TOLERATION is a grudging half-way house. When people ‘tolerate’ others, they give them grudging acceptance, but they don’t think of them as equals, with fully equal rights. Indeed, toleration is often compatible with a condescending top-down attitude: these people are not really as good as we are, but we’ll graciously put up with them anyhow. For this reason, already in the eighteenth century, the concept of toleration came under fire from egalitarian thinkers. Indeed, it soon was rejected as a guiding concept by the more egalitarian of the founders of the United States.

My exploration of toleration and respect in this essay will focus for much of its length on the United States, since my hope is that a comparative approach to the topic will be helpful for the evolving Indian debate. After presenting my arguments about the U.S. tradition, I shall turn more briefly to the Indian experience.

In 1776, the colony of Virginia was drawing up a Declaration of Rights. Conservative political leader George Mason had written a draft, stating: ‘All men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, …unless under color of religion any man disturb the peace, the happiness, or safety of society.’ In his first major public act, James Madison, the primary architect of the U.S. Constitution, objected to the word ‘toleration’ as too grudging, suggesting legislative grace rather than entitlement, and to the absence of a language of equality. He proposed, successfully, that Mason’s language be replaced by the statement that ‘all men are equally entitled to the full and free exercise of religion according to the dictates of conscience.’

Toleration suggested hierarchy, as if it were by the blessing of the majority that the minority were not persecuted. That idea was going out, and the idea of human equality was coming in, with Madison in the vanguard. By 1790, even George Washington (first President of the United States, and far from a fiery egalitarian) would write to the Jewish congregation at Newport, Rhode Island: ‘It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights.’

The right value to insist on, in a modern society that recognizes all human beings as equals, is not the value of toleration, but the value of equal respect. Citizens ought to respect one another as equals, and governments ought to respect all their citizens as equals. In religious matters, what might this entail?¹

 

First of all, equal respect requires ample religious liberty. The freedom to worship in one’s own way is one of the most precious freedoms sought by human beings over the centuries. The ability both to think and speak as one chooses in religious matters and to engage in acts of worship according to one’s conscience (provided one does not violate the rights of others) is a key to human integrity, and has been sought whenever persecution shows its ugly face, which is to say, more or less everywhere.

One of America’s first theorists of religious liberty, Roger Williams, who fled persecution in Britain in the seventeenth century and founded the colony of Rhode Island – the first Euro-American political entity in which complete religious liberty obtained (for Protestant and Catholic, but also for Muslims, Jews, and Native Americans, and atheists as well) – said that to inhibit this freedom was tantamount to raping the soul. He noted, and extensively documented, that ‘soul rape’ had hitherto been practiced in all nations of the world.

 

Equal respect for conscience, as Williams already made clear, does not require one to like the other person’s religion, or to have any views about it one way or another. It requires two things only: respect for the person (which seems to entail giving that person a space to make key personal choices) and the belief that we can govern ourselves together through a shared set of moral and political principles, without agreeing about ultimate religious matters. As the human rights tradition unfolded, more and more people gained confidence in that possibility.

As debate about liberty of conscience unfolded, it came to be agreed that liberty of conscience ought to include not only the freedom of individuals to perform acts of worship, but also the freedom of churches and other religious organizations to manage their own affairs – again, within limits set by the equal rights of others.

What limits on racial, sexual, and gender discrimination on the part of religious groups does this principle suggest? The answer to this question has remained profoundly controversial. Courts in the U.S. have typically allowed churches freedom to discriminate on grounds of religious membership in their employment practices, and have even permitted some forms of gender discrimination: the Roman Catholic Church is not required to hire women as priests, and Catholic universities are permitted to keep their tax exemptions while restricting their Presidencies to a given priestly order, hence to males.

On the other hand, racial discrimination (a ban on interracial dating) lost an evangelical Christian college its tax exemption: the court argued that the ‘compelling state interest’ in eradicating racial discrimination outweighed the burden placed on the religious group. Certainly, in the light of the principle of fully equal respect, the stringent limitations imposed by the Indian Constitution on the practice of untouchability are amply justified.

