Constitutions and Religion 9781786439291, 1786439298

Table of contents :
Front Matter
Copyright
Contents
Contributors
1. Introduction: constitutionalism and religion in an age of consolidation and turmoil
PART I HISTORY, CONCEPTS, THEORIES
2. Constitution and secularism: a Western account
3. Secularism’s others: the legal regulation of religion and hierarchy of citizenship
4. The theoretical framework of modern Islamic constitutionalism
5. The modern architecture of religious freedom as a fundamental right
PART II CONSTITUTIONAL COEXISTENCE: MODELS OF MANAGING RELIGION AND THE STATE
6. Constitutional models of law and religion relations in Western Europe
7. Constitutionalism and religion in common law North America
8. Religious freedom in Latin American constitutions: from freedom from the Catholic Church to freedom from “gender ideology”
9. Constitutions and religion in Africa
10. Islam, Sharia and comparative constitutionalism
11. Managing religion and difference: ancient constitutionalism in the Theravāda Buddhist tradition and the transformative impact of the modernist and post-colonial turn
12. Constitutionalism and religion in a Jewish and democratic state
13. Reforming religion: the Indian Constitution, the courts and Hinduism
14. Three models of church-state relations in contemporary Russia
PART III THE CONSTITUTION AND POLITICS OF RELIGION
15. Religion in constitution-making processes: comparative perspectives
16. Religion and political parties
PART IV RELIGION AND SUPRANATIONAL CONSTITUTIONALISM
17. Individual religious freedom under the European Convention of Human Rights
18. Religion in the constitutional order of the European Union
19. Religion and human rights
PART V CHALLENGES AND CONTROVERSIES
20. Gender justice and religious freedom in the post-secular age
21. Religious conscientious objection: a troubled path
22. Constitutional law and the integration of Islam in Europe
23. Blasphemy, freedom of expression and the role of constitutional rights: the case of Ireland
24. Pluralism and personal laws in India
Index

Citation preview

CONSTITUTIONS AND RELIGION

RESEARCH HANDBOOKS IN COMPARATIVE CONSTITUTIONAL LAW Series Editor: Tom Ginsburg, University of Chicago, USA Comparative Constitutional Law is a burgeoning field, bringing to bear a diverse array of methodologies on a broad range of issues. The Research Handbooks in Comparative Constitutional Law series provides a set of comprehensive overviews of aspects of the field, including contributions by scholars from around the world. The aim is to give voice to the full range of constitutional experiences from a wide set of countries, from an interdisciplinary and comparative perspective. The Research Handbooks provide an invaluable resource in a world in which judges, constitution-makers and constitutional litigators borrow concepts and ideas across borders. Titles in the series include: Constitutions and Gender Edited by Helen Irving Comparative Constitutional Theory Edited by Gary Jacobsohn and Miguel Schor Comparative Judicial Review Edited by Erin F. Delaney and Rosalind Dixon Comparative Constitution Making Edited by David Landau and Hanna Lerner Constitutions and Religion Edited by Susanna Mancini

Constitutions and Religion Edited by

Susanna Mancini Department of Legal Studies, University of Bologna, Italy

RESEARCH HANDBOOKS IN COMPARATIVE CONSTITUTIONAL LAW

Cheltenham, UK • Northampton, MA, USA

© The Editor and Contributors Severally 2020

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2020942854 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781786439291

03

ISBN 978 1 78643 928 4 (cased) ISBN 978 1 78643 929 1 (eBook)

Contents

List of contributorsvii 1

Introduction: constitutionalism and religion in an age of consolidation and turmoil Susanna Mancini

PART I

1

HISTORY, CONCEPTS, THEORIES

2

Constitution and secularism: a Western account Michel Rosenfeld

3

Secularism’s others: the legal regulation of religion and hierarchy of citizenship41 Ratna Kapur

4

The theoretical framework of modern Islamic constitutionalism Andrew F. March

59

5

The modern architecture of religious freedom as a fundamental right Peter G. Danchin

75

PART II

CONSTITUTIONAL COEXISTENCE: MODELS OF MANAGING RELIGION AND THE STATE

6

Constitutional models of law and religion relations in Western Europe Silvio Ferrari

7

Constitutionalism and religion in common law North America Dia Dabby and Jean-François Gaudreault-DesBiens

8

Religious freedom in Latin American constitutions: from freedom from the Catholic Church to freedom from “gender ideology” Julieta Lemaitre Ripoll

9

Constitutions and religion in Africa Charles Manga Fombad

96 111

139 157

10 Islam, Sharia and comparative constitutionalism Abdullahi Ahmed An-Na‘im 11

21

Managing religion and difference: ancient constitutionalism in the Theravāda Buddhist tradition and the transformative impact of the modernist and post-colonial turn Roshan de Silva-Wijeyeratne v

172

184

vi  Constitutions and religion 12

Constitutionalism and religion in a Jewish and democratic state Gila Stopler

208

13

Reforming religion: the Indian Constitution, the courts and Hinduism Ronojoy Sen

222

14

Three models of church-state relations in contemporary Russia Kristina Stoeckl

237

PART III THE CONSTITUTION AND POLITICS OF RELIGION 15

Religion in constitution-making processes: comparative perspectives Francesco Biagi

253

16

Religion and political parties Luca Ozzano

272

PART IV RELIGION AND SUPRANATIONAL CONSTITUTIONALISM 17

Individual religious freedom under the European Convention of Human Rights 286 András Sajó and Renáta Uitz

18

Religion in the constitutional order of the European Union Ronan McCrea

307

19

Religion and human rights Christopher McCrudden

321

PART V

CHALLENGES AND CONTROVERSIES

20

Gender justice and religious freedom in the post-secular age Susanna Mancini and Elena L. Cohen

347

21

Religious conscientious objection: a troubled path Isabelle Rorive and Ana Maria Corrêa

370

22

Constitutional law and the integration of Islam in Europe Christian Joppke

383

23

Blasphemy, freedom of expression and the role of constitutional rights: the case of Ireland Neville Cox

24

Pluralism and personal laws in India Farrah Ahmed

399 415

Index433

Contributors

Farrah Ahmed is an Associate Professor at Melbourne Law School. Before this, she was a Lecturer in Law at the Queen’s College, University of Oxford. Her research spans public law, legal theory and family law. Her recent work on constitutional statutes, religious freedom, the doctrine of legitimate expectations, the duty to give reasons, social rights adjudication and religious tribunals has been published in the Cambridge Law Journal, the Modern Law Review, the Oxford Journal of Legal Studies, Public Law and the International Journal of Constitutional Law. Her book Religious Freedom under the Personal Law System was published by Oxford University Press in 2016. Abdullahi Ahmed An-Na‘im is Charles Howard Candler Professor of Law, Associated Professor in the College of Arts and Sciences of Emory University and Senior Fellow of the Center for the Study of Law and Religion. He is the author of: What is an American Muslim (2014); Muslims and Global Justice (2011); Islam and the Secular State (2008); African Constitutionalism and the Role of Islam (2006); and Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law (1990). His edited books include Human Rights under African Constitutions (2003); Islamic Family Law in a Changing World: A Global Resource Book (2002); and Human Rights in Cross-Cultural Perspectives: Quest for Consensus (1992). Francesco Biagi is a Senior Assistant Professor of Comparative Public Law at the University of Bologna Department of Legal Studies, as well as a Researcher at the Center for Constitutional Studies and Democratic Development (a partnership between the Johns Hopkins University SAIS Europe and the University of Bologna). He is also a legal consultant at the Max Planck Foundation for International Peace and the Rule of Law (Heidelberg). Since 2015 he has been a Visiting Professor at the University of Illinois College of Law. His most recent publications include: European Constitutional Courts and Transitions to Democracy (Cambridge University Press 2020); Corti costituzionali e transizioni democratiche. Tre generazioni a confronto (il Mulino 2016); “The Separation and Distribution of Powers Under the New Moroccan Constitution”, in R. Grote, T.J. Röder (eds.), Constitutionalism, Human Rights and Islam after the Arab Spring (Oxford University Press 2016); Political and Constitutional Transitions in North Africa: Actors and Factors (Routledge 2015) (co-editor with J.O. Frosini); and Comparative Constitutional History. Volume One: Principles, Developments, Challenges (Brill 2020) (co-editor with J.O. Frosini and J. Mazzone). Elena L. Cohen is an attorney and Doctor of Philosophy. She is an Adjunct Professor of Gender and the Law and Civil Rights in the City University of New York system. Dr. Cohen is the current President of the National Lawyers Guild, the oldest progressive bar association in the United States. She publishes on issues of gender, sexuality and comparative constitutional law. Ana Maria Corrêa is a Ph.D. candidate in law at the Université Libre de Bruxelles, Perelman Centre. Her research examines the challenges of regulating the digital economy and preventing discrimination in the U.S. and European markets. Her project was awarded a four-year grant vii

viii  Constitutions and religion from Capes Foundation. She is a member of the Council for European Studies and the Internet Society Association. She has led classes at the Université Libre de Bruxelles and Goethe Universität Frankfurt. A lawyer by training, prior to pursuing her Ph.D., she earned a master’s degree in legal theory/public law from the Université Aix-Marseille III, France, and studied European human rights at the European University Institute, Italy. Neville Cox is Professor in Law in Trinity College Dublin, where he is also the university Dean of Graduate Studies. He is a practising barrister. He has published widely in relation to freedom of expression generally and blasphemy laws specifically. His latest book, Behind the Veil: An Analysis of European Anti-Veiling Laws, was published by Edward Elgar Publishing in 2019. Dia Dabby is a regular professor at the Département des sciences juridiques at the Université du Québec à Montréal, where she teaches and conducts research in the field of public law. She holds previous degrees from McGill University (DCL, BA) and Université de Montréal (LL.B and LL.M), and is a member of the Quebec Bar. Her scholarship has focused on law, religion and institutions from a Canadian and comparative constitutional context. Her work has been published in the Supreme Court Law Review, Dalhousie Law Journal, Studies in Religion, Osgoode Hall Law Journal and Religion & Human Rights, as well as in the Research Handbook on Interdisciplinary Approaches to Law and Religion (Edward Elgar Publishing, 2019), L’intérêt supérieur de l’enfant: perspectives juridiques et religieuses (Éditions Yvon Blais, 2019) and Globalized Religion and Sexuality (Brill, 2014). Peter G. Danchin is Professor of Law and Director of the International and Comparative Law Program at the University of Maryland School of Law. He holds a B.A. and LL.B. with first-class honors from the University of Melbourne, where he was Editor-in-Chief of the Melbourne University Law Review; and a LL.M. and J.S.D. from Columbia Law School, where he was a Bretzfelder International Law Fellow. In 1999, he was a foreign law clerk to Chief Justice Arthur Chaskalson of the Constitutional Court of South Africa; and in 2013–14, an Andrew W. Mellon Visiting Fellow in Law and Religious Studies at the University of Cape Town. In 2014–15, he was Senior Research Fellow in Law at the Center of Theological Inquiry in Princeton, where he co-led the Inquiry on Law and Religious Freedom. His scholarship focuses on competing conceptions of the right to religious freedom in international law and in legal, political and moral theory. Recent publications include Politics of Religious Freedom, co-edited with Winnifred Fallers Sullivan, Elizabeth Shakman Hurd and Saba Mahmood (Chicago University Press 2015); and a special issue of South Atlantic Quarterly, co-edited with Saba Mahmood, on Politics of Religious Freedom: Contested Genealogies (vol. 113, Duke University Press 2014). Roshan de Silva-Wijeyeratne is a Member of both the Edinburgh Centre for Constitutional Law, University of Edinburgh and the Centre on Human Rights in Conflict, University of East London. In 2019 he was appointed to the Executive of the Commonwealth Legal Education Association and remains an Adjunct Lecturer, Griffith Law School at Griffith University. He graduated from the School of Oriental and African Studies (University of London) in 1990 and completed his doctorate at the University of Kent. He has taught at universities in both the U.K. and Australia. He has published extensively on Ceylonese/Sri Lankan constitutional history. He is currently working on a co-authored book on the rule of colonial legal difference

