3 Reasons Gary Johnson is right on religious rights And where he gets it wrong18 min read
In a libertarian debate with John Stossel, Johnson said that “religious rights” are a “black hole” and that a Jew should have to bake a cake for a Nazi wedding. You can see his full statements here:
So what gives? I thought libertarians were all about freedom to do what they wanted and associate with whomever they choose. These statements by Johnson have created a backlash in the libertarian community which upholds the basic rights of the first amendment as almost sacred. Why? Because without 1st amendment protections we cannot call the government to account when it gets out of line. However this issue is not as straightforward as these libertarians would hope. So, here are 3 Reasons Gary Johnson is right on religious rights.
#1 The first amendment does not categorically reject intervention of actions based on religious belief.
There is one thing that no one can stop you from doing, and that’s thinking. So the freedom of thought is foundational to the 1st amendment. The first amendment then is first about the freedom of thought. Thought begets opinion; opinion begets belief; belief begets action. The first amendment then is secondly about protecting our opinions and beliefs spoken individually, by written word, or in a group. But does the 1st amendment protect all actions that result from these thoughts, opinions, and beliefs?
Congress shall make no law … respecting the establishment of religion. In other words, no federal law can be created to establish, either explicitly or implicitly, or favor one religious practice over another. Seems pretty straight forward, right? But do all religions co-exist peacefully with others, or with secular societies?
There’s an interesting conversation to be had about whether or not terrorist organizations like ISIS or Al-Qaeda are following a perverted interpretation of Islamt, but regardless, here is an example of religion being used to justify heinous acts of violence. And they certainly aren’t the exception. Christianity has been used to justify the murder of abortionists and violence against homosexuals, so we’re not innocent either. Hinduism is responsible for a caste system that oppresses the impoverished as another example. Does the first amendment protect these actions? No, of course not.
Religious ordinances pertaining to heaven, hell, and the afterlife are highly motivating behavior modifiers for those who believe in them – even to the point of causing harm to others. So it’s not good enough that we uphold “religious rights.” We must have supplemental principles to draw lines on what we can and cannot do under the guise of religious freedom. But how do we do that without establishing religion either by decree or defacto?
[tweetthis]People demand freedom of speech as compensation for the freedom of thought which they seldom use. #Kierkegaard[/tweetthis]
#2 “Religious Rights” are as erroneous as other group “rights.”
ALL of these are black holes, and libertarians generally have no problem saying so. We emphasize individual rights because groups are merely collections of individuals. If we based our rights on the notion that we derive our rights from the groups we self-identify with, then that assumes you have some rights that those outside of the group do not. Rights then become “exclusive” rather than “inclusive.” In other words, you only have rights by way of privilege instead of by entitlement, and that by definition is not a right.
Let’s take the right to marry: If we have both religious rights and LGBT rights then we immediately have a conflict because the religious group might state that homosexuals cannot be truly married thus causing those in that particular religion to deny the LGBT couple who is married (under law) the right to be viewed as married … at least legally so. Likewise the LGBT couple who wishes to assert their right to marry by using the state to coerce religious clergy into conducting a ceremony so that they may be viewed as married … in the eyes of that religion, is equally conflicting.
Conflict is the result of contradiction, or disagreement. So it cannot be that rights are derived from the groups we belong to because the right to marry, as derived from these two groups, creates a contradiction. Thus, the origin of our rights must come from elsewhere. If they originate in the individual – or at least by way of the individual – then we each have the same rights regardless of the groups we belong to. And if this is the case, then we need to see how our rights play with others.
#3 Libertarianism doesn’t give blanket approval for actions based on belief. We do have a moral code and our rights end where others’ begin.
Let’s do a [simple_tooltip content=’A thought experiment considers some hypothesis, theory, or principle for the purpose of thinking through its consequences.The common goal of a thought experiment is to explore the potential consequences of the principle in question.’]thought experiment[/simple_tooltip]:
I’m going to give three scenarios and we’re going to look at the problem of “religious rights” in each one of them.