 

Liberty of conscience, however, seen in light of the principle of equal respect, requires not just ample religious liberty, it requires equal religious liberty. What this means is that the conditions of liberty must be substantially the same for all. Minorities must not be forced to suffer special burdens in pursuit of their religious freedom. In all nations, majorities make laws that influence religious practices, such as laws regarding the workdays chosen, laws regarding drugs, and laws regarding military service. Inevitably, the laws will reflect the religious preferences of the majority: thus, in the U.S., Sunday is the standard day off work, and alcohol is legal, while hallucinogenic drugs used in Native American religion and other minority religions are illegal.

There is nothing inherently wrong with this, so long as law is sensitive to the needs of religious minorities, giving them exemptions from the generally applicable laws (called ‘accommodations’ in the law) so that they can adhere to the requirements of their religion. So, in a landmark U.S. case, a Seventh-Day Adventist, fired from her job because she refused to work on Saturday, and denied unemployment compensation by the state of South Carolina because she had refused ‘suitable work’, won that compensation from the Supreme Court. They reasoned that the denial of benefits was tantamount to fining her for Saturday worship, something that would make the conditions of religious liberty substantially unequal.

Exemptions to the drug laws for religious minorities have also by now been established through a combination of legislative and judicial action. Conscientious objection to military service was considerably broadened during the Vietnam War, so that not only members of recognized religions, but also people with their own personal views of the purpose and morality of life, could win exemptions.

 

The principle of equal respect, however, demands more than this from a nation and its system of laws. James Madison’s objection to the idea of ‘toleration’ soon led to a debate over religious establishment. Virginia wanted to keep the Anglican Church as the official church and the default recipient of tax benefits, although it permitted the taxpayer to choose to transfer the payments to some other church. For Madison and many others, this was not enough: the bare fact that the Anglican Church was the official one made a public statement, creating an in-group and an out-group. It said that all citizens did not enter the polity ‘on equal conditions’, as Madison put it. The U.S. Constitution, therefore, forbids any law that constitutes an establishment of religion – a prohibition that was originally binding only on the national government, but that was later extended to the actions of state and local government.

Significantly, the arguments against religious establishment, in the eighteenth and early nineteenth centuries (when the various states that still had established state churches got rid of them) turned on the distinction between mere toleration and fully equal rights/equal respect. An established church might be capable of toleration, it was argued, but it really could not show fully equal respect to all citizens. As the dissenters saw it, the minute one church, rather than another, hooked up with state power and state money, members of other religions – or that large group of Americans, at least eighty-five percent at the time of the Revolution, who had no church membership – were treated as lower in status. This was not simply a likely consequence of financial establishment, it was a meaning expressed in the very fact of such an establishment.

As historian Philip Hamburger writes, ‘Although dissenters often argued in terms of the appealing rhetoric of liberty, they also enunciated their demands in more precise terms – most commonly in terms of some degree of equality.’² Thus dissenters in Virginia, in 1779, wrote, ‘We most earnestly desire and Pray that not only an Universal Toleration may take Place, but that all the Subjects of this Free State may be put on the same footing and enjoy equal Liberties and Privileges.’³

 

Samuel Stillman, a prominent Massachusetts Baptist, asked the governor to grant all peaceable Christians ‘the uninterrupted enjoyment of equal religious liberty.’ He emphasized that ‘equal religious liberty’ meant a full equality of all legal and civil rights, without regard to religious differences: ‘The authority by which he [i.e. the "magistrate"] acts he derives alike from all the people [and] consequently he should exercise that authority equally for the benefit of all, without any respect to their different religious principles.’⁴ In South Carolina, similarly, William Tennent emphasized that establishments always make invidious distinctions among people, giving some a recognized status and merely tolerating others.

