Keith Mack
The relationship between law and religion is a contentious issue, with some arguing that laws based on religious beliefs are discriminatory and not secular. In the US, the First Amendment prohibits the government from making laws that infringe on religious freedom and the Supreme Court has interpreted this to mean that the government cannot regulate religious beliefs, only overt acts prompted by religious beliefs or principles. Despite this, more than a dozen US states have passed or considered religious liberty laws, which have been criticised for discriminating against the LGBT community. For example, in Mississippi, a bill was passed allowing businesses to refuse service to gay couples based on religious beliefs. In contrast, secular states do not formally adopt a particular religion and may enforce tolerance of religious diversity.
| Characteristics | Values |
|---|---|
| Religious laws in the US | More than a dozen states have passed or considered "religious liberty" laws |
| Effect on the LGBTQ+ community | Many laws directly affect the lesbian, gay, bisexual and transgender community |
| Support for religious laws | Supporters argue that the bills protect religious beliefs |
| Criticism of religious laws | Critics say that religious laws are discriminatory |
| Religious laws and personal conviction | Religious laws are based on personal conviction, which some argue is no different from atheistic laws |
| Religious laws and secularism | Religious laws contradict the principle of secularism, which is unrelated or neutral in regards to religion or irreligion |
| Religious laws and morality | Religious laws are often based on morality derived from religious texts |
| Religious laws and dangerous loopholes | Religious laws can create dangerous loopholes, where people may use religion to put themselves above certain laws |
| Religious laws and politics | Religion is politicized in the US, despite the separation of church and state |
| Religious laws and the economy | Religion is tied to the US economy, which gives it a free pass in lawmaking |
| Religious laws and oppression | Religious laws have been linked to oppression, particularly in the case of same-sex marriage |
| Religious laws and education | Religious laws can impact education, such as in the case of teaching evolution in public schools |
| Religious laws and freedom of belief | The First Amendment prohibits governmental regulation of religious beliefs, protecting freedom of belief |
| Religious laws and conduct | Religious laws may regulate religious conduct, such as in the case of ministers serving as delegates |
| Religious laws and conscience | In some religious jurisdictions, individuals follow laws based on their conscience, understanding, and reasoning |
| Religious laws and diversity | Secular states may enforce tolerance of religious diversity, while religious states may repress all religious activity |
| Religious laws and text | Religious laws are based on interpretations of religious texts, such as the Old Testament, Gospel, and Talmudic literature |
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What You'll Learn
Religious laws in the US
The First Amendment to the US Constitution guarantees the free exercise of religion, which has been interpreted by the courts to mean that religious laws cannot be passed that would infringe on this right. However, this has not prevented more than a dozen states from passing or considering "religious liberty" laws, which have sparked controversy and protests. Many of these laws directly affect the lesbian, gay, bisexual, and transgender community, with critics arguing that they are discriminatory.
For example, in Mississippi, Governor Phil Bryant signed a bill that allows businesses to refuse service to gay couples based on religious beliefs. Similarly, in North Carolina, a law was enacted that bars its cities and counties from having their own anti-discrimination rules, effectively allowing businesses and government employees to refuse service to individuals based on their religious beliefs. In Tennessee, a bill was considered that would exempt therapists and counsellors from serving clients if it conflicted with their religious beliefs or principles.
On the other hand, some laws have been passed to protect religious exercise from being "substantially burdened" by the government. For instance, Governor Mike Pence signed a bill to this effect, but later amended it to specify that the law cannot be used to deny services, housing, or employment based on race, religion, age, sexual orientation, or gender identity. Additionally, laws have been passed to protect the funding of student groups in colleges and universities, even if they require members to follow certain religious beliefs or conduct.
Historically, there have been instances of religious discrimination in the United States, such as the banning of traditional Native American customs and the forced Christianization of Native American children. Additionally, laws have been passed that restricted the use of certain languages in churches and schools, such as German, and the practice of certain rituals, such as the traditional indigenous Sun Dance.
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Religious laws in the UK
The right to freedom of religion in the United Kingdom is guaranteed by its three constituent legal systems: devolved, national, and European law and treaty. The country received a perfect score of 4 out of 4 for religious freedom in 2023. The Human Rights Act 1998 and the European Convention on Human Rights (ECHR) both uphold the right to freedom of thought, conscience, and religion. This includes the freedom to change one's religion or belief and the freedom to manifest one's religion or belief in worship, teaching, practice, and observance.
However, the freedom to manifest one's religion is subject to limitations prescribed by law and necessary in a democratic society. For example, the common law offence of blasphemy, which pertained to publications containing contemptuous, reviling, scurrilous, or ludicrous matter relating to God, Jesus Christ, the Bible, or the formularies of the Church of England, was only repealed in 2008. Additionally, in 1996, the European Court of Human Rights upheld a ban on "Visions of Ecstasy," an erotic video about a 16th-century nun, based on its infringement of blasphemy laws.
The UK's religious landscape is characterised by inconsistency due to its formation from the union of previously independent states. As a result, the largest religious groups often lack UK-wide organisational structures. While the Church of England is the state church in England, the monarch, as Supreme Governor of the Church, is required to maintain and preserve its settlement and doctrine. The Act of Settlement, which requires the monarch to be Protestant, remains unrepealed despite changes to the law that now allow those who marry Roman Catholics to remain in the line of succession.
While the UK does not have explicit "religious laws," its legal systems accommodate and protect the freedom to manifest religious beliefs, with limitations to ensure public safety, order, health, morals, and the rights and freedoms of others.