Let’s suppose Gary believes in religion x and Austin believes in religion y. Religion y states that you must shun any person who violates rule y because supporting a person who violates rule y will send you to hell. So Austin, who works for the city water utility authority, meets Gary who comes in to open an account for his new home. In a casual conversation Gary mentions (without even realizing Austin’s devotion to religion y) that he (albeit unwittingly) violates rule y on a daily basis – even jokes about it. Austin is alarmed by this and remembers the message of his religion which is that you must shun any person who violates rule y because of the negative consequences. So Austin decides to shun Gary by refusing to give water utility service leaving Gary without water.
Let’s suppose that Donald belongs to religion x and Hillary doesn’t have any religion. Donald’s religion mandates prayer at a certain time of day to his deity. Donald is a pias man and holds his deity in high regard, as holy. Hillary thinks Donald’s belief is silly and laughs at Donald. Donald requires peace and quiet for his prayer and he has to stop whatever he’s doing at exactly 10am to do this prayer. It just so happens that this interferes with Hillary’s coffee break, and Donald always seems to be getting coffee just before prayer time – Donald stinks at time management too so he always ends up dropping to his knees to pray right as Hillary is trying to leave with her coffee. This causes Hillary to spill coffee all over herself and Donald gets indignant with her not respecting his religious beliefs. So to remedy this, Donald speaks to his employer to demand that he gets time in the break room for his morning prayer and demands that Hillary either take her break somewhere else or force her to participate by at least being quiet and reverent during the prayer time.
Let’s suppose that Ron and Jill are members of religion x and Rand and Barbara are part of religion y. In religion x, Jill is subordinate to Ron, and must obey everything Ron says. She must dress a certain way, behave a certain way, and can’t go anywhere without his permission. Jill follows these rules very well, but then meets Rand and Barbara. Barbara persuades Jill that religion x is crap and Jill shouldn’t be treated in this manner. Jill decides that Barbara is right and makes plan to leave Ron. But Ron figures out the plan. Religion x teaches that women who are not “voluntarily” subordinate must either be locked in a room for 7 days to cleanse her of impurity, or they must be killed to save them from their eternal fate. in religion y, Rand and Barbara believe, that women are equal to men and can make these decisions for themselves and it will have no impact on the after life, and that it is their duty to protect the oppressed. Ron tries to lock Jill away but she escapes. Rand is coming to help her and finds Ron about to kill Jill, so in an effort to protect Jill, Rand kills Ron.
The problem of “religious rights”
In all of these scenarios, my bet is that you found a reason why people could not act on their religious belief OR, in Rand’s case, defended the practice on grounds having nothing to do with religion. This is why religious rights are a black hole; they cannot be relied on in all cases as an ethical standard that can be tolerated by society. To suggest that our religion gives us license to do anything in its name is a collectivist idea and is definitely anti-libertarian. The point of rights is that we ALL have them … the same ones … and belonging to a group doesn’t give us more or less.
Libertarians use the Non-Aggression Principle and Property Rights to make determinations about the correct course of action for individuals and we use the concept of self-ownership to determine rights. And since rights can’t come from groups (groups don’t own themselves; and couldn’t if they tried), they must therefore be [simple_tooltip content=’Though the individual may not necessarily be the ultimate source.’]derived from the individual[/simple_tooltip]. Since rights are derived from the individual and not the group, then the group cannot take on rights where they do not first exist in the individual. And since religion is just another group, then it does not have any special authority that we ourselves don’t have as individuals.
What does Gary Johnson get wrong about religious rights?
If you haven’t watched the above video, I encourage you to watch it, but there a couple snippets I’d like to highlight here:
“Muslims in this country would be banned by all sorts of businesses right now because it would be the popular thing to do … The utility [that is] privately-owned and because its the only market that I have to buy my electricity, they’re going to cut me off for religious reasons.” – Gary Johnson
“This betrays a fundamental lack of understanding of the free market. You have to allow the marketplace to work. The government cannot stamp out bigotry. The government is not supposed to make us into better people. That’s not what the United States was founded on. The US was founded so that we could be whatever we wanted.” – Austin Petersen
Petersen would encourage a boycott of the privately-run utility company that Johnson described and says, “let the bigots out themselves.”