Contributors  ix in the British Empire and is undertaking research on nineteenth century Australian colonial legal history. Silvio Ferrari is Professor of Law and Religion, University of Milan; and Visiting Professor at the University of California (Berkeley, 1994 and 2001), the Institute for Advanced Legal Studies (London, 1998–99), the Ecole Pratique des Hautes Etudes (Paris, Sorbonne, 2004), the University of Leuven (2000–12) and the Center of Theological Inquiry (Princeton 2014). His publications in English include Religious Rules, State Law, and Normative Pluralism. A Comparative Overview (together with R. Cristofori and R. Bottoni), Springer, 2016; Switzerland Handbook of Law and Religion (Routledge 2015); Religion in Public Spaces (Ashgate 2012, ed. together with S. Pastorelli); and Law and Religion in Post-Communist Europe, Leuven, Peeters, 2003 (ed. together with W. Cole Durham, Jr. and E.A. Sewell). His main fields of interest are law and religion in Europe; comparative law of religions (particularly Jewish law, Canon law and Islamic law); and the Vatican policy in the Middle East. He is honorary President of the International Consortium for Law and Religion Studies. In 2012 he was invited to deliver the Messenger Lectures at Cornell University; and he has received the Distinguished Service Award of the International Center for Law and Religion Studies of the J. Reuben Clark Law School (BYU, Provo, Utah). Charles Manga Fombad is Professor of Law and heads the African Comparative Constitutional Law Unit at the Institute for International and Comparative Law in Africa (ICLA), Faculty of Law, University of Pretoria. He holds a Licence en Droit (University of Yaounde), LL.M. and a Ph.D. (University of London), and a Diploma in Conflict Resolution (University of Uppsala). Professor Fombad is member of the editorial board of several distinguished national and international journals. He is also a member Academy of Science of South Africa, an Associate Member of the International Academy of Comparative Law and a Vice President of the International Association of Constitutional law. He has published widely and is the Series Editor of the Stellenbosch Handbooks in African Constitutional Law published by Oxford University Press. The fourth book in the series, Corruption and Constitutionalism in Africa – Revisiting Control Measures and Strategies was published in 2020. Professor Fombad is also co-editor (with Professor Rainer Grote of the Max Planck Institute) of the introductory reports to African constitutions published as part of Constitutions of the Countries of the World Online (Oxford University Press). His research interests are in comparative African constitutional law, media law, the African Union law, and legal history, especially issues of mixed systems and legal harmonization. Jean-François Gaudreault-DesBiens is currently Vice-Rector in charge of planification and strategic communications at the University of Montreal. He is Full Professor at the University of Montreal, where from 2006 to 2016 he held the Canada Research Chair on North American and Comparative Juridical and Cultural Identities, and where he was Dean from 2015 to 2019. Before coming to the University of Montreal, he taught at the University of Toronto and at McGill University. His main areas of research are constitutional law (domestic and comparative), legal theory and the sociology of legal cultures. He is the author of more than 100 scientific articles, and has published six books and edited or co-edited five collections He was named Advocatus Emeritus by the Quebec Bar and was elected to the Royal Society of Canada.

x  Constitutions and religion Christian Joppke is a Professor of Sociology at the University of Bern, Switzerland. His most recent books are The Secular State under Siege: Religion and Politics in Europe and America (2015) and Is Multiculturalism Dead: Crisis and Persistence in the Constitutional State (2017), both published by Polity (Cambridge). Ratna Kapur is Professor of International Law, Queen Mary University of London. She is also Senior Core Faculty with the Institute of Global Law and Policy, Harvard Law School and a Distinguished Visiting Law Professor at Symbiosis School of Law, Pune, India. She is the author of several books and articles on human rights, gender, postcolonial theory and secularism, including Secularism’s Last Sigh? Hindutva and the (Mis)Rule of Law (2001) and most recently Gender, Alterity and Human Rights: Freedom in a Fishbowl (2018). Julieta Lemaitre Ripoll is a judge at the Justice Chambers of the Colombian Special Jurisdiction for Peace, created in 2018 to implement the transitional justice component of the peace agreements. Before her appointment, she taught at the Law School in Universidad de Los Andes, where she has been a full professor since 2007 and is now Adjunct Professor of Law. She has a law degree from Universidad de Los Andes (1995), a master’s in Gender and Religious Studies from New York University (1998) and a doctoral degree in Law and Social Theory from Harvard University (2007). She has been a Robina Human Rights Visiting Scholar at the Yale Law School (2014–15) and a PRIO Global Fellow (2014–17.) She has published in English in several peer-reviewed journals as well as book chapters in edited volumes using historical and sociological approaches to issues regarding sexual and reproductive rights, as well as the rights of victims of human rights violations and more generally human rights and violence. Her books in Spanish include El Derecho como Conjuro (2009); La Paz en Cuestión (2011); and El Estado siempre llega tarde (2019). She also edited La Quintíada (2013) and Derechos Enterrados (2011). Susanna Mancini (Ph.D., European University Institute, JD, University of Bologna School of Law) is a Full Professor and the Chair of Comparative Constitutional Law at the University of Bologna School of Law and an Adjunct Professor of International Law at Paul H. Nitze School of Advanced International Studies of Johns Hopkins University. She is a Vice-President of the International Association of Constitutional Law. Professor Mancini has been a Visiting Professor at Columbia University, the Hebrew University, the Central European University, Fordham University, Cardozo School of Law, the University of Toulouse and the Radzyner School of Law in Israel. Her work explores issues of anti-discrimination law, minority rights, law and religion, reproductive rights, the partnership of feminism and multiculturalism, self-determination and secession. Her latest publications include The Conscience Wars. Rethinking the Balance between Religion, Identity and Equality (Cambridge University Press 2018, with Michel Rosenfeld); Constitutional Secularism in an Age of Religious Revival (OUP, 2014, with Michel Rosenfeld); and the casebook Comparative Constitutional Law. Cases and Materials (with Norman Dorsen Michel Rosenfeld, Andras Sajo and Susanne Baer, West, 2016). Ronan McCrea is Professor of Constitutional and European Law at University College London and a barrister. He was formerly a référendaire (judicial clerk) at the Court of Justice of the European Union and is the author of Religion and the Public Order of the European Union (Oxford University Press) and Religion et l’Ordre juridique de l’Union européenne (Bruylant). He is a regular columnist on EU and legal issues for The Irish Times newspaper.

Contributors  xi Christopher McCrudden is Professor of Human Rights and Equality Law at Queen’s University Belfast, a William W. Cook Global Law Professor at Michigan Law, and a practising barrister at law with Blackstone Chambers. Specializing in human rights, he concentrates on issues of equality and discrimination as well as the relationship between international and comparative human rights law. Professor McCrudden is the author, most recently, of Litigating Religions: An Essay on Human Rights, Courts and Beliefs (OUP, 2018), about the relationship between religion and human rights law. An earlier book, Buying Social Justice (OUP, 2007), examined the relationship between public procurement and equality, for which he was awarded a certificate of merit by the American Society of International Law in 2008. He has co-authored (with Brendan O’Leary) Courts and Consociations (Oxford University Press, 2013), about the tensions between human rights and ethnic power-sharing arrangements that are common in peace agreements. He has also edited the multi-disciplinary volume Understanding Human Dignity (Oxford University Press, 2013). In addition, he serves on the editorial boards of several journals, including the Oxford Journal of Legal Studies and the International Journal of Discrimination and the Law. He also serves on the European Commission’s Expert Network on the Application of the Gender Equality Directives, and the Irish Department of Foreign Affairs’ Human Rights Advisory Panel and Brexit Stakeholder Group. Professor McCrudden holds an LL.B from Queen’s University Belfast, an LL.M from Yale Law School and both a D.Phil and a DCL from Oxford University. Queen’s University Belfast awarded him an honorary LL.D in 2006. He was elected a Fellow of the British Academy in 2008 and a Member of the Royal Irish Academy in 2018. He is chair of the Advisory Committee of the Institute for Advanced Studies (the Wissenschaftskolleg) in Berlin. He was awarded the CBE for services to human rights in the 2019 New Year’s Honors List. Andrew F. March is Associate Professor of Political Science, University of Massachusetts, Amherst. His research and teaching interests are in the areas of political philosophy, Islamic law and political thought, religion and political theory, and comparative and non-Western political theory more generally. His first book, Islam and Liberal Citizenship: The Search for an Overlapping Consensus (Oxford, 2009), is an exploration of the Islamic juridical discourse on the rights, loyalties and obligations of Muslim minorities in liberal politics, and won the 2009 Award for Excellence in the Study of Religion from the American Academy of Religion. His second book, The Caliphate of Man: The Invention of Popular Sovereignty in Modern Islamic Thought (Harvard, 2019), examines the problem of divine and popular sovereignty in modern Islamic thought through the Arab Spring. He has published articles on Islamic law and political thought, secularism, religion and free speech, religious freedom and the boundaries of marriage in liberal society. Luca Ozzano is Associate Professor of Political Science at the University of Turin, where he teaches Political Science and Politics and Religion. He is Convenor of the Religion and Politics Standing Group of the European Consortium for Political Research (ECPR) and Chair of the research committee on Religion and Politics of the International Political Science Association. He is also Associate Editor of the journal Political Research Exchange (Taylor and Francis/ ECPR). He has published (with Alberta Giorgi) European Culture Wars and the Italian Case: Which Side Are You On? (Routledge 2016); and edited (with Francesco Cavatorta) Religiously Oriented Parties and Democratization (Routledge 2014). His main research area is the study of the relations between religion and democracy, at the theoretical level and with a specific

