance of some religious beliefs to revision.
1. Manipulative proselytism
In liberal jurisdictions, the right to religious freedom (including in article 9 of the ECHR) includes the freedom to proselytise. However, as currently interpreted, the right protects manipulative methods of proselytism which harm autonomy.
If you are manipulated, the thoughts, aims and desires that result from the manipulation are not yours, but your manipulators’. You are ‘a puppet on a string’ or ‘putty in another’s hands’. Having your life shaped by someone else is clearly inconsistent with autonomy.
What is the upshot of this for the protection currently offered to religious beliefs and practices under the ECHR? Article 9 is taken to protect against manipulative proselytism by the state. The ECtHR has also voiced concern about certain kinds of proselytism by non-state actors. In Kokkinakis v Greece  ECHR 20 for instance, the Court held that Article 9 does not protect ‘improper proselytism’ as opposed to ‘Christian witness’ and ‘true evangelism’, but chose not to define ‘improper proselytism’. It offered little guidance on the protection extended to manipulative proselytism. The Court avoided the issue even in a case like Riera Blume v Spain  ECHR 90, clearly about manipulative proselytism, involving the ‘deprogramming’ of members of a so-called sect.
Against the context of the Court’s reluctance to address the status of manipulative proselytism, its decision in Vojnity v Hungary  ECHR 131 on manipulative proselytism of children is significant. The case involved a father who domestic authorities and courts had described as engaging in ‘heavy-handed proselytism’ directed to his son, and as ‘forc[ing] his beliefs on his son’ to the point of endangering his development. The ECtHR stressed that parents have the right to proselytise to their children ‘even in an insistent or overbearing manner’. The Court therefore concluded that ‘protecting the child’s psychological health from the purported stress exerted by the [father’s] intensive efforts to transfer his [religious] convictions to him’ did not ‘qualify as a … weighty reason’ sufficient to justify the differential (and less favourable) access rights accorded to the father.
So ECHR jurisprudence protects religious proselytism – including manipulative proselytism of children by parents, and possibly manipulative proselytism more generally – that cannot be supported by the autonomy rationale.
B. Resistant Beliefs
The second tension which unsettles autonomy’s place as the rationale for religious freedom stems from the resistance of some religious beliefs to revision. Psychological studies suggest that some beliefs are highly resistant to revision. Such beliefs may relate to climate change, prejudices and stereotypes as well as religion. Seminal studies suggest that there is strong resistance towards changing some (not all) religious beliefs, even when faced with discrediting information.
Religious freedom jurisprudence does not currently make a distinction between resistant and non-resistant beliefs in protecting beliefs, and practices based on them. But autonomy requires that we have the ability to revise our beliefs. It requires
that people are capable of exposing each of their beliefs…to appropriate tests, especially in the event of problems arising, and that whether or not they maintain such a commitment depends on how it fares in the tests… People are autonomous in virtue of what can be – in virtue of what they can do in checking their beliefs.
We are less the authors of our own lives to the extent that we are shackled to our beliefs. There is little potential for autonomy gain from the protection of resistant religious beliefs. Autonomy is thus an inapt basis for their protection.
Moreover, resistant religious beliefs stand in the way of an important pre-condition for autonomous action: identification. Autonomy requires that we identify with the beliefs or desires we act upon; that we endorse a belief or desire and accept it as part of ourselves. We do not act autonomously when we do not identify with our beliefs, and when we are instead driven and motivated by beliefs and desires which we disown, hate or detest.
Resistant religious beliefs often hinder people from shaping their lives based on the beliefs and desires with which they identify. Resistant religious beliefs often hinder them from doing what they truly want to do. Consider this example.
Sal has, over time, developed strong concerns about climate change. Climate change activism pervades her most fundamental desires and beliefs, and she strongly identifies with these desires and beliefs. At the same time, Sal has resistant religious beliefs inculcated in childhood, that require her to perform climate-unfriendly actions (involving e.g. long distance travel and meat eating). Since they are resistant, these religious beliefs do not change despite their tension with the central place of climate change activism in Sal’s life. In the rare moments when she reflects on this tension, she acknowledges to herself that her religious practices are problematic (by the lights of the climate change desires and beliefs with which she identifies). Yet she continues to engage in the religious practices.
Psychological studies suggest that situations like Sal’s are not unusual. Sal’s resistant religious beliefs stand in the way of her adopting the climate-friendly lifestyle which she desires, and with which she identifies. Ultimately, the resistance of her beliefs has a significant and far-reaching effect on her autonomy. The protection of such beliefs from state interference would not enhance her autonomy.
Since religious freedom jurisprudence does not currently make a distinction between resistant and non-resistant beliefs, protecting both equally, the autonomy rationale does not support the breadth of protection offered by current religious freedom jurisprudence. More generally, the prevalence of resistant religious beliefs which are obstacles to autonomy unsettles the growing consensus around the status of autonomy as the primary rationale for religious freedom.
Given these arguments, two measures are necessary in order for courts to continue to coherently treat autonomy as a rationale for religious freedom.
First, the jurisprudence on manipulative proselytism must change. Commentators have in the past appealed to the autonomy rationale to extend the protection offered to religious beliefs and practices. This post instead appeals to the autonomy rationale to restrain the protection of religious beliefs and practices. For example, the text of Article 9(2), which permits certain limitations on religious freedom including to protect the rights and freedoms of others, could be used to preclude the protection of manipulative proselytism. The distinctions drawn by the court in Kokkinakkis between proper and improper proselytism could be developed to track the distinction between autonomy-neutral and autonomy-diminishing proselytism. The suggestion in Vojnity v Hungary  ECHR 131, para 37, that parents do not have the right to proselytise to their children in a way that exposes them to ‘psychological harm’ might serve to restrict parents’ rights.
Second, autonomy must be supplemented with other rationales for the protection of resistant beliefs. These might include the value of faith, the futility of religious coercion, the importance of finding religious truth, the need to prevent religious conflict, or the idea that religious freedom is necessary to protect conscience, understood as the faculty with which people discern moral duties. If these two conditions are met, autonomy can retain a diminished justificatory role as part of a composite rationale for religious freedom.
While this post focusses on religious freedom, the points made here have significance for other liberal freedoms. Neither manipulation nor resistance is unique to religion. Manipulative methods, including manipulative speech, may be used to inculcate non-religious beliefs, as in Communist ‘thought reform’. And people may hold resistant beliefs that are not religious, but are about, e.g. climate change. Are such methods (particularly manipulative speech) and beliefs protected by liberal rights relating to expression and political belief? If so, can we be confident that such protections support autonomy?
I develop the arguments in this post in a paper in the Modern Law Review.
Farrah Ahmed is an Associate Professor at the Melbourne Law School, University of Melbourne.
(Suggested citation: F. Ahmed, ‘The Autonomy Rationale for Religious Freedom’, U.K. Const. L. Blog (5th Apr 2017) (available at https://ukconstitutionallaw.org/))