‘Do no harm’ may sound good, but it’s a threat to religious and other freedoms

Written by Derek Monson

April 30, 2021

The Deseret News recently published a story looking at the greatest threat to religious freedom today. The people quoted pointed to things such as intolerance and politics, and there is certainly merit to these ideas. But one of the greatest sources of potential harm to religious freedom – and to all basic rights – may (ironically) be the idea that they should “do no harm.”

The “do no harm” argument says that religious freedom should be pre-emptively restricted by government power and regulation in instances where there is risk that the exercise of religious freedom could harm someone, even in intangible ways. It is often justified with statements such as “[religious] freedom does not give any of us the right to use our beliefs to justify harming others” or arguments like “religious liberty policies should reflect … freedom for all to live without fear of discrimination.”

On paper it makes sense. But we don’t live on paper. We live in the real world. And ideas that sound good on paper can often prove overly simplistic and damaging in the real world – doing more harm than good in the process.

To see this better, ask yourself the following: What would “do no harm” look like if applied to other basic freedoms, such as freedom of the press?

Take one of the “do no harm” arguments and apply it to freedom of the press: “Freedom of the press does not give any journalist the right to use their reporting to harm others.” Any organization that is the subject of investigative reporting or person who is criticized by a quote in a news story could argue that they are harmed by the publication of such a news story. So – should “do no harm” be sufficient justification to allow the government to restrict and regulate how and when investigative reporting can happen?

Alternatively, research has found that news reporting on crime can contribute to racial prejudice among the public and that crime reporting itself “exhibits both quantitative and qualitative racial bias.” So – should the government be able to restrict and regulate how and when crimes can be reported, because “free press policies should reflect … freedom for all to live without fear of discrimination”?

Many a news reporter would likely respond that allowing the government to pre-emptively restrict and regulate journalism because of a risk of harm to the subjects of news stories would effectively gut freedom of the press. And they would be correct. Because while “do no harm” sounds perfectly reasonable on paper, in the real world it is quite arbitrary and subjective.

For example, who in government gets to decide what “harm” means for purposes of restricting basic freedoms? Is it elected politicians who are so influenced by needing to raise money for reelection and by the threat of losing a primary to someone more ideologically extreme? Or is it unelected bureaucrats, who by necessity must play politics for things like maintaining and expanding their budgets or cultivating their future careers?

The threat of the “do no harm” idea is that it would gut much of the substance of religious freedom while sounding reasonable as a talking point. But “do no harm” threatens other basic rights as much as it does religious freedom.

This is because of the interconnected nature of civil liberties. An argument that successfully expands or restricts one basic freedom can be similarly be used to expand or restrict another basic freedom. The free press example is less a hypothetical and more a genuine possibility that proponents of “do no harm” for religious freedom ought to take seriously into consideration.

In the end, basic rights and freedoms rise and fall together. What protects one protects another, and what undermines one can undermine them all. Sometimes placing limits on basic rights is necessary due to a compelling, urgent and overriding reason, such as a pandemic. But if opponents of a robust religious freedom aren’t careful, they will end up in the unpleasantly ironic situation of doing more harm to their own basic rights than they could have dreamed by arguing “do no harm” when it comes to religious freedom.

Supreme Court rules in favor of Catholic foster agency but leaves big questions for later

Supreme Court rules in favor of Catholic foster agency but leaves big questions for later

The U.S. Supreme Court issued a significant religious freedom decision this morning, with all the justices concluding that the city of Philadelphia violated the constitutional rights of a religious foster care agency, Catholic Social Services, when it “stopped referring children to CSS upon discovering that the agency would not certify same-sex couples to be foster parents due to its religious beliefs about marriage.”

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