xii  Constitutions and religion focus on religiously oriented political parties. He is currently working on the book The Masks of the Political God. Religion and Political Parties in Contemporary Democracies, forthcoming in 2020 with ECPR Press/Rowman and Littlefield. Isabelle Rorive is a Professor at the Law Faculty of the Université libre de Bruxelles, the President of the Perelman Centre for Legal Philosophy and the co-founder of the Equality Law Clinic. She is currently serving as the Equity Advisor to the Vice-Chancellor for the Diversity Policy of the Université libre de Bruxelles. Her research focuses on theoretical and practical developments of the right to equality and non-discrimination as well as human rights in general. In 2018, she co-edited two books: Governing Diversity. Migrant Integration and Multiculturalism in North America and Europe (Brussels, ed. Université de Bruxelles); and Human Rights Tectonics. Global Perspectives on Integration and Fragmentation (Cambridge, Intersentia). Michel Rosenfeld is University Professor of Law and Comparative Democracy and Justice Sydney L. Robins Professor of Human Rights at the Cardozo School of Law in New York City. He has been the President of the International Association of Constitutional Law and the founding Editor-in-Chief of the International Journal of Constitutional Law (I.CON) (2001–14). His most recent books include: The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Cambridge University Press 2018) (co-editor with Susanna Mancini); Comparative Constitutionalism: Cases and Materials (West Academic Publishing, 3d ed. 2016) (co-author with Baer, Dorsen, Mancini and Sajo); Démocraties sous stress (Presses Universitaires de France 2016) (co-author with Antoine Garapon); Constitutional Secularism in an Age of Religious Revival (Oxford University Press 2014) (co-editor with Susanna Mancini); The Oxford Handbook of Comparative Constitutional Law (Oxford University Press 2012) (co-editor with Andras Sajo); Law, Justice, Democracy and the Clash of Cultures: A Pluralist Account (Cambridge University Press 2011); and The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture and Community (Routledge 2010). András Sajó is a University Professor at Central European University, Budapest and a former Vice-President of the European Court of Human Rights. He is co-author (with Norman Dorsen, Michel Rosenfeld and Susanna Mancini) of the casebook Comparative Constitutionalism: Cases and Materials (West, 3rd ed., 2016); and co-editor (with Michel Rosenfeld) of The Oxford Handbook of Comparative Constitutional Law (OUP, 2012). With Renata Uitz, he recently published The Constitution of Freedom: An Introduction to Legal Constitutionalism (OUP, 2017). He is the author of numerous book chapters and articles on religious freedom, including the widely cited “Preliminaries to a Concept of Secularism” (I.CON, Volume 6, Issue 3–4, July–October 2008). Ronojoy Sen is Senior Research Fellow at the Institute of South Asian Studies and the South Asian Studies Programme, National University of Singapore. He has worked for more than a decade with leading Indian newspapers, most recently as an editor for The Times of India. His latest book is Nation at Play: A History of Sport in India (Columbia University Press/ Penguin, 2015). He is also the author of Articles of Faith: Religion, Secularism, and the Indian Supreme Court (Oxford University Press, 2010) and has edited several books, the latest being Media at Work in China and India (Sage, 2015). He has contributed to edited volumes and has published in several leading journals. He also writes regularly for newspapers. He has a Ph.D. in political science from the University of Chicago and read history at Presidency College,

Contributors  xiii Calcutta. He has held visiting fellowships at the National Endowment for Democracy, Washington, D.C., the East-West Center Washington and the International Olympic Museum, Lausanne, Switzerland. Kristina Stoeckl teaches social and political theory and sociology of religion at the University of Innsbruck. Her research focuses on religion and politics, the Russian Orthodox Church and church-state relations in Russia. She works as principal investigator on the European Research Council Starting Grant Project POSEC (Nr. 676804), investigating the role of the Russian Orthodox Church as a global norm entrepreneur. Dr. Stoeckl holds a Ph.D. from the European University Institute in Florence (2007) and has published widely on the Orthodox intellectual tradition, post-secular social theory and the Russian Orthodox Church and human rights. Gila Stopler is Dean of the Law School and an Associate Professor of Law at the College of Law & Business. She serves as the Editor-in-Chief of the journal Law & Ethics of Human Rights. Professor Stopler’s areas of research include constitutional law, comparative constitutional law, religion state relations, multiculturalism, women’s rights and human rights. Her publications appear in leading journals such as I.CON, Global Constitutionalism, the Oxford Journal of Law and Religion and the Columbia Journal of Transnational Law. Professor Stopler served as a Tikvah Fellow (faculty fellow) at the Tikvah Center for Law and Jewish Civilization at the New York University (NYU) School of Law. She holds an LL.B. from the Tel Aviv University Faculty of Law, and LL.M and J.S.D degrees from the NYU School of Law. She served as Chair of the Board of the Association for Civil Rights in Israel (ACRI) between 2013–17. Renáta Uitz is Professor, Chair of the Comparative Constitutional Law Program and Head of the Department of Legal Studies at Central European University, Budapest. She is the co-author (with Andras Sajo) of The Constitution of Freedom: An Introduction to Legal Constitutionalism (OUP, 2017); and the editor of Freedom and Its Enemies: The Tragedy of Liberty (Eleven Publishing, 2015) and Religion in the Public Square: Perspectives on Secularism (Eleven Publishing, 2014). A recent essay of hers on religious liberty in Europe is “Religion and Equality: From Managing Pluralism towards a European Requirement of State Neutrality”, in Malcolm Evans, T. Jeremy Gunn, Jeroen Temperman (eds.) European Court of Human Rights Religion Jurisprudence: The 25 Years Since Kokkinakis (Brill, 2019).

1. Introduction: constitutionalism and religion in an age of consolidation and turmoil Susanna Mancini

1.

SECULARIZATION, MODERNIZATION AND THE LEGACY OF THE ENLIGHTENMENT PROJECT

Reflecting upon the inspiration behind her masterpiece, Memoirs of Hadrian, novelist Marguerite Yourcenar pointed to a sentence she had come across in 1973, in a volume of Gustave Flaubert’s correspondence: “Just when the gods had ceased to be, and the Christ had not yet come, there was a unique moment in history, between Cicero and Marcus Aurelius, when man stood alone.”1 While Flaubert’s assertion might be historically questionable,2 it undoubtedly captures the extraordinary “mental and spiritual world” of pre-Christian Roman intellectual circles,3 whose life was free of religious constraints and filled with moral options – none of which reinforced by a divine force, all of which opened to rational discussion. For two decades, Yourcenar worked on her novel, “trying to define, and then trying to portray, that man existing alone and yet closely bound with all beings.”4 Indeed, her portrait of Hadrian, the Emperor of Rome from 117 to 138 AD, is the emblem of an unconstrained mind in search of the truth. Hadrian lucidly sees the inner contradictions and the limitations of all philosophical and religious doctrines. His initial curiosity for Christianity soon turns into the awareness that it will inevitably lead to sectarianism. At the end of his life, Hadrian no longer believes in the possibility of universal knowledge; he has become skeptical and disenchanted. Ever since the Enlightenment, social thinkers have foreseen modernization as conducing to something close to Hadrian’s condition, or Flaubert’s mythical Roman “world without religion.” Throughout the nineteenth and twentieth centuries, the most prominent philosophers, sociologists and anthropologists all concurred that modernization inevitably entailed the twilight of religion. Karl Marx considered religion as an epiphenomenon – a pathological product of a wrong world, bound to disappear once all injustices would be redressed.5 Liberal theorists pointed to the fundamental incompatibility between the rational character of Western modernity and the irrational force of religion. In Max Weber’s influential sociology of religion, modernity emerged in the West through a process of rationalization, which unraveled the

1 Marguerite Yourcenar, Memoirs of Hadrian: And, Reflections on the Composition of Memoirs of Hadrian 319–20 (1963). 2 Between Cicero (106–43 BCE) and Marcus Aurelius (121–180 CE), many Romans were still polytheist: see A Companion to Roman Religion (Jörg Rüpke ed., 2007). Moreover, Christianity was on the rise under Marcus Aurelius, who carried on several persecutions against Christians: see Paul Keresztes, Marcus Aurelius a Persecutor?, 61 The Harvard Theological Review 321–41 (1968). 3 Stephen Greenblatt, The Swerve: How the World Became Modern 71 (2012). 4 Yourcenar supra note 1, at 320. 5 Nikolaus Lobkowicz, Karl Marx’s Attitude Toward Religion, 26 The Review of Politics 319–52 (1964).

1

2  Constitutions and religion conflation of ethical, religious and legal norms that was typical of pre-modern law, followed by a process of disenchantment. The intersection of these two processes led to the replacement of the superstitious and ceremonial law of primitive peoples by the integration of faith and reason of Christianity and the other monotheistic religions; and later, by entirely reason-based modern secular norms issued from the Enlightenment.6 The ideals of the Enlightenment presuppose a secular constitutional frame.7 Thus, while the place of religion in the public sphere and its relationship with the state have been crucial since Constantine – and particularly since the advent of the protestant Reformation – from a constitutional standpoint, secularism emerged as a necessary corollary of the ideal of the Enlightenment: the separation of faith from reason and equal liberty for all. According to the conventional narrative of the Enlightenment, the impossibility of fully capturing religion within the limits of reason made it necessary to decouple the realms of politics, scientific research and education from the bounds of religion. In addition, any endorsement of one denomination to the exclusion or marginalization of others would be in principle unacceptable, as it would inevitably undermine adherence to the principle of equal liberty for all. The expulsion of religion from the public sphere, where members of different faith-based communities must interact on an equal footing, is thus necessary to institutionally guarantee the dual aims of the Enlightenment. Separation of faith from reason is fostered by entrusting the public sphere to the latter and by allowing full expression of the former within the private sphere. Equal liberty is sustained, on the other hand, by the principle of neutrality between religious denominations in the public sphere and by securing the same freedom for all religions within the private sphere. Constitutional secularism may be construed variously as requiring outright expulsion of religion from the public sphere, as customarily understood in the context of French laïcité, or as merely called upon to insure that the state remain equidistant as between all religions within the polity. In either case, what remains imperative for constitutional secularism is that religion be depoliticized.8 The Enlightenment project thus confined religion to the private sphere. This conventional narrative has notoriously been countered by many social theorists. In the first place, the presumed neat dichotomy between private and public has proven unsustainable. As feminist theory has abundantly made clear, the private sphere – which is constructed by the Enlightenment as that of family relations, sexuality and reproduction – is inherently political. Modern citizenship is structurally gendered citizenship: women’s relegation in the family and their deprivation of political rights are the payoffs for men’s political equality and freedom in the public sphere. Sexual difference is thus political difference and the private sphere is charged with political significance.9 Accordingly, the confinement of religion within the private sphere had two consequences: first, it exempted religion from democratic control; and second, it made space for religious norms to regulate gender and family relations, sexuality and reproduction.

