Freedom the Issue, Not Just Religious Freedom

Two Important Judgments on “Religious Freedom” 

– and why I object to both of them

Posted on July 4, 2014
By J.C. von Krempach, J.D.
Turtle Bay and Beyond

In the last week judges in the US and Europe have issued two very important judgment on religious freedom. One is the US Supreme Court’s judgment in the “Hobby Lobby” case, which upheld the right of a Christian company to not pay, as part of the so-called “Obamacare” health insurance system, for his employees’ contraceptive drugs which he deemed to be abortifacient, and thus not in line with his religious convictions. According to this decision, the employer’s religious freedom supersedes the state’s interest in supplying (allegedly?) abortifacient drugs to everyone who wants them.

The other one is a decision by the European Court of Human Rights, upholding a French law that prohibits the wearing of headscarves (known as niqab, burqa, or chador) and other gear that makes the wearer unrecognizable: according to the Court, the State’s margin of appreciation on these matters is wide enough to justify such a law, even if it sets limits to the right of Muslim women to live according to what they claim are the precepts of their Religion.

It appears that “religious freedom” is interpreted very differently on both sides of the Atlantic. In the US it seems to enjoy greater recognition than in Europe.


As for myself, I do not see any need for concealing the fact that I consider myself a “religious” person, and therefore have a great sympathy for other believers, including Christian employers who do not want to be forced to spend the money of their company on abortifacient drugs, or Muslim women who feel that not wearing a burqa endangers their modesty. Nevertheless, while I can agree with the outcome of both decisions (including the one where “religious freedom” has not prevailed), I am wondering whether “religious freedom” really was an appropriate argument to build a case upon.

The problem with Obamacare is not that it violates the religious freedom of Catholics, but that it violates the freedom of everyone.

With this, I do not want to downplay the achievement of the lawyers representing “Hobby Lobby”, who indeed seem to have won back an important civic liberty for their fellow citizens. But what I want to say is that “Obamacare” is not an attack on religious freedom, but on freedom at large.

There is no need here to enter into the subtleties of whether a given contraceptive really is a contraceptive, or whether it is an abortifacient. The Christian faith prohibits both, so that (if “religious doctrine” were the criterion) one is as good or bad as the other. But the appropriate criterion should not be the religious belief held by the employer. Instead, the decisive fact is that pregnancy is not a disease, and preventing or disrupting it is not “healthcare”. The use of contraceptive means or abortifacients are, at best, the corollaries of a freely chosen lifestyle. One has, in particular with regard to abortion, some pretty good arguments why people should not be free to chose such a lifestyle – but even admitting (for argument’s sake, not because I believe it) that such lifestyle choices should be allowed, it nevertheless remains that those making them should make them at their own expense. If my neighbour has the right to choose such a lifestyle, in a free society people should at least have the right to find that choice horrible and disgusting, and to openly say so. Not being compelled to finance the use of contraception and abortion by others is not a privilege for the followers of this or that religious belief, but it simply is part of that greater good that is called “freedom”.

The problem with Obamacare is not that it violates the religious freedom of Catholics, but that it violates the freedom of everyone. It is a truly totalitarian law, and as long as it exists the US cannot be called a free country. The normal and expedient answer to such a law is to simply repeal it, not to adopt a specific law on religious freedom that can be invoked by “religious believers” to circumvent it. Thus, while I wholeheartedly congratulate Hobby Lobby to its success, I do hope that ways will be found to repeal Obamacare as a whole.

As for that ECtHR decision on Islamic headscarves, It seems to me that in a truly liberal society everybody should be free to dress up as he or she wants, and that the state should only be allowed to interfere where it is strictly necessary. It is therefore a patent absurdity to assert, as the Court has done, that States should enjoy a wide margin of appreciation in adopting such laws. No, on the contrary: their margin of appreciation must be very narrow if we do not want to give way to new forms of totalitarianism. If the margin of appreciation is so wide as the Court says, what will it say if a country adopts a law that prohibits women from wearing trousers?

if we all were wearing headscarves that conceal us beyond recognition, the world would be a dangerous place.

There are good reasons for a legislator to prohibit the wearing of burqas and similar headscarves. One is that wearing such headgear prevents other people from knowing whom they are speaking or interacting with – it is thus an interference with the legitimate rights of third persons. Another reason is that any headwear that prevents the identification of a person is a potential security risk: if we all were wearing headscarves that conceal us beyond recognition, the world would be a dangerous place.

The French government has put forward all those reasonable arguments, which indeed suffice to supersede an alleged religious freedom and justify the ban of Islamic headscarves. But the ECtHR has rejected those arguments, and instead has made the absurd claim that States have “a wide margin of appreciation” in adopting laws that supersede “religious freedom”. This is yet another instance where this Court has exhibited a disturbing degree of intellectual laziness. How long will this tragicomic farce of a “Human Rights Court” be allowed to go on?

What we need is not “religious freedom”, but a sound understanding of freedom in the wider sense.