 

Although some early thinkers thought that the only important question was fairness among the religions, Madison’s position, which eventually became dominant, was that government must not only refuse to play favourites among the religions, it must also refrain from favouring religion over non-religion, or non-religion over religion. This basic principle is currently under threat, as numerous candidates for the Republican presidential nomination (using highly questionable accounts of history) have taken the view that it is fine to favour religion over non-religion.

Some go further, urging that it is all right to favour the monotheistic religions over polytheistic and non-theistic religions: candidate Mitt Romney’s recent speech expressed respect for Christians, Jews, and Muslims (provided, he said, that they are moderate and eschew terrorism!), but was utterly silent about Hinduism and Buddhism, as well as Confucianism, Taoism, agnosticism and atheism. At the most extreme, candidate Mike Huckabee, currently leading in some polls, holds that the United States is fundamentally a Christian nation and that it is fine to state this publicly.

Such candidates portray their opponents as people who hate religion, or have contempt for religion, or want to marginalize religion. They do not understand that one might be quite friendly to religion and yet see a fundamental danger to citizens’ equality in such statements and policies.

Unfortunately, the left in these U.S. debates has often obscured rather than clarified the issue by using ‘separation of church and state’ as the guiding value, rather than the concept of equal standing in the political realm. Total separation of church and state is neither possible in the modern world nor desirable. If the state were to refuse churches the use of the fire department, the police, or the public water and sewer systems, we would be right to feel that an egregious disadvantage had been imposed on religious people, and no liberal supports such policies, despite their reliance on the rhetoric of ‘separation’. The question to be asked is, what type and degree of separation are required, and we can answer that question only by turning to more fundamental values, in particular the values of equal respect and fully equal liberty.

 

What constitutes an establishment of religion? On some things, the U.S. tradition quickly reached agreement. Political offices, for example, may not be conditioned on religious membership, nor may office-holders be required to swear religious oaths as a condition of office. But the question of establishment comes up in many areas of life, given the vast reach of the modern administrative state. Three salient areas of current controversy are public displays, school religious observances, and government funding of religious schools. In each of these cases some extremes command agreement, but the middle ground is a terrain of deep disagreement.

Most Americans (though surely not all) agree that it is wrong to have a display of the Ten Commandments inside a public courtroom: such a display signals to people who don’t belong to the relevant religious groups that they come before the judge as unequals, grudgingly tolerated but not fully respected. (For this very reason, Hindu groups in the U.S. filed a brief in a case involving a display of the Ten Commandments on the Texas Statehouse lawn.)

On the other hand, most would also agree that it is all right for the state to erect an all-purpose holiday display that includes some religious symbols, if care is taken to include more than one religion and to link the symbols by some inclusive not specifically religious theme, such as that of liberty. In the middle lie many difficult cases. (The Texas case was difficult because the monument on the lawn was erected not by government but by a private group and was surrounded by many other monuments commemorating events in Texas history and culture.) Deciding such cases requires keeping one’s eye always on the idea of equal standing: does this display make a statement that establishes a privileged category of citizens and also an ‘out-group’ of dispreferred citizens?

 

Similar question arise when we consider prayer in the public schools. By now, most Americans agree that requiring all students to engage in Protestant prayer – once a ubiquitous custom – is profoundly unfair; they disagree, however, as to whether some more generic religious observances, such as the recitation of our Pledge of Allegiance with the words ‘under God’ in it, put an unfair burden on minority children – provided that those who have a conscientious objection to this sort of recitation are allowed to opt out. This is itself progress: at one time, Jehovah’s Witness children who refused to say the Pledge were expelled from school and their parents were jailed. Now we disagree only about whether the opt-out is enough for true citizen equality. (I am convinced that it is not.)

As to funding, it might seem easy to say that we will not fund any form of religious school. Given the huge number and the quality of religious (especially Roman Catholic) schools, however, this is not so easy to say. Some public school systems are so bad that parents have sought, and won, the right to have a state ‘voucher’ payment to support their child’s enrolment in the religious school of their choice. Our court has wavered on this delicate issue over the years, and the future is far from clear.