6 Max Weber, Economy and Society: An Outline of Interpretive Sociology. Vol. 2 644 ff. (1922) [1978]. 7 See Michel Rosenfeld’s chapter in this volume. 8 Susanna Mancini and Michel Rosenfeld, Introduction, in Constitutional Secularism in an Age of Religious Revival xv et seq. (Susanna Mancini and Michel Rosenfeld eds., 2014). 9 Carol Pateman, The Sexual Contract (1988).

Introduction  3 Furthermore, the privatization of religion did not result in any neat expulsion of religious influence on political thinking. Indeed, privatization resulted in secularization and universalization of religion, and thus in its penetration and amalgamation into liberal political theory. This becomes manifest if one remembers that the Western concept of secularism is inescapably tied to the Christian religious tradition. Moreover, historically, secularism is the process of separation of the state from Christian churches, not from religion as such. It thus entails not only an obvious accommodation of Christian majorities, but also the culturalization of Christianity and its infusion into the entire fabric of the polity. The Enlightenment did not expel religion from the public sphere, but rather transformed it. Thus, “[f]rom being a concrete set of practical rules attached to specific processes of power and knowledge, religion has come to be abstracted and universalized.”10 The above equation of secularized Christianity with universally valid values made room for the deployment of the secular state ideal in the West. Western models of managing the relationship between religion and the state vary considerably. France and the United States are traditionally described as strictly secular; whereas the United Kingdom, the Scandinavian countries and Greece provide models where an official religion coexists with institutionalized tolerance for minority religions. Italy and Spain constitute a middle-ground model, where special privileges are conferred upon the majority Catholic Church within an otherwise secular frame. From a constitutional standpoint, however, all Western models of managing religion are steeped in the normative order issuing from the Enlightenment. Hence, irrespective of their differences, they all adhere to two fundamental principles: the separation of church and state in the public sphere; and the protection of freedom of and from religion within the private sphere. Many constitutions reflect this dual constitutional prescription. Thus, the U.S. Constitution’s “Establishment Clause” prohibits the state from adopting, preferring or endorsing a religion; whereas its “Free Exercise Clause” enjoins the state from interfering with the religious freedom of its citizens. Article 1 of the French Constitution specifies the secular character of the Republic and the duty of the state to respect all beliefs. Other constitutions only contain a freedom of religion clause, but implicitly embed separation in the founding principles of the system. In other areas of the world, the transplant of the Western project of modernity set in motion different dynamics. In the first place, Western modernity – being built on the premise of liberal individualism – has been rightly accused of not paying sufficient attention to the idea of community.11 Accordingly, the Western conception of religious freedom as an individual right to be asserted against the state and society does not adequately capture – and has the potential to undermine – the communal dimension of religion that predominates in many different religious cultures. Most importantly, Western modernity developed in a context infused by the absolutist culture of Christianity. The fractures among Christian denominations did not prevent the common identification of Europeans with the Christendom,12 starting as early as 732, with the victory of Charles Martel over the Islamic forces. But other areas of the world did not follow a similar path. The case of Eastern Asia, which has traditionally been characterized by religious pluralism, comes to mind. As Peter Berger explains:

Talal Asad, Genealogies of Religion 42 (1992). Partha Chatterjee, Community in the East, 33 Economic (February 7–13, 1998). 12 Peter Hulme, Colonial Encounters 84 (1986). 10 11

and

Political Weekly 277–82

4  Constitutions and religion all over the region, different worldviews, religious traditions and even schools of moral thought have existed side by side quite amicably, and individuals have often utilized different traditions, simultaneously or at different stages of life, in a manner that seems illogical or irreverent to a Western observer.13

The idea of relativity was thus traditionally embedded in a context suffused with a plurality of religious traditions and ethics – Buddhism, Shintoism, Confucianism and Christianity – and did not constitute a traumatic break from the past. Indeed, while “the pre-modern pluralism of Chinese, Japanese and Korean cultures could […] be seen as a facilitation factor in the process of modernization,”14 Christian theology resisted and resented modernity, for dethroning it and forcing it to live as “one among many”15 competing religious and secular conceptions. As the case of East Asia shows, the path that led to Western modernity has not been universally validated. As Charles Taylor warns, “the belief that modernity comes from one single universally applicable operation imposes a falsely uniform pattern on the multiple encounters of non-Western cultures.”16 In particular, the assumption that modernity necessarily emerges out of the fading of religious and metaphysical beliefs erroneously implies that there is a necessary convergence among the paths of different civilizations.17 One should acknowledge the existence of multiple modernities, that do not necessarily proceed through secularization, and separation between the state, society and religion. The structural tensions within Western secularism, and the diversity that characterizes the relationship between state and religion across non-Western societies, did not prevent the world from experiencing a long period of, so to say, religious peace. Western, and particularly European, societies became increasingly secular and Christian churches made their peace with the secular state. After the Second World War, constitutionalism provided a frame for protecting religious minorities.18 By the middle of the twentieth century, freedom of religion was also recognized as a fundamental human right, in all international human rights treaties. Beyond the Iron Curtain, Communist regimes repressed religious expression, structurally eliminating the potential for conflicts between state and religion. A similar dynamic was at play in other contexts, such as Iran and Egypt, ruled by secular authoritarian leaders. Toward the end of the 1970s, this equilibrium began to unravel.

13 Peter L. Berger, Secularity: West and East, in Cultural Identity and Modernization in Asian Countries (Kokugakuin Daigaku and Nihon Bunka Kenkyūjo eds., 1983, www2​.kokugakuin​.ac​.jp/​ijcc/​ wp/​cimac/​index​.html, last accessed January 3, 2020). 14 Id. 15 Gustavo Zagrebelsky, One Among Many? The Catholic Church Between Universalism and Pluralism, in Mancini and Rosenfeld (eds.), supra note 8, at 247–68. 16 Charles Taylor, Two Theories of Modernity, 25 The Hastings Centre Report 24–25 (1995). 17 Id. 18 Dieter Grimm, Conflicts Between General Laws and Religious Norms, in Mancini and Rosenfeld (eds.), supra note 8, at 3.

Introduction  5

2.

THE RE-POLITICIZATION OF RELIGION: A THREAT TO PUBLIC REASON

The sociologist José Casanova has famously remarked that since the Iranian Revolution of 1979, the world has witnessed the resurgence of strong religions – that is, of religions that re-claim a space as protagonists in the public sphere and, specifically, in the political arena.19 The resurgence of strong religion must be placed in the broader context of the historical processes of secularization, globalization, mass migration and democratization. The optimism that characterized the post-Second World War period was replaced by uprooting and unsettling expectations, exacerbated by the inexorable march of neoliberal economy. Accordingly, religion regained a commanding urgency as a response to disenchantment with the world, as a source of purpose, stability and empowerment. It should thus not come as a surprise that while religiosity has progressively decreased in specific areas of the world – such as China, Japan, Western Europe, Canada and Oceania – the rest of the globe has experienced the opposite trend.20 Today, the majority of the world population is religious; and in many regions of the globe, religiosity is on the rise among younger generations. It is thus to be expected that, globally, the number of people who consider themselves religious will continue to increase.21 Around the world, state-centered identities and politics have weakened with the erosion of the Cold War, making room for regroupings of religious, as well as ideological and political, collective actors. “Communal religious movements have developed within Hindu and Buddhist cultures, generally sharing strong antimodern and/ or anti-Western themes.”22 Other significant examples include the rise and spread of fundamentalist movements within Muslim, Jewish, and Protestant Christian communities. Many modernizing societies have rejected the homogenizing path of the Western model of secular modernity, and have relied on religious tradition to distance themselves from the colonial past and pursue autonomous projects of social transformations.23 In other words, the country’s majority religious tradition is no longer perceived as an obstacle to the country’s road to modernization; but it is used to challenge the notion that modernity is possible exclusively in European forms, and to assert the possibility of alternative forms of modernity that build on the country’s traditional religious culture. Often, the rejection of the previous generation’s secular aspirations and the reappropriation of the indigenous religion go hand in hand with a heavily conservative or fundamentalist interpretation of the latter. In post-colonial countries, religions and religious institutions play key roles in democratic transitions, state building24 and state policies. Islamists have become political protagonists in countries previously ruled by secular autocratic leaders, as exemplified by the role of the Muslim Brotherhood in the election of Egyptian President Mohamed Morsi in 2012. José Casanova, Public Religions in the Modern World (1994). See the 2015 survey of 65 countries, conducted by Gallup International and the WI Network of Market Research: www​.washingtonpost​.com/​blogs/​worldviews/​files/​2015/​04/​WIN​.GALLUP​ -INTERNATIONAL​-RELIGIOUSITY​-INDEX​.pdf​?tid​=​lk​_inline​_manual​_27, last accessed January 3, 2020. 21 Ibid. 22 Shmuel N. Eisenstadt, Multiple Modernities 129 Daedalus 1–29, at 17 (2000). 23 See the chapters by Ratna Kapur, Charles Manga Fombad, Abdullahi Ahmed An-Na‘im, Roshan de Silva-Wijeyeratne and Ronojoy Sen in this volume. 24 See Francesco Biagi’s chapter in this volume. 19

20

6  Constitutions and religion Globalization and mass-scale migration have produced a blurring of the line between the private sphere and the public sphere. Mass migration has transformed Western countries from highly homogeneous societies into multicultural, multi-religious polities, triggering defensive reactions and testing the limits of constitutional secularism in ensuring religious toleration. Against the “assumption that tolerance would inevitably arise in secular systems based on reason,”25 in Western democracies religious freedom has turned into a highly controversial right – as testified by the rise in fundamental rights litigation involving religious arguments, such as in conflicts involving religious symbols in the public sphere26 and the construction of worship places for minority religions. The repoliticization of religion poses a formidable challenge to the essential tenets of the Enlightenment project, upon which Western constitutionalism is grounded. Western constitutionalism presupposes a neat separation between the realm of faith and that of reason, and is committed to ruling the public sphere according to the dictates of reason.27 Accordingly, while religion might be the ultimate inspiration of political action, arguments admitted in the political arena must derive exclusively from public reason.28 In The Idea of Public Reason Revisited, the liberal political theorist John Rawls argued that religious doctrines should endorse constitutional democracy, which is the only fair way to ensure that the liberty of their adherents is consistent with the equal liberties of other reasonable, free and equal citizens. Importantly, Rawlsian public reason requires a religiously pluralistic polity, where all citizens, irrespective of their faith, feel a “duty of civility.” For religious citizens, this means that they should use arguments and ideas that, albeit rooted in religion, are in harmony with toleration for all and with fundamental rights.29 Our current predicament does not satisfy these conditions.30 As to the first of these, in spite of the existence of a religiously pluralistic polity and the changes brought by mass-scale migration, Western countries remain predominantly Christian. Religious pluralism thus amounts to the juxtaposition of a religious majority (often highly secularized) and various religious and non-religious minorities. While Western constitutions grant all citizens equal religious rights, power relations among religious groups are strongly unbalanced, and the public sphere and the political arena are de facto not equally accessible to individuals within the majority and to those belonging to minority groups. Moreover, as indicated in Section 1, all Western models for managing the relationship between the state and religion share a common feature: a degree of entanglement between national identity and the polity’s Christian heritage. Secularization implied a process of separation between the state and Christian churches,

25 Marilyn Booth, Review of Talal Asad, Formations of the Secular: Christianity, Islam, Modernity, 4 Bryn Mawr Review of Comparative Literature 2 (2004). 26 Susanna Mancini, The Power of Symbols and Symbols as Power: Secularism and Religion as Guarantors of Cultural Convergence, 30 Cardozo Law Review 2639–68 (2009). 27 The following discussion draws on Susanna Mancini, Global Religion in a Post-Westphalia World, in Handbook on Global Constitutionalism 421–32 (Anthony F. Lang and Antje Wiener eds., 2018). 28 John Rawls, Political Liberalism (1993). 29 John Rawls, The Idea of Public Reason Revisited, 64 University of Chicago Law Review 765–807 (1997). 30 The following discussion draws on Susanna Mancini, Strong Religion and Week Minorities: A Cautionary Tale from Europe, in Key Developments in Constitutionalism and Constitutional Law 33–47 (Lidija R. Basta Fleiner and Tanasije Marinković eds., 2014).

