The Autonomy Rationale for Religious Freedom
| Date | 01 March 2017 |
| Author | Farrah Ahmed |
| Published date | 01 March 2017 |
| DOI | http://doi.org/10.1111/1468-2230.12253 |
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The Autonomy Rationale for Religious Freedom
Farrah Ahmed∗
Courts and scholars across jurisdictions increasingly identify personal autonomy as the primary
rationale for the right to religious freedom. But there are tensions between autonomy on
one hand, and religious belief, practice and proselytism on the other. This paper will focus
on two tensions which have unappreciated implications for religious freedom jurisprudence,
particularly that of the ECHR. The first tension stems from the resistance of some religious
beliefs to revision. The second stems from the manipulative nature of some modes of religious
proselytism. This paper argues that, given these tensions, the protection currently offered to
religious beliefs, practices and proselytism by the right to religious freedom cannot be justified by
reference to the value of autonomy. This finding has significant implications for the justification
of the right to religious freedom.
INTRODUCTION
There is widespread agreement that religious freedom ought to be protected as
a legal right. There is much less agreement on why.
Proposed rationales include the value of faith,1the nature of conscience,2
the futility of religious coercion and the importance of finding religious truth.3
The underlying rationale(s) of the right to religious freedom guide the pro-
tection it will offer. For instance, if the maintenance of civil peace were the
primary rationale for religious freedom, the right might well not protect pacifist
minorities whose oppression would not threaten civil peace.4Understanding
the rationale(s) for the right to religious freedom is imperative because the
protection offered by the right is so deeply contested. Does it protect girls who
wear religious dress to school, bakers who refuse to write messages in support
of same sex marriage on cakes, parents who support corporal punishment of
their children in schools, airline employees who wear visible crosses, members
of the armed forces who proselytise to lower-ranking officers, and those who
∗Associate Professor, Melbourne Law School, University of Melbourne. Reema Muneer introduced
me to literature in psychology that shaped this paper in significant ways. Adam Perry, Carolyn
Evans, Joel Harrison, Dale Smith, Jarrod Hepburn, Tarun Khaitan, Lulu Weis and Jonathan Crowe
generously offered insightful feedback on earlier drafts. I gratefully acknowledge the many helpful
comments received at the Legal Theory Workshop and the Constitutional Theory Workshop at
Melbourne Law School, the Oxford Public Law Discussion Group and the faculty seminar at
the Centre for Transnational Legal Studies. The Law Research Service at Melbourne Law School
provided excellent assistance in preparing this manuscript.
1 T. Macklem, ‘Faith as a Secular Value’ (2000) 45 McGill Law Journal 1.
2 M. J. Sandel, ‘Religious Liberty—Freedom of Conscience or Freedom of Choice?’ [1989] Utah
Law Review 597.
3 J. H. Garvey, ‘An Anti-Liberal Argument for Religious Freedom’ (1996) 7 Journal of Contemporary
Legal Issues 275. See, generally, R. McCrea, Religion and the Public Order of the European Union
(New York: OUP, 2010) 106-115.
4Garvey,ibid, 280-281.
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited. (2017) 80(2) MLR 238–262
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Farrah Ahmed
detain their family members to undo the influence of a so-called cult? Re-
sponding correctly to these kinds of questions requires an understanding of the
rationale(s) for the right to religious freedom.
Increasingly, cour ts and scholars across jurisdictions identify personal au-
tonomy as the primary rationale for the right to religious freedom.5Personal
autonomy generally refers to the ideal of controlling, creating, authoring or
shaping one’s own life. Religion plays an important par t in the lives of many;
the freedom to make choices on religious matters is thought to enhance per-
sonal autonomy overall. The g rowing significance of autonomy as a rationale
for religious freedom is supported by its growing significance for other human
rights,6and in theories of constitutional r ights more generally.7
This paper unsettles the status of autonomy as the primary rationale for
religious freedom. It argues that while autonomy is an attractive rationale, it
does not count in favour of the full range of protection currently offered by
the right in liberal states. This is because there are tensions between autonomy
on one hand, and religious belief, practice and proselytism on the other.8This
paper will focus on two tensions which have unappreciated implications for
religious freedom jurisprudence. The first tension stems from the resistance
of some religious beliefs to revision. The second stems from the manipulative
nature of some modes of religious proselytism.
This paper finds that as a result of these tensions, the legal protection offered
to religious freedom does not always enhance, and may even diminish, auton-
omy. Therefore autonomy on its own does not support or count in favour of the
protection currently offered to religious beliefs, practices and proselytism by the
right to religious freedom. In particular, autonomy cannot support the protec-
tion currently offered to some religious beliefs which are resistant to revision,
and to certain types of manipulative proselytism. This finding suggests that the
protections offered by the right to religious freedom are not wholly justified,
or that other rationales, alone or in concert with autonomy, underlie the right.
5 See generally, C. Evans, Freedom of Religion under the European Convention on Human Rights
(Oxford: OUP, 2001) 29-33; McCrea, n 3 above, 110; K. Greenawalt,Religion and the Constitution
vol 1 (Princeton, NJ: Princeton University Press, 2006) 3-4; A. Brownstein, ‘Harmonizing the
Heavenly and Earthly Spheres: The Fragmentation and Synthesis of Religion, Equality, and
Speech in the Constitution’ (1990) 51 Ohio State Law Journal 89, 95; B. Berger, ‘Law’s Relig ion:
Rendering Culture’ (2007) 45 Osgoode Hall Law Journal 277; D. Laycock, ‘Religious Liberty as
Liberty’ (1996) 7 Journal of Contemporary Legal Issues 313; F. B. Cross, Constitutions and Religious
Freedom (New York: CUP, 2015) 32; see the section headed ‘Autonomy in Religious Freedom
Jurisprudence’ below. cf R. Ahdar and I. Leigh, Religious Freedom in the Liberal State (Oxford:
OUP, 1st ed, 2005) 60-62; Gar vey, n 3 above, 278-279; Sandel, n 2 above; A. Koppelman,
‘Religious Establishment and Autonomy’ (2008) 25 Constitutional Commentary 291.
6Pretty vUnited Kingdom (2002) EHRR 1 at [61].
7K.M
¨
oller, ‘Two Conceptions of Positive Liberty: Towards an Autonomy-based Theory of
Constitutional Rights’ (2009) 29 Oxford Journal of Legal Studies 757; Evans, n 5 above, 33. See
Jehovah’s Witnesses of Moscow vRussia (2011) 53 EHRR 4 at [135]; Pretty vUnited Kingdom ibid
at [61], [65].
8 For some of them, see Evans, n 5 above32; P.G. Danchin, ‘Of Prophets and Proselytes: Freedom
of Religion and the Conflict of Rights in International Law’ (2008) 49 Harvard International Law
Journal 249, 277; M. W. McConnell, ‘God Is Dead and We Have Killed Him!: Freedom
of Religion in the Post-modern Age’ [1993] Brigham Young University Law Review 163, 173;
McCrea, n 3 above, 111-115, 129.
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(2) MLR 238–262 239
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