Secularism, individual rights and democracy: some difficult questions

Presentation to the Humanist Society of Victoria, August 22nd, 2013

Abstract

Secularism is well understood as the political separation of government institutions from religious institutions and the separation of government policy from religious beliefs. It is perhaps less well understood that this does not mean that individuals are excluded from having religious beliefs, but rather that the are relegated to the private sphere of free citizens in association. It is from that basic individual right however that problems can emerge in a political system whereby majoritarian implementations of democracy can (for example) override secular requirements and therefore increasingly the rights of minority religious perspectives (including "no religion").

As a contemporary example this is increasingly an issue in those countries which have experienced the "Arab Spring" where secular dictatorships have had issues in the transformation to a democratic state where conflicts exist between those who have a conception of a liberal, secular, democracy and those who have advocate a more totalitarian and majoritarian democracy; a reverse situation especially with the examples of State-sponsored atheism, which extends even (and often especially) to symbolic representations, often combined with dominant ethnic prejudices.

Mapping a path that that ensures secularism and protects religious freedoms is simple enough when the issues are simple. However there are numerous more complex examples which raise the question on whether they can be reconciled at all. This presentation will look at these more difficult examples, especially in the Australian context of state government religious vilification legislation, and the practice of police and emergency service operations.

Biography

Lev Lafayette is a perpetual student who collects postgraduate degrees with practical intent and an incorrigible trouble-maker who finds himself on various committees that seek to change the world. As an excuse for employment he helps build supercomputers for research scientists.

Part three of this talk is significantly derived from a presentation at the 4D National Conference at the University of New South Wales. Sections on Egypt in part II have been previously published by the Isocracy Network in the paper "Converting The Tyranny of the Majority: The Egyptian Example".

Secularism As A Political Perspective

The principle of secularism, the separation of government from religious institutions, is well known as recognised. What is less well known or understood - although it is probably not the case among those present tonight - is that this separation includes both the right to be free from religious rule and teachings, and the freedom for religious beliefs and practices to the extent that universal legal norms apply. As the United States of America was just finding its feet as an independent country, James Madison famously reminded those that wished for a particular religion to rule the new country may also discover that there were those who wished for a particular denomination:

"Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?" (James Madison, Memorial and Remonstrance against Religious Assessments, 20 June 1785)

It is perhaps notable that those from Protestant dissident sects of the period who had a somewhat visceral experience of the imposition of a "particular sect" of Christianity have become strong supporters of secularism. One only wishes that more contemporary evangelical sects would undertake a more careful review of the history of religious wars. The French Wars of Religion between the Catholics and Protestants from between 1562 and April 1598 left between two and four million dead. The German Thirty Years War of 1618 to 1648 between the same denominational difference saw somewhere between three million and eleven and half million dead, the latter figure representing over two percent of the entire world's population at the time.

Of course, the particular implementation of secularism can vary quite significantly. The devil's in the detail, if that pun can be used. It is the exploration of some of those more difficult implementation issues that are the subject of this evening's discussion. It comes at a time when some, arguing from a rationalist perspective, are earnestly denying the validity of secularism. In June last year, Richard Smyth, writing for the UK Rationalist Society (allegedly a charity dedicated to reason, science and secularism) wrote an article entitled "Down with secularism!" Smyth argues that secularism "compromises democracy ... promotes and rewards hypocrisy and doublethink, ... reflects a crippling failure of imagination on the part of its proponents and it's founded on principles that are cynical, unempathetic and deeply un-humanist."

One dreads to read what he thinks of "reason".

The conclusion of his article is quite illustrative of the problem confronting tonight's presentation: "If I were to be the only atheist in a country otherwise full of Christians, I would want and expect the government to be run on Christian principles. I wouldn’t like it, of course - but that’s democracy."

Earlier this month, Ian Pollock, on the 'blog "Rationally Speaking" poses the question "Is secularism unprincipled?". Again the relationship between secularism and democracy is raised with the following thought experiment: "Suppose I believe that 2015 will be the beginning of the End Times, when the world will be consumed in a great war involving all countries. Is this a religious question? Not for me. It’s a practical question: I already started buying the cans of lentils for my bomb shelter.... Suppose further that enough of the population agrees with me that they elect me Prime Minister. On what earthly basis can I “take no position” on the question of the End Times because it’s a "religious question"? Am I to abandon my country to the massacre and famine I know is coming?"