Introduction  7 and hence it naturally entailed the accommodation of the majority’s (Christian) religion. Religious tolerance thus was bent on keeping religious diversity within the private sphere; while the public sphere was imbued in cultural Christianity – as vividly exemplified in the 1789 speech by Clermont-Tonnerre regarding the enfranchisement of the Jews during the French Revolution: “We must refuse everything to the Jews as a nation and accord everything to the Jews as individuals.”31 Today, however, this traditional model of tolerance for religious minorities in predominantly Christian countries – characterized by a strict separation between “private” and “public” – fails to meet the needs of less homogeneous polities, where the private and public spheres collapse into one another, and religious diversity can no longer be confined to the private sphere. Indeed, in such contexts, deprivatized religion is detrimental to religious freedom and religious and cultural pluralism, as it tends to strengthen the privileges of majority denominations and relegate religious and non-religious minorities to the democratic periphery. A case decided in the United Kingdom provides a particularly telling example of such perils.32 In 2009, the U.K. Supreme Court held a state-funded Jewish school to be guilty of discrimination based on ethnic origin due to the way it operated its admissions policies.33 The school applied the traditional religious matrilineal rule, according to which to be Jewish, one must be born of a Jewish mother or to a woman who converted to Judaism prior to the child’s birth. The Supreme Court held that the school breached Section 1 of the Race Relations Act 197634 because its admission criteria were based on applicants’ ancestral origins, and not on their subjective perception as Jews and their practicing of the Jewish religion. Therefore, the admission test was not considered to be religious in nature, but rather ethnic based. The Supreme Court instructed the school to establish a new test that did made determinations of Jewish identity based not on ethnicity, but on religious practice. The ultimate irony is that this test projects onto Jews the Christian, voluntaristic understanding of religious membership, by establishing that a Jew is someone who participates in the observance of the Jewish religion. This case dealt with the claim of a non-Christian denomination to be placed on an equal footing with Christianity in the field of education – that is, within the public sphere. In England, a significant number of state-funded schools are faith-based schools. The overwhelming majority of them are Christian (Church of England and Catholic); only a tiny minority – less than 1 percent – of the maintained faith-based schools are not associated with the major Christian denominations.35 In this light, the Jewish school case seems to suggest that,

31 Stanislas–Marie–Adélaide De Clermont–Tonnerre, Speech on Religious Minorities and Questionable Professions, first published 1789, in The French Revolution and Human Rights: A Brief Documentary History (Lynn Hunt ed., 1996). 32 See for a critical reading of this case, Susanna Mancini, To Be or Not to Be Jewish: The UK Supreme Court Answers the Question, 6 European Constitutional Law Review 481–502 (2010). 33 R. v. The Governing Body of JFS, UKSC (2009) No. 15. 34 Section 1 Race Relation Act 1976: “(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if- (a) On racial grounds he treats the other less favourably than he treats or would treat other persons […].” 35 In January 2019, there were 6802 state-funded faith schools in England (around 34 percent of all state-funded mainstream schools). Church of England schools were the most common type among primary schools (26 percent of all primaries); Roman Catholic schools the most common at secondary level (9 percent). Non-Christian faith schools remained very much in the minority: when combined, they made up less than 1 percent of all state-funded mainstream schools. See Faith Schools in England, House of Commons Library, Briefing Paper Number 06972, December 20, 2019, p. 17.

8  Constitutions and religion to be equal in the public sphere, minorities are required to adapt to the mainstream religious culture by incorporating Christian attributes. The second condition put forward by Johns Rawls – that is, the “duty of civility” of religious and non-religious citizens – also proves problematic. The politicization of religion has produced a blurring of the line between faith and reason: religious arguments – often cast in the language of “natural law” – are increasingly invoked by political actors to antagonize the “culture of rights” and the very legitimacy of the dominant conception of constitutionalism and its nexus to the principle of secularism. An example of this tendency is provided by the launch, in 2019, by U.S. Secretary of State Mike Pompeo, of a “Commission on Unalienable Rights,” to introduce “reforms of human rights discourse where it has departed from our nation’s founding principles of natural law and natural rights.”36 The Commission is chaired by Harvard Professor Mary Ann Glendon, according to whom: the post-World War II dream of universal human rights risks dissolving into scattered rights of personal autonomy […] a range of novel sexual liberties might one day become the bread and circuses of modern despots – consolation prizes for the loss of effective political and civil liberties.37

Pompeo himself decried the merger between “unalienable,” or God-given, and man-made (ad hoc) rights – a dichotomy that contradicts the fundamental tenet of human rights law that all rights are universal and equal, interdependent and interrelated.38 Reliance on “natural law” and “natural rights” goes hand in hand with the elevation of religious freedom as a fundamentally unconstrained right. The Archbishop of Canterbury provided a vivid example of this conceptualization in a lecture delivered in 2008, when he decried: the reluctance of a dominant rights-based philosophy to acknowledge the liberty of conscientious opting-out from collaboration in procedures or practices that are in tension with the demands of particular religious groups: the assumption, in rather misleading shorthand, that if a right or liberty is granted there is a corresponding duty upon every individual to “activate” this whenever called upon.39

In this light, freedom of religion should include freedom of conscience – understood as an absolute right not to comply with general laws and policies that go against traditional Christian morality in the fields of sexual and reproductive rights.40 In the past years, countless cases have been litigated on both sides of the Atlantic concerning refusals to provide services to women 36 National Archives, Federal Register, A Notice by the State Department on 05/30/2019: Department of State Commission on Unalienable Rights, www​.federalregister​.gov/​documents/​2019/​05/​30/​2019​ -11300/​department​-of​-state​-commission​-on​-unalienable​-rights, last accessed January 3, 2020. 37 Mary Anne Glendon, Reclaiming Human Rights, First Things (August 2016), www​.firstthings​ .com/​article/​2016/​08/​reclaim​-human​-rights, last accessed January 3, 2020. 38 “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.” Art. 5, Vienna Declaration and Programme of Action (adopted by the World Conference on Human Rights in Vienna on 25 June 1993), www​.ohchr​.org/​EN/​ProfessionalInterest/​ Pages/​Vienna​.aspx, last accessed January 3, 2020. 39 Rowan Williams (Archbishop of Canterbury), Civil and Religious Law in England: A Religious Perspective – Temple Festival series at the Royal Courts of Justice, February 7, 2008. 40 Susanna Mancini and Michel Rosenfeld, Introduction. The New Generation of Conscience Objections in Legal, Political, and Cultural Context, in The Conscience Wars. Rethinking the

Introduction  9 and sexual minorities based on religious objections.41 These include mass objection by medical personnel to performing abortions;42 public servants refusing to register same-sex unions and therapists refusing to counsel gay clients;43 business owners refusing to provide insurance coverage for contraception for their employees;44 pharmacies turning away women seeking to buy emergency contraception;45 photo studios and bakers refusing to provide their services for same-sex weddings;46 hospital personnel objecting to carrying on administrative tasks;47 and hotels owners refusing to accommodate same-sex couples.48 Divisions within the dominant cultural and religious traditions figure prominently in the intensification of the “conscience wars” as a consequence of the widening divide between the revival already alluded to of strong religion and its repoliticization on one hand; and the expansion of secular liberalism’s fundamental rights to previously broadly excluded or discriminated-against segments of the polity – such as women and lesbian, gay, bisexual, transgender and queer (LGBTQ) persons – on the other.

3.

RELIGIOUS NATIONALISM AND RELIGIOUS POPULISM

The repoliticization of religion has tended to embrace two separate but often overlapping forms. The first of these is religious nationalism, which essentially consists of “the fusion of religious and national identities and goals.”49 The second is religious populism, whereby “traditional religion serves to legitimize a social order, a particular regime, or a political community against” what it casts as “destructive forces.”50 Balance Between Religion, Identity and Equality 1–20 (Susanna Mancini and Michel Rosenfeld eds., 2018). 41 See the chapter by Isabelle Rorive and Ana Maria Correa in this volume. 42 See, for example, the decision against Italy by the European Committee on Social Rights in International Planned Parenthood Federation European Network (IPPF-EN) v. Italy, Complaint no. 87/2012 (ECSR, decision adopted on September 10, 2013 and delivered on March 10, 2014). 43 See, for example, the Ladele and McFarlane decisions of the European Court of Human Rights in the joint cases of Eweida and Others v. The United Kingdom, Applications no. 48420/10, 59842/10, 51 671/10 and 36516/10 (January 15, 2013) and the decision in April Miller et al. v. Kim Davis, 15–5961 (Appellate Div., 6th Cir., 2015). 44 See, for example, the US Supreme Court decision in Burwell v. Hobby Lobby, 573 U.S. ___ (2014). 45 See, for example, the decision of the Spanish Constitutional Tribunal in S.T.C., July 7, 2015 (S.T.C., No. 52) (Spain). 46 See, for example, the decision of the U.S. Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018). 47 See, for example, the decision of the U.K. Supreme Court in Greater Glasgow Health Board (Appellant) v. Doogan and Another (Respondents) (Scotland) [2014] [2015] AC640, [2015] 2 All ER 1, [2015] 1 AC 640, [2014] UKSC 68. 48 See, for example, the decision of the U.K. Supreme Court in Bull and another (Appellants) v Hall and another (Respondents) [2013] UKSC 73. 49 Anna Grzymala-Busse, Religious Nationalism and Religious Influence, in Oxford Research Encyclopaedia, Politics 1 (2020) (online publication 2019), https://​ oxfordre​ .com/​ politics/​ view/​ 10​.1093/​acrefore/​9780190228637​.001​.0001/​acrefore​-9780190228637​-e​-813, last accessed January 20, 2020. 50 Jose Pedro Zúquete, Populism and Religion, in The Oxford Handbook of Populism 446 (Cristóbal Rovira Kaltwasser, Paul Taggart, Paulina Ochoa Espejo, and Pierre Ostiguy eds., 2017).

