Freedom of Religion Misunderstood

by Tibor R. Machan

One of my guilty pleasures is watching Boston Legal, a current David E. Kelley television product. Kelley created The Practice, as well as Ally McBeal, and most of what he does is intelligent and often quite funny.

In a recent episode of Boston Legal, however, one of the topics, the right to freedom of religion, got a serious mistreatment. A favorite character has started his own law firm and hired a fellow lawyer on an "at will" basis—meaning, strictly, the relationship could be terminated by either employer or employee if either of them so chose—and shortly afterwards, because the lawyer was an outspoken Scientologist, the protagonist fired the lawyer whose religious babbling in the office he couldn't stomach.

He was promptly sued—the whole show is about everyone suing everyone about nearly anything. In many of the cases on Boston Legal there is at least a semblance of accuracy vis-a-vis American law and there is, also, a strong bias in favor of the contemporary liberal agenda: anti-big business, pro-affirmative action, anti-conservative, anti-Republican, anti-capitalist, anti-Patriot Act, pro-environmental harassment of everyone, pro-government regulation of nearly everything under the sun (mainly under the guise of helping the downtrodden), etc., etc. Pretty typical Hollywood fare, only a bit more clever and funny rather than, say, the moroseness of nearly all the rest (e.g., West Wing).

However, in this episode there was a glaring misunderstanding of the concept of the right to freedom of religion, so much so that in trying to make the case for the protagonist's right to fire the avid Scientologist, the firm's top lawyer Alan Shore, played by James Spader, actually advocated compromising the First Amendment protection of the right to freedom of religion so as to make room for the perfectly reasonable dismissal of the scientologist. Instead of standing up for the principle of employment at will, an extension of the principle of the right of free association—which means, insisting that the protagonist could let the lawyer go with as much justice as the lawyer could leave if he wanted to—Shore argued that we are taking the principle of the right to freedom of religion too far and the law is treating religion in general too uncritically by defending everyone's right to his or her religion, period. (One item on Kelley’s agenda is to bash religion but usually indirectly!)

Apart from defending the employment at will doctrine, which was mentioned but then quickly left aside, the defense on this particular program could also have used a private property rights defense. After all, on the premises owned by the defendant, there is no freedom of religion. Just think—your work place isn't there for you to advocate your religion, politics, or any other conviction. It's there for you to do your job.

Even in my profession, university teaching, where a special doctrine of academic freedom is widely accepted, it doesn't mean one can just do anything in one's classes. No, one has to teach one's subject matter but if one writes a book or gives a special lecture, one may say nearly anything (well, provided it is not too politically incorrect!). And certainly if you visit me and start spouting views I detest, if I make you leave my home I am not violating your right to freedom of speech!

Similarly, if you own a law firm and hire an attorney, he or she may not make the premises into some personal bully pulpit. In short, the right to freedom of religion exists on one's own premises—one's own home, office, plant, farm, book, newspaper or magazine pages, etc. One may not just up and sermonize in someone else's office! If I go to a restaurant to have a meal and instead stand on my table and try to deliver a political talk or religion sermon, and then the proprietor throws me out, I have no grounds for protesting that my freedom of speech was violated. (Of course, the proprietor could permit me to make my pitch but that isn't a matter of my right but his or her choice!). Even on so called public property one's right to freedom of speech will usually conflict with the rights of some other member of the public—a version of the tragedy of the commons and one good reason to reduce the public realm to a minimum!

Sad thing is that Mr. Kelly & Co. appear to be so hostile to the free marketplace, with its firm adherence to the right to private property (as well as employment at will), that they are defenseless against irrational demands (such as wanting to keep one's job against the employer's will) ruling the day. Not even another basic right, namely, to freedom of association, can gain a good hearing at the hands of these modern liberal Hollywood types—after all, what would such a principle make of mandated affirmative action or all the anti-discrimination laws? For these folks in the marketplace all rights are subject to being abrogated by the government for various worthy social purposes.