There are two different dynamics at play here. Johnson is attempting to play the [simple_tooltip content=’If an ideal cultural moral is not followed, then some justice is needed to rectify the situation’]moral/justice card[/simple_tooltip] and Petersen is attempting to play the [simple_tooltip content=’The free economic climate is a better indicator of cultural morals and thus can resolve social injustice without government intervention’]economic/moral card[/simple_tooltip]. It’s essentially this: a boycott may work in a medium to large city that has a diverse enough population that a boycott a) would actually occur and b) would actually have the potential for a negative effect on the owner of this private utility. However, in small town America … in the Bible-belt … that’s not likely to happen. So Johnson is asserting that it would be an inhumane injustice for the Muslim family to have their electricity turned off because of religious-based bigotry particularly in an area where that family is not likely to be rescued by a successful boycott. (What are people going to do – sacrifice their own electricity by not paying their bills. I don’t see this happening … it’s possible; just not probable).
Petersen on the other hand is suggesting that the free market will eventually weed out the bigots and that Muslim would eventually have their electricity turned back on. But this itself, ironically, “betrays a fundamental lack of understanding of the free market.” Consumer regulation of the free market (eg. boycotts) is a process that takes time, because unlike government regulation, consumer regulation involves changing hearts and minds. This takes time. Take PETA for example; PETA began as a way to persuade consumers to stop buying clothing and accessories made out of animal skins. It took several years before it became a faux pas to wear real fur and skins, and it’s still not fully eliminated from society – nor will it be. However the negative stigma of wearing real skins is the result of a change in the hearts and minds of a majority of the people – so it’s genuine, it’s real regulation. But it took YEARS (decades?) … Does the Muslim family have that long?
This creates a real conundrum for libertarians who tout the free market as a method of social justice. Yes, I believe wholeheartedly that the free market begets true social reform, but I’m not naive enough to believe that it would resolve an immediate need like electricity for a Muslim family. Yes, if we all live in liberty-minded cities boycotts would work well to resolve these issues quickly.
But not every city in America is that (pardon the pun) progressive, and the problem for Johnson is that he’s selling his campaign on the basis that “most Americans are socially inclusive.” If Americans are socially inclusive, then Johnson doesn’t need to be making this argument about the utility company. If they aren’t socially inclusive, then Petersen can’t make the argument that the market would solve the problem in a quick and efficient way. There is simply no easy answer to this question and libertarians need to recognize that.
The cake issue is a flat out bad analogy, and I wish Johnson would recant his position here. It’s not an apples to apples comparison between the baker and the utility owner. First, not baking a cake (or taking pictures) does not bring harm. The market already provides a multitude of options and no one’s survival is dependent upon the cake. So should the Jew be forced to bake the Nazi cake? No, because it doesn’t cause harm not to. It doesn’t oppress anyone not to … and it could be argued that forcing the baker to do so is bringing harm and oppression.
What’s the real problem we’re talking about here?
Ultimately the real conundrum is how best to live in a society that won’t rescue you. Count yourself blessed if society has your back, but what do we do when society doesn’t? That is not a problem that libertarianism can solve. However, this may also not be enough to shut down Gary Johnson as a “legitimate” libertarian either. Yes! There is such a thing as a left libertarian.
If we think about religious freedom in terms the founders intend, then you can believe that another person is damned to hell, you can believe that that you must pray to your deity at a particular time of day (and make arrangements on your own to do so). You even have the right to believe that women are inferior and ought to be subordinate in every way, but you don’t have the right to harm. You don’t have the right to oppress. Just as free speech is not license to emotionally abuse a child, so too religious freedom is not license to do harm in the name of your religion. (And if your religion calls for harm to others, you may want to consider a new religion).
Thanks for reading my post! Add your thoughts and comments by contacting me below, or you can interact with me and my patrons by becoming a premium member at patreon.com/kerrybaldwin.
In lieu of a comments section
I welcome and encourage your thoughts, comments, and questions through email.
But without the state, won’t we fall into lawless chaos? In this episode, I discuss the concept of polycentric legal order with legal scholar, Gary Chartier
• Podcast Subscribe • and give a five-star rating and review so new audiences can find Mere Liberty. This episode is the second half of my previous episode, and is intended to be heard with the last one in mind. Previously, I...
• Podcast Subscribe • and give a five-star rating and review so new audiences can find Mere Liberty. libertarianism abortion fetal self-ownershipI've been exploring and challenging today's prochoice/prolife paradigm surrounding the...