A ban would require the very repression it claims to prevent

The argument

Opponents of prohibition argue first from what enforcement would involve. Religion is not only an institution but a practice conducted in private: prayer, fasting, dietary observance, the naming of children, what parents say to them about death. To ban it is therefore to undertake to police households, correspondence, gatherings and conversation, and to decide which private acts count as worship. Opponents argue that no state has ever attempted this without creating an apparatus of informers, searches and penalties for belief, and that the attempt converts a government into precisely the unaccountable authority its advocates say they object to. They argue next that the remedy would not work. A belief held to be a duty is not abandoned when it becomes costly; it is concealed. Prohibition would therefore produce clandestine congregations, unregistered schools and unsupervised clergy, with none of the transparency, safeguarding requirements, financial reporting or legal liability that regulated religious bodies now carry. The harms most often cited against religion, from abuse hidden by an institution to the coercion of its own members, are harms that oversight addresses and that secrecy aggravates. Opponents add a third consideration about the precedent. A state that may prohibit a belief because it judges the belief harmful has assumed a power with no evident limit, and the same reasoning would be available against any conviction a future government found dangerous. Freedom of conscience, on this account, is not protected because beliefs are harmless but because the authority to rule on them is more dangerous than anything it would be used against.

Premises

Counter-arguments

Proponents of a ban reply that the enforcement objection is practical rather than principled, and that laws against practices conducted in private, from domestic violence to tax evasion, are enforced imperfectly without being abandoned. They add that the slippery-slope argument proves too much, since every prohibition could be described as a precedent for the next, and that the harms they identify are not incidental failures that oversight could correct but consequences of the unquestionable authority religion claims.

Rejecting the premises

[Rejecting P1] That enforcement would reach into private life is granted, and it shows the prohibition would be intrusive and difficult rather than wrong. Laws against conduct in the home are enforced imperfectly in several areas without being held illegitimate on that ground. [Rejecting P2] The prediction that practice would go underground is plausible and is given without any estimate of scale. A prohibition that substantially reduced religious practice while driving a remainder into secrecy might still satisfy its advocates, and the premise does not engage that possibility. [Rejecting P3] The argument from precedent proves more than it needs to, since any prohibition can be described as a precedent for the next. The premise needs a reason why belief in particular cannot be legislated about, and it offers the slope in place of one.