10  Constitutions and religion Since the Enlightenment, nationalism has been mainly correlated with secularism. Sociologists conceptualize nationalism as the product of the decline of religiosity among European intellectuals during the nineteenth century – a “surrogate theodicy,” which came to replace religion as the main binding force within a political community.51 As Ernst Gellner observed, nationalism became the expression of “a political principle which holds that the political and national unity should be congruent.”52 In our current predicament, however, religion has regained a crucial role in defining political identity. In canvassing through contemporary political identity, one is bound to encounter instances of religious nationalism, instances of religious populism and cases where the two join forces. Israel is a prime example of a religious nationalist state. Because Judaism is the religion of a given people, there is some fudging between the religion itself and the culture that defines “Jewish peoplehood.” In 2018, the Knesset adopted a highly controversial Basic Law entitled: “Israel – the Nation State of the Jewish People.” The Law stipulates, inter alia, that the land of Israel is the historical homeland of the Jewish people; that the state of Israel is the nation state of the Jewish people, in which it realizes its natural, cultural, religious and historical right to self-determination; and that exercising the right to national self-determination in the state of Israel is unique to the Jewish people53 – in spite of the fact that 20 percent of the country’s citizenry is Arab.54 Religious nationalism has also reclaimed a fundamental role in the former Soviet Union, where it has filled the void left by the demise of official communist doctrine. Indeed, in Russia, the Russian Orthodox Church (ROC) has become the elite’s most important ally in the promotion of “traditional values,” as the primary source of national identity; as an avenue to the country’s autonomous path of modernization; and as a way to assert Russia’s prominence in the new world’s order.55 In another telling case, the Turkish Justice and Development Party (AKP) led by Recep Tayyp Erdogan launched a neo-conservative Muslim political doctrine, as an alternative modernization project.56 Central to this is the use of religion to (re)define Turkish national identity, by recreating Turkish society through a romanticized version of the Ottoman past, as intertwined with Islam. In a reversal of Edward Said’s Orientalism, Islamic civilization is pitted against the secular West, and Islam is enlisted to consolidate the bounds of Turkish identity.57 As a consequence, the education system, judiciary, police and military schools have undergone a deep Islamization process;58 and Islam has become a “re-born element of the new Turkey and

See Anthony Smith, The Ethnic Revival in the Modern World (1981). Ernst Gellner, Nations and Nationalism (1st edition) 1 (1983). 53 Basic Law Israel – the Nation State of the Jewish People passed on July 19, 2018, https://​knesset​ .gov​.il/​laws/​special/​eng/​BasicLawNationState​.pdf, last accessed January 20, 2020. 54 See the chapter by Gila Stopler in this volume. 55 See the chapter by Kristina Stoeckl in this volume. See also Alicia Curanović, The Guardians of Traditional Values. Russia and the Russian Orthodox Church in the Quest for Status, 1 Transatlantic Academy Paper Series 3 (20142–15). 56 Alev Cinar, Modernity, Islam, and Secularism in Turkey: Bodies, Places, and Time (2005). 57 M. Hakan Yavuz, Erdogan’s Ottomania, Boston Review (August 8, 2018), http://​bostonreview​ .net/​politics/​m​-hakan​-yavuz​-erdogan​-ottomanophilia, last accessed January 20, 2020. 58 M. Hakan Yavuz and Ahmet Erdi Öztürk, Turkish Secularism and Islam Under the Reign of Erdoğan, 19 Southeast European and Black Sea Studies 1–9 (2019). 51 52

Introduction  11 has been transforming many areas such as: the media, the Kurdish issue, implementation of the rule of law, foreign policy and gender issues.”59 For its part, Hungary – by combining its 2012 Constitution with the leadership of Viktor Orban – provides an example of a versatile use of the rhetoric of religious nationalism which applies both to the country itself and to Europe as a political unit. The Hungarian Constitution’s Preamble “recognises the role of Christianity in preserving nationhood.” However, it also refers to the role of King Saint Stephen in making the country “a part of Christian Europe,” projecting the ethos of religious nationalism at the scale of both Hungary and Europe, as political units that are framed as Christian imagined communities.60 In his political programme to systematically prevent Muslim immigration (contrary to the country’s obligation under EU law), Orban heavily draws on the rhetoric of Christian nationalism. In 2015, he wrote in a German newspaper: Those arriving have been raised in another religion, and represent a radically different culture. Most of them are not Christians, but Muslims. This is an important question, because Europe and European identity is rooted in Christianity. Is it not worrying in itself that European Christianity is now barely able to keep Europe Christian? There is no alternative, and we have no option but to defend our borders.61

In the United States, an initially secular right-wing movement (the Tea Party) has been stirred toward religious populism through a partnership with Evangelical fundamentalists. What is at play here is a convergence between a free market ideology that mistrusts all but minimal government, and a Protestant interpretation of biblical sources. The resulting populism consists in emphasizing a perceived threat against America by the liberal “godless” political and cultural elites.62 In both Western Europe and North America, contemporary paroxysm around Muslim citizens and migrants goes hand in hand with a renewed emphasis not only on the Christian, but also on the secular roots of Western civilization. Indeed, Islamophobia seems capable of gluing together apparently irreconcilable components of European democracies: from openly racist populist parties – such as the French Rassemblement National – to secular defenders of women’s rights; and from Christian conservative circles to mainstream political actors. Anti-Muslim discourses are united by a common accusation: that of adhering to a religious value-system incompatible with Western democracy. On the one hand, political belonging is increasingly understood in terms of a distinction between the Western secular self and a religiously threatening Muslim other. At the same time, cultural Christianity has regained an overriding influence in constituting the imagined identity of Western peoples. One can think of many examples, including the French, Belgian and Quebecois bans on Muslim women’s traditional attires on the ground of laicité,63 on the one hand; and the decision of the U.S. Id. Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (2006). 61 Robert Mackey, “Hungarian Leader Rebuked for Saying Muslim Migrants Must be Blocked to ‘Keep Europe Christian’” The New York Times, September 2, 2015, www​.nytimes​.com/​2015/​09/​04/​ world/​europe/​hungarian​-leader​-rebuked​-for​-saying​-muslim​-migrants​-must​-be​-blocked​-to​-keep​-europe​ -christian​.html, last accessed April 27 2017. 62 Zúquete, supra note 50, at 448. 63 See the chapters by Ratna Kapur and by Susanna Mancini and Elena Cohen in this volume. 59 60

12  Constitutions and religion Supreme Court in Town of Greece, on the other hand. In the latter case, the court found that the delivery of a Christian prayer at the opening of the town board meeting does not violate the First Amendment prohibition of an establishment of religion, because “legislative prayer has become part of our heritage and tradition, part of our expressive idiom.”64 A similar dynamic is at play in India, where the Hindu right – a conservative religious political movement whose objective is to transform India into a Hindu state – seeks to weaponize secularism by promoting it as compatible with Hinduism and contrary to Islam.65 The interplay of secularism and religion has thus become a central feature of contemporary struggles over identity and citizenship. This dynamic ultimately blurs the line between secularism and religion: the first loses its historical and ideological component, and the latter ceases to be a belief system. Secularism and religion become empty, and yet powerful representations of romanticized identities that mark clear-cut divisions between insiders and outsiders.

4.

THE GLOBALIZATION OF RELIGION

Since the inception of the new millennium, religion has regained center stage internationally. Many factors have contributed to the internationalization of political religious activism, including the ideological void produced by the end of the East-West divide; the erosion of state sovereignty; the proliferation of diaspora religious cultures; and the spread of new media of communication. Pentecostal and Charismatic groups have spread dramatically worldwide, especially in the Global South; and so have transnational Islamic networks.66 On the one hand, globalization and mass-scale migrations have facilitated the detachment of religion, culture and territory, setting the premise for a fundamentalist turn of religion, because its claim of a universal truth is inherently disconnected from particular states and societies.67 Today, for example, one-third of the world’s Muslims live in non-predominantly Muslim states. Radicalization mostly occurs among the second and third-generation migrants in Western countries, who strive to establish an imagined Islamic community (an ummah), uprooted from any particular state or society. This, as remarked by sociologist Olivier Roy, has resulted in the building of a universal religious identity that transcends the very notion of culture.68 On the other hand, new communication technologies help keep alive the ties among members of dispersed religious communities, irrespective of political and geographical boundaries. As Mark Juergensmeyer has observed: Many of the online supporters of ISIS are tied not only by religious affiliations but also by ethnic ones, since many are part of Algerian, Libyan, and other diasporic communities. Expatriates such as Irish Republicans, Indian Sikhs, and both Sinhalese and Tamil Sri Lankans have provided both funding and moral support to their compatriots’ causes.69

66 67 68 69 64 65

Town of Greece v. Galloway, 572 U.S. 565 (2014). See the chapters by Ratna Kapur, and by Ronojoy Sen and Farrah Ahmed in this volume. Jonathan James, Transnational Religious Movements: Faith’s Flows (2017). Olivier Roy, Holy Ignorance: When Religion and Culture Part Ways (2010). Olivier Roy, Globalized Islam. The Search for a New Ummah (2004). Mark Juergensmeyer, Religious Nationalism in a Global World, 10 Religions 97 (2019).

