Equality versus Freedom?

On February 23, 2012, in contraception, Helen Alvare, Religion, by Betsy

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First published February 23, 2012, at thepublicdiscourse.com.
Lawmakers must look past the “equality versus religious freedom” standoff, and consider the substantive merits of each particular case.

I recently had the opportunity to comment upon Professor Roger Trigg’s Equality, Freedom, & Religion (2012), courtesy of Professor Thomas Farr’s Religious Freedom Project at the Berkley Center for Religion, Peace, and World Affairs at Georgetown University. The book perfectly captures an essential dynamic of the current struggle for religious freedom not only around the world, but playing out in Washington, D.C., right now over the administration’s insistence that religious institutions buy insurance coverage for their employees covering abortion-inducing drugs, contraception, and sterilization.

The book’s thesis is deceptively simple: demands for legal “equality,” “human rights,” and “non-discrimination” are regularly permitted to trump religious freedom. This dynamic is widespread, and is proceeding without reflection upon any of the following: humans’ intrinsic need for religion, national religio-cultural heritages, and religion’s role in provoking a taste for human equality in the first place.

Trigg’s proposal, with which I wholeheartedly agree—and which provides a very fruitful path for addressing the current fight between religious institutions and the President—has several aspects. First: cease assuming that every claim for equality or non-discrimination trumps any claim for religious freedom. Religious freedom is at least worthy of equal regard. This is true not only on the grounds of the privileged place religious freedom holds in both national and international documents. Rather, it is even possible that human beings are hard-wired to search out the answers to their questions about transcendent things. Trigg’s material on the cognitive science of religion is a valuable addition to the proposition that religious freedom is important, given our commonsense understanding about how a search for ultimate meaning must be closely bound up with human flourishing.

Second: acknowledge that there have existed particular religious claims or practices which are problematic regarding human equality or flourishing. One here might think of genital mutilation or polygamy, or the burning of widows on their husbands’ funeral pyres.

Third: note, however, that there are also times when claims for equality are nothing more than special interest pleading about “wants” dressed up in the language of needs or even the lofty language of “human rights.” (John Witte has observed the phenomenon of “creeping” human rights as well, in his “A Short History of Western Rights” in God’s Joust, God’s Justice: Law and Religion in the Western Tradition, 2006). One can see this phenomenon at work, for example, in an opinion letter of the Equal Employment Opportunity Commission in 2000 claiming, ultimately unsuccessfully, that access to prescription contraceptives is a matter of gender equality under the Civil Rights Act. An employer refusing contraception and sterilization insurance coverage to employees of both sexes is clearly not engaged in gender discrimination. Nor is women’s equal dignity and access to education, work, or other opportunities grounded in her employer’s providing her with cheaper contraception.

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