My own response to Pollock is that unless secular reasons can be provided, then such beliefs still have no role in public discussion or for contingency plans by public organisations. To his credit Pollock does give an excellent summary of what it means to be secular. "The modern secular movement is committed to two main principles: (1) religions are welcome to participate in moral and political debate in the public sphere, so long as they use language and arguments that are at least in principle accessible to all participants in the public sphere; (2) the state may not endorse any one religious perspective over any other."

In George Holyoake's coining of the term, he noted that secularism wasn't an argument against religious beliefs, but an argument independent of it. "Secular knowledge is manifestly that kind of knowledge which is founded in this life, which relates to the conduct of this life, conduces to the welfare of this life, and is capable of being tested by the experience of this life." It is the sort of knowledge and discourse and institutionalisation that a person of strong religious beliefs can be just at home as one with none whatsoever; because we do live in a shared reality, regardless of our metaphysical assumptions. This should be enough to illustrate what should be the preconditions of the public institutions and the formation of public opinion.

Where Secularism and Democracy Collide

But this of course, is not the case, even in countries which are nominally secularism, whether they are of the liberal-democratic or of the authoritarian-dictatorial variety. By way of illustration in the former example, consider the the example of the French law on on secularity and conspicuous religious symbols in schools, which was concerned primarily with symbolic rather than moral issues with a hefty dose of ethnic prejudice. This ban, whilst not mentioning any particular religious symbol, was wide enough in scope to cover Christian crucifixes, Sikh turbans, and Muslim head scarves worn by students. Expressed as an apparent enforcement of the separation of church and state the prohibition was specified on the display of religious affiliation in publicly funded schools. It should be noted that technically that if one wears the symbolically not a form of religious identification, then the law would not apply - such as Muslims wearing crucifixes, Christians wearing the kippah, and atheists wearing turbans. One may ask what role does a secular government have in deciding whether a symbol is religious, and whether the person wearing a particular symbol is advocatig a particular religious belief or not? This, strictly speaking, is not secularism at but an anti-religiousl law. As a ironic consequence of the law there has been increasing number of Islamic secondary schools established.

To provide an examples of the clash between secular authoritarianism and religious democratic majoritarianism, the examples of the conflicts in contemporary Egypt and Syria can be cited. In both these associated cases, authoritarian, but somewhat secular (at least on a continuum for the region) governments have come into conflict with pro-democracy forces that argue for majority rule, and by that many mean religious rule. Although in both cases, one hastens to add, that the support for secular democracy in both these cases remains very high. What was experienced in Egypt was certainly a case of the tyranny of the majority, albeit of a very slender result. Mohamed Morsi was elected President with 51.73% of the vote against a candidate associated with the previous regime. The following month Morsi signed into law a new constitution, which had been approved by the Constituent Assembly at the end of November, and followed a referendum held between the 15th and 22nd of December. Whilst passed with almost 64% of the voting public, the turnout was a mere 32.9%; this is not the basis to form an inclusive democracy.

The new constitution did contain some provisions against torture and arbitrary detention, it confirmed the excessive powers of the President, failed to ensure civilian trials, or protect freedom of speech and religion. Islamic law was established as "the main source of legislation". Where rights were provided they were typically with the caveat that they would not contradict ambiguously worded provisions, such as the preservation of "the true nature of the Egyptian family", or ensuring the protection of "ethical and morals and public order". Freedom of expression was allowed but without prohibitions on "insults" to the person or to the prophets. Freedom of worship was allowed for Muslims, Christians, and Jews - but with no protection for other religions or for those of no religion. Media freedom was allowed as long as it did not "contradict the principles on which the state and society are based". Women were apparently free from discrimination and would be granted equality, within "the provisions of Islamic Sharia". In other words, almost every time there was a civil right, it was effectively prevented by an ambiguity which revealed an Islamicist force.

