Part III | Expanded Analysis
Category B | Principles
Topic 7 | Avoiding statism
A commitment to religious freedom can help avoid statism, the belief that all rights exist only after the state enacts rights. Both the U.S. Declaration of Independence and the Universal Declaration of Human Rights are grounded in the idea that certain fundamental rights are inherent and unalienable to the human person. The state does not create or bestow these rights; rather, it enacts laws to recognize, promote, and protect fundamental rights that people already possess by virtue of their being human. One of these unalienable constitutional and human rights is the right to freedom of religion.243
Dualism v. monism/statism
Speaking generally, the state’s relationship with the people—its power, jurisdiction, and authority—can be structured according to one of two antithetical frameworks: dualism and monism.
Dualism is the idea that the state’s domain over our lives is subject to limits that lie beyond the state itself. In a dualist system, individual liberty or unalienable rights exist apart from the state, are not bestowed by the state, and do not depend on the state for recognition. The state is justified and maintains legitimacy based largely on the extent to which it respects and protects such rights. It follows, then, that state power is subject to specific limitations in relation to these rights.
The response Jesus gave to the Pharisees when asked whether paying taxes was lawful reflected an understanding of a dualist regime: “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.”244 In other words, states have authority to make certain claims on us, but God’s divine authority makes other, independent claims.
Dualism is embodied in various types of governing systems that do not grant official status to churches, including governments that facilitate funding of certain churches (e.g., Germany, some Latin American countries); accommodate some public religious practices and displays (e.g., Australia, the United States); maintain a stricter wall of separation between religion and state (also, e.g., the United States); and maintain separate religion-state spheres through a strong commitment to secularism (e.g., France).
The key questions in a dualist system regarding religious freedom is What are the proper boundaries between religion and the state? Between conscience and state power? And between individuals’ unalienable rights and the state’s legislative and regulatory demands?
Monism poses few such questions about the limits of state power, authority, and jurisdiction. Under monism, rights are gifts bestowed by the state on individuals—gifts that can be taken away as well as given. In monist systems, the state does not derive legitimacy from its respect for individuals’ rights; rather, the state claims de facto legitimacy in restricting rights. Monism is embodied in various types of statist systems: governments that form strong alliances with one religion (e.g., present-day Russia and India), strictly control religion (e.g., China), strictly limit religion (e.g., the Soviet Union), or seek to abolish religion entirely (e.g., Soviet-era Albania).
Dualist frameworks: U.S. Declaration of Independence, U.S. Constitution, and Universal Declaration of Human Rights
The U.S. Declaration of Independence, the First Amendment of the U.S. Constitution, and the Universal Declaration of Human Rights (UDHR) are all grounded in the idea that certain fundamental rights are not bestowed by the state but rather are inherent and unalienable to the human person.
The Declaration of Independence affirms,
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . ." 245
In sum, certain rights are God-given, and the government has power to secure these rights only by consent of the people.
The First Amendment of the U.S. Constitution, in its Free Exercise and [Non-]Establishment Clauses, reflects this dualist philosophy and institutes a dualist framework: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The First Amendment’s (1) prohibition of a state church and (2) guarantee of the free exercise of religion limits state power in significant ways. In some ways, these articulations of a dualist understanding of state power by U.S. founding figures were their reaction to the paternal, monistic tendencies of the English monarchy.
Not dissimilarly, the post–World War II human rights project that culminated in the Universal Declaration of Human Rights was a reaction to the extreme state monism of the Nazi regime, where state power trumped conscience and where the government invoked emergency powers to overcome claims to political and civil rights.
The preamble of the UDHR states that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” 246 This recognition reflects the dualist intuition that certain absolute interests exist and are weighty enough to constitute inalienable rights—rights the state is obliged to respect and protect.
Article 1 of the UDHR declares further, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”247 Again, this asserts a dualist reality that places limits on the state’s authority. People are born into the human family in possession of fundamental rights. These rights arise from our inherent individual dignity and agency, not from state recognition. Article I posits that the dignity, agency, reason, and conscience with which we are naturally endowed should guide our actions toward our fellow members of the human family who are similarly endowed; this responsibility exists at both the individual and institutional or state level.
Consequences of monist/statist and dualist regimes
As discussed above, both monism and dualism are embodied in various types of government systems, resulting in varying levels of religious freedom. Even given this variance, some general consequences tend to follow the implementation of monist/statist or dualist regimes.
For example, under statist systems with high levels of government restrictions on religion, discrimination against religious minorities tends to increase.248 Statist systems that maintain a close alliance between a favored religion and the state tend to result in, at minimum, unequal treatment of other religious groups.249 Furthermore, religious freedom historically is part of a bundle of associated rights, such as rights to freedom of speech, freedom of the press, freedom of assembly, and freedom of association, as well as the right to petition the government.250 Due to this relationship, states with laws that permit a high degree of government control over religion will often feature a high degree of government control over these other important civil rights. Conversely, due regard for religious freedom in a state’s laws will tend to diminish government control over social and economic affairs more generally.251
Given these consequences, it follows that recognition of and strong commitment to dualism in a state’s laws, policies, and practices can help uphold and protect religious freedom. Conversely, a strong commitment to religious freedom reflected in a state’s laws, policies, and practices helps strengthen dualism and avoid statism.