Introduction  13 Interestingly, the success of transnational religions is not limited to movements such as Pentecostalism, which do not rely either on a highly centralized structure or on historical links to tradition while having no territorial roots or identity. To the contrary, globalization has set the terrain for Catholicism to recuperate its transnational dimensions “which had been characteristic of medieval Christendom, from the transnational Papacy to transnational religious orders, to ecumenical councils, to transnational universities and centers of Catholic learning, to transnational pilgrimages,” and which had disappeared with the emergence of the Westphalian system.70 The repoliticization of religion has profoundly shaken the foundations of the Westphalian model of coordination of religion and political boundaries.71 The Peace of Westphalia, which brought about the end to the Thirty Years’ War, established the principle according to which each sovereign would have the right to determine the religion of his own state (cuius regio eius et religio). To achieve this aim, “territorial arrangements were adjusted to accommodate religions and minimize immigration.”72 Moreover, Westphalia obliged states to confer fundamental religious freedoms to non-established Christian minorities, thus establishing a principle of religious toleration.73 This produced two crucial consequences: in the first place, it enabled states to regulate religion as part of state sovereignty, which encompassed the power to determine the frontiers of religious jurisdiction. In the second place, Westphalia “secularized international relations by undermining religion as a mode of legitimacy.”74 The sovereign state became the basic unit of international relations, in a system in which each state recognized the others as the final authorities within their given territories.75 State rulers thus ceased supporting their co-religionists in their conflicts beyond the borders of their own polity, which greatly limited the Vatican’s extraterritorial authority. As Leo Gross famously put it, in this respect Westphalia “was said to be ‘a public act of disregard of the international authority of the Papacy.’”76 Our current predicament is increasingly characterized by an “undoing” of Westphalia77 – that is, by the reappropriation by religions of an international role; by the competition of religious worldviews; by states’ claims of extraterritoriality in the field of religion; as well as by religious conflicts and wars of religion. In 1998, the U.S. Congress adopted the International Religious Freedom Act, which mandates the promotion of religious freedom around the world as a core element of U.S. foreign policy. The Office of International Religious Freedom was established with the task of monitoring religious persecution and discrimination worldwide; recommending and implementing 70 José Casanova, Public Religions Revisited, in Religion: Beyond the Concept 101–19 (Hent de Vries ed., 2008). 71 Mancini, supra note 27, at 421–32. 72 Gordon A. Christenson, Liberty of the Exercise of Religion in the Peace of Westphalia, 21 Transnational Law & Contemporary Problems 739 (2013). 73 Christenson, supra note 72, at 740. 74 Benno Teschke, The Myth of 1648: Class, Geopolitics and the Making of Modern International Relations 3 (2003). 75 Derek Croxton, The Peace of Westphalia of 1648 and the Origins of Sovereignty, 21 The International History Review 570 (Sep. 1999). 76 Leo Gross, The Peace of Westphalia, 1648–1948, 42 The American Journal of International Law 28–29 (1948). 77 Daniel Philpott, Religious Freedom and the Undoing of the Westphalian State, 25 Michigan Journal of International Law 981–98 (2004).

14  Constitutions and religion policies in respective regions or countries; and developing programs to promote religious freedom. The U.S. model was soon replicated by Canada and the European Union.78 Exporting American (or Western) religious freedom internationally79 inevitably carries the risk of Westernizing religion. Indeed, identifying from a Western perspective which forms of religion are to be protected and which are not risks altering and/or marginalizing religious expressions that do not fit the Western model or do not serve Western interests.80 International protection of religious freedom can thus turn into an imperialistic attempt of cultural colonization which risks fueling violence rather than promoting religious peace. The “export” of religion is by no means a singular Western phenomenon. The Turkish AKP also heavily relies on Islam in its foreign policy. “In countries from Latin America to sub-Saharan Africa, Turkey is building mosques, financing religious education, restoring Ottoman heritage – and advertising its unique brand of Islamic leadership along the way.”81 Conflating Sunni Islam with national identity, Turkish institutions engage in the international promotion of their language and culture alongside religious curricula, portraying Turkey as the “heir to the Ottoman Empire, Islam’s last fortress and the natural leader of a revival of Muslim civilization.”82 Similarly, Iran and Saudi Arabia compete worldwide to establish their brand of Islam by funding religious organizations and financing the building of mosques abroad.83 Religion has also become a crucial element of Russia’s foreign policy, where the convergence of interests between the political leadership and the ROC is responsible for shaping the country’s international human rights agenda, according to “traditional values.” The ROC has designed its human rights agenda “as an ‘alternative’ human rights discourse, in competition with secular liberal human rights activists.”84 Domestically, the ROC aims to prevent any liberalizing influence of international human rights on family law. Internationally, the ROC – exhausted by decades of litigation before the European Court of Human Rights (ECtHR) – pursues its interests by seeking conservative allies, such as American right-wing Evangelicals, the Vatican and other conservative Christian churches. The Russian leadership, for its part, favors a multipolar international system not bound by international human rights law, in order to avoid international interference in its domestic politics.85 These developments have turned the United Nations (UN) into a venue of bitter confrontation among supporters of different conceptions of religious freedom and, more generally, of the role of religion in the international legal order. In 2011, the UN Human Rights Council passed a resolution entitled “Promoting human rights and fundamental freedoms through

Pasquale Annicchino, Law & International Religious Freedom. The Rise and Decline of American Model (2017). 79 For a historical analysis of the US engagement in the international protection of religious freedom see Anna Su, Exporting Freedom: Religious Liberty and American Power (2016). 80 Elizabeth Shackman-Hurd, Beyond Religious Freedom: The New Global Politics of Religion (2015). 81 Gonul Tol, Turkey’s Bid for Religious Leadership How the AKP Uses Islamic Soft Power, Foreign Affairs (January 2019), www​.foreignaffairs​.com/​articles/​turkey/​2019​-01​-10/​turkeys​-bid​ -religious​-leadership, last accessed January 20, 2020. 82 Tol, supra note 81. 83 Tol, supra note 81. 84 Kristina Stoeckl, The Russian Orthodox Church and Human Rights 50 and 95 (2014). 85 Stoeckl, supra note 84, at 113. 78

the

Introduction  15 a better understanding of traditional values of humankind.”86 The resolution – which echoes the position of the ROC concerning the foundations and scope of human rights – was prompted by the Russian government, which gained the support of the Global South, including countries of the Arab league. The European Union pointed to the “potential harm posed by the concept of traditional values in undermining the universality and inalienability of human rights.”87 Hence the resolution can be viewed as part of an attempt by Russia to reaffirm the transcendent foundations of human rights and the role of religion in shaping the international human rights regime as a strategy to impose an ideological monopoly. This is achieved by bringing together conservative governments and religious actors from different Christian denominations, unified by an agenda mostly focused on opposing LGBTQ rights and women’s equality.88 Transnational religious actors actively engage in both domestic and international litigation.89 Numerous nongovernmental organizations (NGOs) and pro-bono legal organizations specialize in high-impact litigation before national, regional and international judicial bodies, such as the ECtHR, in cases regarding “sensitive” issues such as gay marriage, abortion, conscientious objection and religious freedom. Many of these lobbies are based in the United States, and have offices or branches in Europe and elsewhere, where they cooperate with local partners through training, funding and legal advocacy. The conservative Christian Alliance Defending Freedom, for example, defends “religious freedom, the sanctity of life, and marriage and family around the world,” on the ground that “international cases have the potential to set legal precedents that cross national borders and even impact US law.”90 A powerful network of faith-based NGOs – mainly led by US Evangelicals and other right-wing Christians – has also become highly influential in constitution making and in shaping legislation abroad. In Africa, organizations such as the American Center for Law & Justice, Human Life International and Family Watch International have been progressively colonizing African values by “expanding colonial-era proscriptions” on sexual rights. The success of such organizations is due to their capacity to “espouse charismatic and other conservative theologies [that] resonate with many African Christians,” while simultaneously “painting African campaigners for LGBT rights as dupes of neo-colonial forces trying to impose an alien philosophy on the continent.”91

86 Resolution A/HRS/16/L.6 entitled “Promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind”, March 24, 2011. 87 EU Statement to the Human Rights Council, September 13, 2013. 88 See UN High Commissioner for Human Rights, Summary of information from States Members of the United Nations and other relevant stakeholders on best practices in the application of traditional values while promoting and protecting human rights and upholding human dignity, A/HRC/24/22, para 3, cautioning against the negative impact on the implementation of human rights, “especially those concerning violence against women, sexual orientation, gender identity, age and disability.” 89 See Christopher McCrudden, Transnational Culture Wars, 13 International Journal of Constitutional Law 434–62 (2015). 90 Alliance Defending Freedom, www​.adflegal​.org/​issues/​international/​overview, last accessed 3 May 2020. 91 Kapia John Kaoma, Colonizing African Values: How the U.S. Christian Right is Transforming Sexual Politics in Africa VI (2012), www​.sxpolitics​.org/​wpcontent/​uploads/​2012/​08/​ colonizingafricanvaluespra​.pdf, last accessed January 20, 2020.

16  Constitutions and religion

5.

ORGANIZATION OF THE HANDBOOK

The various chapters of this handbook collectively analyze and address the essence of the issues laid down in the previous pages. They do so mainly through the lenses of comparative constitutional law. Indeed, in recent years, studies by comparative constitutional law scholars have played an important role in the global debate concerning the legal treatment of religion in the public sphere. The “place” of religion in the constitutional order is a crucial indicator of the nature of the constitution, which greatly contributes to shaping the relationship between national and constitutional identity. What forms of church-state relations and how much – if any – religious freedom is required in a constitutional system are markers of the liberal/illiberal nature of the system; of the fundamental values it adheres to; and of the aspirations of a state in the international community. Moreover, the epistemological perspective taken by comparative constitutional lawyers often differs from the traditional approach of law and religion scholars, in that it places religious issues within a broader perspective – one that assesses the impact of a state’s structures on the enjoyment of religious freedoms. Factors such as the horizontal separation of powers, the control mechanism of checks and balances, the model of constitutional adjudication and issues of federalism and devolution profoundly affect the protection of fundamental rights, and thus of religious freedom. Furthermore, at a time when international human rights regimes are increasingly contested, the comparative constitutional law discipline provides for critical analysis of the limits of universalism, local relevance and applications. This being said, no single discipline may alone do justice to the complexities and the nuances that are raised by the treatment of religion in a constitutional setting. Thus, the authors of this Handbook also provide their insights from legal and political theory, sociology and political science. Across all of their contributions, however, there is a recognition that in the contemporary context, neither constitutionalism nor religion can be fully grasped without a focus on their inescapable connections. Part I of the Handbook tackles philosophical and historical issues. It explores the history of state/church relations and the meaning of concepts such as religious toleration, secularism and religious liberty, in different times and contexts. Part II offers an account of the different constitutional models of managing state/religion relations. Countries are grouped according to functional and regional criteria. This seems preferable to linking countries according to particular characteristics (e.g. the level of entanglement between religion and the state), for two reasons. The first is that the constitutional treatment of religion crystallizes a relationship between distinct entities: the state and one or more religious denomination(s). Hence, the presence of a common religious tradition constitutes a major advantage for any survey of the relations between religion and the state. The second is that the development of regional systems protecting human rights (e.g. the European Union, the ECtHR and the Inter-American Commission on Human Rights) has contributed to the shaping of common grounds among state parties in the protection of religious freedom. Part III addresses how religion affects constitution making and the political party system. Part IV tackles the supranational dimension of religion and religious freedom. It focuses on the conceptualization of religious freedom and of state/church relations in supranational law, as well as on the role of religion in international relations, and the circulation of constitutional arguments that results from judicial lobbying by transnational religious actors. Finally, Part V highlights some of the new, intensified or continuous issues of great interest in the era of the deprivatization of religion, including the