How does one ensure secular, individual, and civil rights are protected in a democracy? A classic response, and serves as an antidote to Smyth's concern of an atheist in a Christian country, is that of constitutional protections. But constitutions themselves, those lasting documents whose strength ensures the health and survivability of a governing system, can be determined and altered through democratic means. In order to prevent a majoritarian (or even a highly organised minority with sectional interests) hijacking a democracy, a number of carefully considered solutions have been proposed and implemented in the enduring liberal democracies which have proven effective. There is Montesquieu's recommendation of a separation of powers with checks and balances between the executive, the legislative, and the judicial. Another method has been to limit the role of governance to the res publica, the public sphere, leaving the rights of individuals as an explicitly protected space. Other methods include the requirement for a qualified majority for the most important of legislative changes, especially changes to a constitution.

Secular and Individual Rights : Some Australian Examples

The question is raised on whether Australia fits the model of a secular, isocratic, democracy where there is level of governmental agnosticism in policy along with religious pluralism. How does Australian governments deal with issues where secularism, individual rights, and democracy come into conflict? In making this initial attempt of review - and it certainly must be expanded beyond these examples - the Weapons Amendments Act of various states governments which allows Sikhs to lawfully wear a Kirpan, the publication "A Practical Reference to Religious Diversity for Operational Police" ("A Practical Reference"), and the Racial and Religious Tolerance Act of 2001 ("the Tolerance Act") in Victoria. Before engaging in reviews of these examples however a factual overview of religiosity in Australia as defined in the Australian constitution. Whilst the Australian Constitution does not have a Bill of Rights which explicitly protects freedom of religion (and indeed, a referendum in 1988 rejected such a protection by an overwhelming majority), and does include a clause (Section 116) of the Constitution prohibiting the Commonwealth (and only the Commonwealth) from making any law establishing a religion, for imposing any religious observance, prohibiting the free exercise of religion, or imposing religious tests.

Like many Australian states, the public carrying of potential weapons offensively without reasonable excuse is generally prohibited. This raised concerns for Australia's Sikh community where the wearing of the Kirpan, a curved (and typically blunted and often concealed) dagger secured in a cloth sash, is considered to be one of the five articles of the Sikh faith and is never meant to be worn as an aggressive representation. As a result, the Queensland government in 2011 made an exemption that explicitly stated that a member of a religion may physically possess a knife for genuinely religious purposes. A similar sort of exemption applies to the Victorian Control of Weapons Act 1990 and the South Australian Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000. Note that these modifications are particular to the ceremonial expression. In all cases, aggressive threats made with such a weapon would not constitute protection. What is in fact being done with such amendments is the specifying of a "reasonable excuse" which has hitherto covered other activities, such as the use of such potential weapons in employment (a butcher's cleaver), recreation (a fishing knife), entertainment (a theatrical performance), a sport (a fencing club), an association (a historical knife-collectors club), museums or personal heirlooms. Thus the modification of the law, which was of course very important for Sikhs, has been conducted in a manner that is consistent with the non-religious exemptions.

The second example is the Victorian government's Racial and Religious Tolerance Act of 2001. The Tolerance Act, like other similar legislation, sought to promote racial and religious tolerance in a multicultural democracy by prohibiting the vilification of persons on the basis of their race (broadly defined to include genetic cline, nationality, or ethnicity), or their religious belief and activity. There have been two major cases relating to the Act, the first ruling concerning an action by the Islamic Council of Victoria against Catch the Fire Ministries, and the second by a Wiccan prisoner against the Salvation Army who, the plaintiff claimed, "posed a danger to his safety" and whose "Alpha Christianity" course was discriminatory. The second case was quickly rejected and likewise it will be done so here. In the first example, an initial ruling at VCAT found that the Act had been breached. Attracting international coverage and a campaign and funding from the interfaith Becket Fund for Religious Liberty in the U.S. and appeal to the Supreme Court put aside the original ruling.