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Religious laws in theocratic states
Theocracy, derived from the Ancient Greek "theocratia", means "the rule of God". In a theocracy, one or more deities are recognized as the supreme ruling authorities, and human intermediaries are entrusted with executive and legislative powers to manage the government's daily affairs. The term was first used by Flavius Josephus in the first century AD to describe the government of the Jews, which he viewed as unique compared to other forms of rule such as monarchy, oligarchy, and democracy.
While the Enlightenment era marked the end of theocracy in most Western countries, there are still a few theocratic states in the modern world, including Saudi Arabia, Iran, and the Vatican. These countries enforce religious laws that are based on their interpretation of holy scriptures and teachings. For example, Saudi Arabia, an absolute monarchy, follows Sharia Law as decreed by the king in 1992, and its constitution is based on the Quran and Sunnah, the Muslim holy books and teachings. The country has "religious police" who enforce strict rules such as dress codes and the segregation of men and women.
Another example of a theocratic state is the Taliban regime in Afghanistan. The Taliban operates under a strict interpretation of Islamic Sharia law and has outlawed various activities such as movie theaters, keeping pets, and women working. While Afghanistan includes some democratic elements, its constitution declares that all laws and regulations must adhere to Islamic principles and guidelines.
In the past, other societies such as Sumerian cities, Ancient Egypt, Qing China, Buddhist Tibet, and the Mongol Khanate have also been described as theocracies or theocratic states. These societies were characterized by the presence of priest-kings, divine rulers, or religious leaders who held significant political power and influenced the legal system.
It is important to note that the existence of a state religion does not necessarily make a country a theocracy. The term "theocracy" is now often used descriptively to refer to governments that enforce a state religion, even if they do not directly derive their powers from a divine authority.
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Religious laws in multicultural societies
The relationship between religion and law is a complex and multifaceted issue, especially in multicultural societies. While some countries have a state religion or established church, officially endorsed by the state, others are secular or multicultural, where the government does not formally adopt a particular religion. In such societies, the state may either repress all religious activity or enforce tolerance of religious diversity.
Religious laws are derived from various sources, including sacred texts, traditions, and theological concepts. For example, Islamic Sharia law is derived from the Quran and the example set by the Prophet Muhammad. Christian canon law, Jewish Halakha, and Hindu law also provide legal codes that adherents follow. These religious laws can influence secular laws, as seen in the influence of canon law on modern Civil and Common Law in Europe and Latin America.
In multicultural societies, the challenge is to balance religious freedom with other human rights and ensure that religious laws do not infringe on the rights of others. This balance is particularly delicate regarding issues like same-sex marriage, where some religious groups may object on religious grounds. In the United States, several states have passed or considered "religious liberty" laws that allow businesses and individuals to refuse services to LGBTQ+ individuals based on religious beliefs, sparking controversy and protests.
To address these complexities, some countries have implemented specific measures. For instance, pilgrimage, an ancient religious tradition, is regulated by law. UNESCO has recognized the cultural and economic importance of pilgrimages by including pilgrimage routes and destinations as World Heritage Sites.
In conclusion, while religious beliefs and laws are integral to many individuals and communities, their intersection with secular law in multicultural societies requires careful navigation. It demands a delicate balance between religious freedom and the protection of human rights, ensuring that laws do not discriminate against or infringe on the rights of any individual or group.
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Religious laws in secular states
Secularism is the principle of conducting human affairs based on naturalistic considerations, independent of religion. It is often understood as the separation of religion from civil affairs and the state. This may be broadened to a similar position seeking to eliminate or minimise the role of religion in the public sphere. Secularism does not necessarily reject religion but instead seeks to interpret life based on principles derived solely from the material world.
Secularism can be established at a state's creation, as in the cases of the Soviet Union and the United States, or by later secularising, as in France and Nepal. Notably, the United States was the first explicitly secular government in history. The French model of laïcité, or the strict separation of church and state, has influenced other nations' interpretations of secularism. Turkey, for instance, adopted laiklik, a form of secularism influenced by French laïcité, as a state ideology in the 20th century. India, another secular state, stresses equality for all citizens regardless of faith before the law, with some separation from religion.
While secular states have no official religion, the absence of a state religion does not guarantee a completely secular or egalitarian state. For example, some self-proclaimed secular states have religious references in their national anthems and flags, or laws that favour certain religions. Furthermore, secular law in the strictest sense—law that is entirely free from religious influence—is impossible to achieve. This is because law inherently involves moral stances and values, and a truly "neutral" law does not exist.
In the context of religious laws in secular states, several complexities arise. For instance, in the United States, more than a dozen states have passed or considered "religious liberty" laws that directly affect the LGBTQ+ community. These laws are often criticised as discriminatory, despite supporters arguing that they protect religious beliefs. Similarly, in Australia, while the Commonwealth cannot establish a religion or impose religious observances, individual states retain the power to pass religiously discriminatory laws. These examples highlight the ongoing tensions between religious freedom and secularism in law-making within secular states.
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Frequently asked questions
Yes, laws can be passed based on religious beliefs. In the US, more than a dozen states have passed or considered "religious liberty" laws, which have sparked controversy and protests. These laws often directly affect the LGBT community, with critics arguing that they are discriminatory.
A secular state is unrelated or neutral when it comes to religion or irreligion. Therefore, a secular state should not pass laws based on religious beliefs. However, some argue that if a secular state passes laws that align with religious beliefs, it can no longer claim to be secular.
In the US, several states have passed laws allowing businesses and individuals to refuse services to gay couples based on religious beliefs. For example, in Mississippi, Governor Phil Bryant signed a bill that allows businesses to refuse service to gay couples, amid opposition from equal rights groups.