Those, then, are the main contours of the tradition of equal respect in the United States, a tradition that begins from the insight that toleration is not enough for real equality.

 

What of India? Well, we can begin by recognizing the great efforts of the constitutional founding to protect ample religious liberty, including the rights of religious groups to manage their affairs and to maintain educational institutions. In this respect, as in others, the Indian Constitution is a model for the world, in the care with which it makes the fundamental rights of citizens, and their equality, explicit.

The creation of the systems of personal law, however, compromised equal liberty from the start, as the establishment always does. Plural establishment is better than single-religion establishment, but it has large difficulties of its own. The most obvious problem with plural establishment, the unequal treatment of groups who are utterly left out, has not actually been such a large problem. We do not have much evidence of bad treatment of Jews qua Jews, or of Taoists and Confucianists as such, or even of atheists as atheists. Secular laws of marriage and property give these people a legal order to rely on, which, being relatively modern, is in general not worse than the religious systems; and atheists continue in most cases to be classified under the religious system of their origin.

The real problems arise when we consider the systems of personal law themselves, both internally and in comparison to one another. We see, first, many instances of discrimination on the basis of religion: a person gets a worse deal than another person, in maintenance or property or marriage, simply by the luck of belonging to a given religious community, when the other community has more favourable laws in the area. We see, second, a very undemocratic structure within the religious communities, which disadvantages minorities or dissidents within each community. The reason Christian divorce reform took so long to pass was that all the different Christian denominations – Protestants and Roman Catholics from different original colonial powers – had somehow to be brought together, and all had to be convinced to listen to the voices of women.

 

Since all the denominations were dominated by male clerics, this took a lot of doing. These clerics were not elected by all Christians to represent them; they were powerful because of their promotions within the Churches, and all of this was quite undemocratic. Similarly, the Muslim Personal Law Board is a self-perpetuating non-elected body that is unaccountable to and unrepresentative of India’s Muslims. The fact that laws relating to a community must be passed by Parliament does introduce a measure of accountability and democracy – but of an odd sort, since most of the people voting on any such given law will be members of the majority community. The voices of Christian women, for example, are unlikely to be prominent in the Lok Sabha.

More generally, the system of plural religious establishment has conspicuously failed to protect one of Indian society’s most vulnerable groups, namely women. Sex equality is surely easier to protect in a system of non-establishment than in a system of plural establishment, since discriminatory laws will have to be changed multiple times in a plural system and, as we have seen, one religious community often resents being forbidden to discriminate against women when others do not have similar requirements imposed at the very same time. Groups (or their leaders) can even come to define their power in the state in accordance with the degree to which they are permitted to continue subordinating women, and this appears to have happened. Procedures for reform, being internal to each religion, do not permit of simultaneity.

 

Fully equal respect requires, ultimately, an end to such discriminatory systems. How that desirable goal should be effected is a delicate political question, given recent history. The Latifi decision showed the Supreme Court thinking creatively about the question, not launching an all-out assault on personal law, but prepared to invalidate discriminatory laws should there be no way to read the statute in question that would prove compatible with equal respect.

As such problems are pondered, the touchstone should be, not toleration, that grudging attitude so frequently linked with unequal privilege, but equal respect, the principle that India’s Constitution in so many ways admirably expresses. Making that equality more perfect, in religious matters, involves challenges in many areas of life (the economic, the political), of which constitutional law, on which I have focused, is only one. Pursuing those challenges, however, is an urgent task for India, a major project for her next sixty years.

 

Footnotes:

1. My book Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, to appear in February 2008, spells this out in detail for the U.S. case, arguing that equal respect is gravely compromised at present due to the insistence of some politicians that the United States is basically a Christian nation.

2. Philip Hamburger, Separation of Church and State, Harvard University Press, Cambridge, MA, 2002, p. 96.

3. P. Hamburger, ibid., p. 99.

4. P. Hamburger, ibid., pp. 96-7.