The core problem with the Act is the intentions do not match the content. Racial and religious vilification are right condemned by people of moral integrity. But the Act does not prevent this. To clarify, to vilify is to defame or slander and it is a great weakness of the many laws relating to defamation and slander that whilst individuals and legal persons (such as associations, corporations) may seek redress for damages sustained by such speech or writings, individuals defamed or slandered on the basis of their membership to a social group (e.g., be it a nationality or religion) could not. Rather the legislation prohibits "conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons", regardless of their veracity. That ridiculing fundamentalist sects who claim that those who work on the Sabbath should be put to death, or that homosexuality is an abomination equal to eating prawns, or that the Earth is actually flat, or the universe was created in October 4004 BC, and God's language is King James English is outlawed. Such expressions that these statements are ridiculous or contemptible may offend some people; but in reality it is only offensive speech that will ever need defending for inoffensive speeches are never condemned. What is important is which truthful offensive speeches is defended, even by those with poor motives, for it is only be grappling with the truth can their partiality and context be admitted and the sum of human knowledge be improved. In this particular example universal secularism has been trumped by the sensitivities of religious particularism and as a result of the first case, the Victorian HREOC (which bring cases to VCAT) has not initiated any further legal action under the Act.

Although having a relatively small percentage of the population expressing a non-Christian religious identity, and an somewhat larger number representing a non-Anglophone first language cultural background (around 25%), the Australian government established an Australasian Police Multicultural Advisory Bureau (originally called the National Police Ethnic Advisory Bureau) in 1990. Express concerns at the time emphasised the need for professionalism, community partnership, and a focus on newly settled and emerging communities for preventative action. The Bureau has issued both awards for contributions in these fields, along with issuing several publications of which "A Practical Reference" is one; others include "Recruitment from Ethnic Communities", "Guidelines for Organisers of Cultural Events", and "Policing in a Culturally Diverse Australia". This guide covers both cultural and religious differences concerning oaths, gender roles, physical contact, behaviour at places of worship, and symbolic expressions. Following a nationwide survey in 1999, operational issues in relating to religious behaviours were identified with the publication of the first edition of the Practical Reference, with sponsorship from a variety of multicultural organisations. Subsequent editions have been published, expanding the religious scope, and a version has also been published in New Zealand.

Much of the content of the the Reference provides an historical and theological overview of the different faith traditions in order to provide a least a basic awareness for operational staff. The Reference does identify where religious tradition conflicts with secular legal norms, and notes for operational staff that the latter must have priority. For example for indigenous Australians autopsies are usually not permitted, however for some states and territories they are mandatory. However, the protocols do recommend minimising these conflicting operations to the extent required by law and below what typical practises may indicate. To continue with the same religious example, the Reference notes that the taking of photographs may be perceived in some traditions as an ingredient for sorcery and thus should be avoided. This operational principle continues throughout the guide; particular religious days and ceremonies are noted as being perhaps not the best to demand interviews, hats should be removed when entering most Christian Churches, footwear is not worn in Hindu prayer rooms, a male officer should generally avoid speaking to an Islamic woman without a male relative present, and so forth. In each of these cases the protocols of activity are respectful of religious traditions in a manner that does not conflict with secular law. Thus a situation is promoted that, when applied, which genuinely indicates religious pluralism as the operational activity is explicitly engaging with the religious community, but also which recognising that the legal outcome must be based on a legal framework common to all faiths.

Conclusion

There is a historical tendency towards multiculturalism and religious pluralism for technological and economic reasons which is unlikely to be prevented in the longer term, and indeed, ought to be encouraged. However there is also a tendency within the advanced liberal democracies to adopt a form of legal pluralism to adapt to religious diversity under the guise of post-secularism, which in reality is simply a truncated diverse form of pre-secularism. Contemporary criticisms from rationalists and Islamicists against secularism as being anti-democractic are only substantiated within the perspective of that most limited interpretation of democracy which is based on majoritarian authority, rather than the principles of equal rights and the proportional admixture of ideas that one finds in an isocratic approach. Particular forms of constitutional protection can be incorporated to ensure lasting civil rights for all and governance which, true to the word, does not seek to interpret religious expressions, whether symbolic or otherwise, but rather engages in a respectful addition to processes within secular legal norms. In such a manner, the individual and civil rights are protected against a tyranny of the majority, the religious beliefs of individuals and communities are protected, and the social body as a whole, engages in a public opinion formation on criteria that are based solely on experiences that are universal to all.