How Do Religion and Law Relate?

The culture wars that can dominate our news cycles often have as part of the issue, a conflict between religion and secular law. Same-sex marriage, abortion, medically assisted dying and more, have often been grounded in a conflict between more religious voices and those espousing that secular laws must take precedence. Today, let’s take a look at the complicated relationship between these two sources of authority. We’ll begin with some historical background for context and then reflect on some current examples.

Source: Canva.com

Religion Provided the Basis of Many of Our Laws

Historically, religion was a source of our cultural norms and morals, and provided the basis for many of our laws. In the West, Christian values led to banning polygamy, incest, infanticide (killing infants was distressingly common in human history), and eventually slavery, as devout abolitionists argued that all humans bore the image of God. 

In addition, as noted in an earlier blog, the eleventh century papal revolution established the legal underpinning for much of the modern West. Throughout much of history, in major empires (e.g. ancient Egypt, ancient China, the Ottomans), religious and secular authority was fused and held by one person (e.g. the Pharoah, Sultan, etc.). But in Europe, these roles were separated between popes and kings, who sometimes clashed.

To address this conflict, religious legal scholars invented the Western legal tradition including notions like the separation of powers, and the concept of a rules-based order where you needed some logic and rationale for asserting who had what power. This, in turn, implies limits on a sovereign’s power. This idea – that coherent rules would transcend the will of a king – was novel and plants the seeds of constitutionalism. The papacy is probably the first global institution and in looking to forge agreement on rational ideas and natural rights, it sets the stage for later bodies like the United Nations that claim to be grounded in universal human rights.

Source: Canva.com

Secular Law Pulls Away from Religion

Europe’s relative religious unity was torn apart by the Reformation. Great conflicts and wars followed which eventually led some to imagine that a country’s laws should be independent of religious doctrines. This unfolded gradually over centuries, first granting religious freedom and, in the past fifty years, leading many Western countries to legalize abortion, end Sunday shopping bans, and grant marriage rights to gays and lesbians. At the same time, the capacity to draw on religion for society’s moral norms eroded because religious unity dissolved. Many have now left religion while the devout adhere to a much wider array of religions, be they Hindus or Rastafarians. 

Image: As Napoleon conquered Europe, he spread his more secular legal code and ideas of citizenship.  Source: Wikimedia Commons – Public Domain

Modern Clashes

As noted above, today’s major culture war issues almost always see conflicts between religious conservatives and those pushing for more secular laws. (I am simplifying – religions are diverse and religious liberals often champion secular laws.) To give two examples from recent weeks, this article highlights Australia’s new hate speech law which might grant exceptions if someone is quoting a religious text. And this Canadian story highlights how religious hospitals want to be exempted from having to grant medically assisted dying, arguing that it violates their religious conscience to take a life. 

The Struggle for Sovereignty

Beneath the specific issues lies a deeper conflict – namely that both secular law and deeply held religious conviction claim to be the ultimate authority for governing human behaviour. Secular laws protect religious rights to pray, attend rituals, abstain from foods, etc. (although not perfectly as we shall see). But if something clashes with secular laws, the law generally asserts its primacy. So, you cannot deny service to a gay couple at your bed and breakfast for example even if your religious perspective sees the relationship as sinful. Exceptions are sometimes made for religious convictions but it is the law (through both legislation and the courts) that decides if there will be an exception. The law is always in charge in a secular legal system.

Conversely, religious devotion holds that there is something higher than man-made laws. Obedience to divine rules is viewed as a higher calling. This holds true for some on the right who oppose abortion or medically assisted dying. But it also holds true for figures idealized on the left such as Gandhi, Martin Luther King, and even Socrates. These heroic individuals all challenged existing laws – they felt their allegiance to a higher truth transcended human laws. Indeed, they acccepted suffering and even teh threat of death in defense of these higher truths – Socrates choosing to drink poison rather than accept civil laws he felt violated his conscience, while the other two risked constant death threats and were eventually assassinated for their steadfast commitment to these higher ideas. A pro-life advocate and Gandhi are not folks that are necessarily mentioned together but, whatever their differences, both believe (or believed) that secular laws are subordinate to something higher.

Photo: Gandhi, Martin Luther King Jr, and Socrates. Sources: Canva.com, Wikimedia Commons – public domain, and Canva.com,

What to Do?

Some voices on the left feel there should be no compromise with religion in any way. Why are religious groups allowed to maintain patriarchies where women are barred from certain clerical roles? How can they deny employment (as an imam or priest) because the person is gay? And in Quebec and some European countries, people are barred from certain professions for wearing religious garments (e.g. teachers, police officers, etc.).

Some conservative religionists also believe there should be no compromise. They call for theocracies where the nation’s laws would be based on their religion.

Navigating this is challenging at best and often extremely difficult. 

Diverse societies are complicated and may make getting everything you want impossible. Or, to be it more clearly, we may face a choice – either we find ways to accommodate difference or we follow the path of domination and oppression, where a ruling party or coalition squashes dissent (and the struggle is to become the dominant group). If we wish to avoid the violence and state oppression of the latter option, we must cultivate the virtues of tolerance and compromise that form the beating heart of democratic societies. Liberal democracies are not merely that the majority rules – they also protect minorities and the rights of those who lose public debates. And they assume that compromise is necessary and good.

Compromise, by definition, means some dissatisfaction. And pursuing it is more an art than a science. On hate crime laws, criminalizing a religious text is likely to be completely unpalatable to devotees and invite massive civil unrest. But if a text is used to incite hatred, that wider action could still be subject to sanction. Quebec’s laws that prohibit those with a turban or hijab from being a nurse or university professor should, in my estimation, be abolished. They discriminate against a minority and impose unjustified costs. 

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Conversely, our society will not allow a devout business owner to just refuse to serve a person who is gay. Here, the religiously conservative devotee has to compromise, understanding that a democratic society expects equal treatment for all. Such rules might protect the devotee at times but also makes demands of them too.

On other issues, compromise is not possible. Abortion is a key issue where the room for compromise is quite limited (e.g. confined to issues of how many weeks or what to do if the mother’s life is in danger). But for many routine abortions, there is only a binary choice of legalization or criminalization. Western societies have mostly chosen to protect a woman’s right to choose so compromise is not practically possible. Probably the best a society can do on these more binary issues is to protect freedom of speech. Freedom of speech acts partly as a pressure valve where those who lose an issue at least have the dignity to be heard. And protecting it is a social good in the long run. It has allowed previously silent groups (like LGBTQs) to find their voice and make their case.

Shared Values

In both secular law and in religious norms, one can find passages and ideals that speak of the value of compromise and of accommodating difference. These ideals may allow us to find better middle grounds and, also, when no middle ground is possible, to at least find ways that make both parties feel heard. Valuing one another’s commitments through these difficult issues is a way we show respect to one another and foster a society where all feel they belong and have a voice.