Monist/statist v. dualist views of religious exemptions
Many today argue against religious freedom as exercised through religious exemptions to civil rights protections. They maintain that “[r]eligious exemptions to the protections of civil rights based upon classifications such as race, color, national origin, sex, disability status, sexual orientation, and gender identity . . . significantly infringe on these civil rights.”252 However, the strong insistence on nondiscrimination—and the wholesale rejection of accommodations or exemptions for those with conscientious objections to a legal mandate—reflects a monist/statist view.253
Dualism posits that societal interests like nondiscrimination and the rule of law can be maintained while allowing for exemptions related to conscience. It maintains that religious exemptions are not a sanction to avoid laws under the guise of one’s religion. Even when accommodations or exemptions from laws are made on the basis of religion or conscience, these are within the framework of lawfulness and do not amount to claimants becoming a law unto themselves. Accommodations and exemptions can be made that honor and uphold the human rights and dignity of both those with religious interests and those with nondiscrimination interests.
Conclusion
The intellectual resources for a dualist understanding of limited state power are rooted, historically and intellectually, in religious ways of viewing the world. Thus, a robust protection of the right to religious freedom, and its associated rights, can help foster dualist understandings and government systems that, in turn, honor and uphold unalienable human dignity and human rights.
References
243. A principal source for Toolkit Topic 7 (Avoiding statism) is Brett G. Scharffs, Why Religious Freedom? Why the Religiously Committed, the Religiously Indifferent and Those Hostile to Religion Should Care, 2017 BYU LAW REVIEW 957 (2018), https://digitalcommons.law.byu.edu/lawreview/vol2017/iss4/10. Some direct quotes from this source are not indicated with quotation marks.
244. Mark 12:16–17 (KJV); see also Matthew 22:21 (KJV).
245. The Declaration of Independence (U.S. 1776) (emphasis added); see Declaration of Independence: A Transcription, NATIONAL ARCHIVES: AMERICA'S FOUNDING DOCUMENTS, https://www.archives.gov/founding-docs/declaration-transcript (last visited Dec. 2024).
246. Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, art. 1 (1948), https://www.un.org/en/about-us/universal-declaration-of-human-rights (last visited Dec. 2024).
247. Id.
248. See, e.g., SAMIRAH MAJUMDAR & SARAH CRAWFORD, PEW RESEARCH CENTER, GLOBALLY, GOVERNMENT RESTRICTIONS ON RELIGION REACHED PEAK LEVELS IN 2021, WHILE SOCIAL HOSTILITIES WENT DOWN (Mar. 5, 2024), https://www.pewresearch.org/wp-content/uploads/sites/20/2024/03/PR_2024.3.5_religious-restrictions_REPORT.pdf (discussing government restrictions on, harassment of, and displacement of religious minorities in Afghanistan, Egypt, India, Myanmar, Nigeria, Pakistan, and other states that have high levels of restrictions on religion); U.S. COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM, 2024 ANNUAL REPORT OF THE U.S. COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM 22 (May 2024) [hereinafter USCIRF 2024 ANNUAL REPORT], https://www.uscirf.gov/sites/default/files/2024-05/USCIRF%202024%20Annual%20Report.pdf (discussing, for example, China’s persecution of Uyghur Muslims).
249. See, e.g., USCIRF 2024 ANNUAL REPORT, supra, at 42 (discussing the Russian government’s harassment and discrimination against Jehovah’s Witnesses, Muslims, Jews, and other minority religions while granting special status to the Russian Orthodox Church); W. COLE DURHAM, JR. & BRETT G. SCHARFFS, LAW AND RELIGION: NATIONAL, INTERNATIONAL, AND COMPARATIVE PERSPECTIVEs 131 (2d ed. 2019) (noting that while “Spain successfully made the transition from an authoritarian state-church system to a democratic cooperationist regime,” it has retained “residual ‘endorsed church’ characteristics,” and “the intended upward equalization [of religious groups] does not always trickle down to the full range of smaller religious groups”).
250. In the United States, these rights are articulated or “bundled” together in the Constitution’s First Amendment. See Scharffs, Why Religious Freedom?, supra, at 960–61.
251. See generally MAJUMDAR & CRAWFORD, supra. See also Christos Andreas Makridis, Human Flourishing and Religious Liberty: Evidence from over 150 Countries, 15 PLOS ONE, Oct. 1, 2020, at 11, 20–21, https://doi.org/10.1371/journal.pone.0239983.
252. Commissioner Peter Kirsanow Statement, in U.S. COMMISSION ON CIVIL RIGHTS, PEACEFUL COEXISTENCE: RECONCILING NONDISCRIMINATION PRINCIPLES WITH CIVIL LIBERTIES 42, 108 (2016), https://www.usccr.gov/files/pubs/docs/Peaceful-Coexistence-09-07-16.PDF.
253. Scharffs, Why Religious Freedom?, supra at 976–80.