Introduction  17 relationship between gender and religious freedom, conscientious objection, the integration of Islam in Western constitutional settings and the regulation of blasphemy. The contributions to Part I, which focuses on history and philosophy, start with Michel Rosenfeld’s chapter. Rosenfeld offers a Western account of the theoretical and historical development of constitutional secularism and of the principal constitutional models to regulate the church/state relations, from the militant secular model to the model that features an official state religion while commanding tolerance of other denominations. In Chapter 3, Ratna Kapur examines the contradictions and complexities present in the notion of secularism, by comparing its applications in postcolonial India and the French Republic. In particular, she focuses on the implications of the Western and non-Western models of secularism relating to the understanding of citizenship. In contrast, in Chapter 4, Andrew March explores a distinctly non-secular constitutional tradition, by tackling the developments in modern Islamic constitutional theory, with a particular focus on the late twentieth century, when a distinct approach to questions of sovereignty, legal supremacy, judicial review and legislative authority was developed. Finally, in Chapter 5, Peter Danchin – in analyzing a series of recent constitutional and international human rights cases concerning religious freedom – underscores the paradoxes and antinomies internal to the relationship between political secularism and universal rights. These have far-reaching implications for our understanding of religious freedom as a fundamental right subject to the political rationality of the modern state. Part II, on different models for managing the relationship between religion and the state in various regions of the world and under different legal and religious cultures, starts with Chapter 6 by Silvio Ferrari. Ferrari describes the main historical steps that marked the formation of the idea and of the right of religious freedom in Europe, and highlights the peculiarities and the internal variations of the European model. Chapter 7, by Dia Dabby and Jean-François Gaudreault-DesBiens, zeroes in constitutionalism and religion in two common law countries, Canada and the United States. The authors suggest that transversal frameworks permeate both countries and underline particular axes of convergence and divergence between the two in order to underscore the interplay of constitutionalism and religion in such matters as religious prayers in public institutions, marriage and end-of-life decisions. Julieta Lemaitre Ripoll offers in Chapter 8 an account of the key historical developments in yet another predominantly Christian region: Latin America. She demonstrates how religious freedom was initially asserted by secular liberals against the confessional nineteenth century constitutions. Since the 1990s, however, religious freedom has found a new champion in the Catholic Church, eager to find constitutional protection against increasingly liberal governments in the region. In Chapter 9, Charles Manga Fombad examines, from a comparative perspective, the manner and extent to which religious rights are now recognized, protected and entrenched in modern African constitutions. Fombad emphasizes the diverse approaches taken on the African continent toward the constitutionalization of religious rights and concludes that the full enjoyment of such rights is hampered in practice by an array of challenges. Chapter 10, by Abdullahi Ahmed An-Na‘im, raises the question whether Islam as a religion can be captured by the concepts, approaches, processes and analytic tools of comparative constitutionalism. He places particular emphasis on viewing Islam from the perspective of the post-colonial state. Through a historical account of Islam and the development of Sharia, An-Na‘im explains, constitutionalism cannot succeed in Muslim majority countries without adjustments and adaptations. In Chapter 11, Roshan de Silva-Wijeyeratne delineates Buddhist constitutionalism, which originates with the birth of the Buddha in his particular political context. He focuses

18  Constitutions and religion specifically on the colonial and post-colonial aftermath of this tradition, which he reinterprets as a means of tackling evolving political conditions as opposed to the original essentialist understanding. Gila Stopler offers in Chapter 12 a critical analysis of the relationship between constitutionalism and religion in Israel as a Jewish and democratic state. Although Israel is generally considered a Western liberal democracy, in terms of religion-state relations it exhibits a semi-liberal constitutionalism, which shares commitments to liberal universalist values and to Orthodox Jewish religious values. This poses difficult challenges for human rights, and especially for women’s equality and the proper scope of religious freedom. Chapter 13, by Ronojoy Sen, engages with the complexities of the Indian Constitution’s position vis-a-vis Hinduism by looking at three aspects: the reasoning behind the relationship between state and religion as it emerged in India’s Constituent Assembly; the judicial interpretation on the freedom of religion clauses with regard to Hinduism; and the right of religious sects or denominations to exit Hinduism. In Chapter 14, Kristina Stoeckl analyzes the current post-Soviet model of managing the relationship between religion and the state in Russia, which she defines as a deficient model of selective cooperation. Indeed, in Russia, three inconsistent models of the relationship in question are at play: that which promotes the ROC as a partner of the state and representative of a majority; a cooperation model, in which the ROC presents itself as a minority in need of protection; and a disestablishment model, in which the ROC acts like a “culture war” antagonist against the state. In Part III, Francesco Biagi and Luca Ozzano address two crucial aspects of the role of religion in shaping, respectively, the making of the constitution and the state’s political party system. Biagi, in Chapter 15, provides an overview of the actors that contribute to shaping the content of constitutional provisions concerning religion and the factors that influence the issue of religion in constitution-drafting processes. He focuses on comparative post-Second World War constitutions and discusses the most contentious issues relating to religion that emerge during debates within constituent bodies. Ozzano, in Chapter 16, draws on examples from different regions and cultural contexts to provide a typology that underscores five models of “religiously oriented” parties, marked by different ideologies, organizational models, social bases, interactions with interest groups and goals. In Part IV, religious freedom is analyzed in the context of supranational constitutionalism. In Chapter 17 András Sajó and Renáta Uitz focus on freedom of religion under the European Convention of Human Rights. According to them, the ECtHR has displayed a rather generous acceptance of the subject of permissible limitations of religious liberty. Moreover, the ECtHR tends to be less demanding in its use of the standard of proportionality when considering religious liberty rights as opposed to other Convention rights. Chapter 18 by Ronan McCrea shows how issues that arise in the relationship between religion and the constitutional order in liberal democracies generally also arise in a distinctive form within the constitutional order of the European Union. The Union seeks to strike a balance between its need to protect its own distinctive constitutional values and the need to respect member state autonomy in religious matters. The Union’s approach to religion is based on two pillars: a predominantly Christian religious heritage of its member states; and a strong secular and humanist tradition that limits the political and legal influence of religion, and requires some degree of separation between religion and state. Finally, in Chapter 19, Christopher McCrudden focuses on the dramatic increase of human rights litigation regarding religious freedom issues. Three ideological developments are responsible for this: first, developments in human rights doctrine resulting in greater conflicts between religious practices and human rights; second, a fundamentalist turn

Introduction  19 within several religions; and third, the geopolitical significances of ideological tensions related to religion. Religion litigation has also increased because of several institutional factors: the courts have become more available; activism by NGOs has risen; and intra-religious factionalism has fueled further conflicts. Part V of the Handbook, which tackles some of the most salient challenges and controversies in a world marked by the repoliticization of religion, starts with Chapter 20, by Susanna Mancini and Elena Cohen. The authors revisit the debate launched by Susan Okin in the 1990s on the perils of accommodating minority religions for the pursuance of gender equality. They argue that while these tensions can by and large be navigated by legal systems, notions of secularism and gender equality are often used to assert Western cultural superiority. Most importantly, however, in recent times, the backlash against women’s equality has primarily resulted not from the accommodation of religious minorities, but from the weaponization of majority religions within legal systems to reassert traditional gender roles. In Chapter 21, Isabelle Rorive and Ana Maria Corrêa trace the legal narrative of conscientious objection based on religious and other ethically salient grounds. They demonstrate how this rhetoric has evolved from military contexts to a broad range of situations, including public health, public administration and the provision of goods and services; and they assess the impact of these developments on protections under the right of equality. In Chapter 22, Christian Joppke concentrates on the place of Islam in European constitutional law and jurisprudence. He draws attention to the distinction between Islamic parity claims, which call for equal treatment between Muslims and non-Muslims, and for exemptions from those secular rules that conflict with perceived Islamic religious norms. Joppke concludes that while parity claims are incontrovertible, exemption claims are more problematic and thus cannot be fully accommodated. In Chapter 23, based on the example of Ireland, Neville Cox argues that although blasphemy laws objectively limit free speech, when properly handled under the principle of proportionality, they can strike a desirable balance between freedom of expression and public morality. Finally, in Chapter 24, Farrah Ahmed – focusing in particular on the Indian case – examines whether personal law systems that regulate family matters based on religious doctrine contribute successfully to the promotion of religious pluralism.

PART I HISTORY, CONCEPTS, THEORIES

2. Constitution and secularism: a Western account Michel Rosenfeld

1. INTRODUCTION Modern liberal constitutionalism requires some form of secularism. At a minimum, the constitutionalism in question calls for a limitation on the powers of government; adherence to the rule of law; a significant protection of fundamental rights, including some version of a freedom of religion right; and guarantees for maintaining an adequate level of democracy.1 On the other hand, at the very least, the secularism at stake must exclude complete fusion between the state and one particular religion – presumably that followed by the country’s majority – while including some modicum of tolerance for religious diversity. Consistent with this, a constitution that provides in its Article 1 that “The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with Islam as its religion; God’s Book and the Sunnah of His Prophet, God’s prayers and peace be upon him, are its constitution […]” establishes a “constitutional theocracy”2 and is thus incompatible with both liberal constitutionalism and secularism. Beyond a case such as that of Saudi Arabia, where a particular religion – or, more precisely, one among several competing interpretations of it – figures as the constitution, however, the relationship between constitutionalism and secularism, and the precise meaning of each of these two terms, loom as open ended and, for the most part, vigorously contested. There are not only competing conceptions of “secularism,” but also conflicts regarding whether liberal constitutionalism must be secular through and through, or whether it suffices for it to allow for some measure of secularism. Secularism, moreover, is to a large extent defined in terms of what is understood as “the secular.” And that, in turn, may figure within religion, inasmuch as a religion may distinguish – as does Christianity – between what pertains to the realm of God and what belongs to the realm of Caesar; or against religion in the sense of carving out a governmental or public sphere where all religion is systematically excluded. Furthermore, the conjunction of liberal constitutionalism and secularism implies commitment to some degree of pluralism, to the extent that the constitutional project carved out by the two requires the accommodation of some degree of religious diversity; or more generally, a plurality of competing conceptions of the good, some being religious in nature and others non-religious. In the context of the Western tradition, the concept of the secular is grounded in, and derived from, Christianity and its cultural heritage. Unlike Christianity, the two other major religions

1 See Michel Rosenfeld, Is Global Constitutionalism Meaningful or Desirable?, 25 Eur. J. Int’l L. 177, 178 (2014). 2 See Norman Dorsen et al., Comparative Constitutionalism: Cases and Materials 77 (3d. ed. 2016).

21

22  Constitutions and religion in the West – Judaism and Islam – have no comparable conception of the secular.3 Initially, in Christian Western Europe, the secular was entirely encompassed within a single religion. After the bloody wars of religion pitting Catholics against Protestants in the sixteenth and seventeenth centuries in Europe, secularism was deployed to entrench a peaceful co-existence among Christian religions. And finally, by the time of the Enlightenment at the dawn of modern constitutionalism following the American and French late eighteenth century revolutions, secularism gained independence from religion as a whole, as well as from all particular religions within the polity.4 In the context of contemporary Western constitutional democracies, secularism remains conceptually distinct from religion, but constitutional secularism does not uniformly structure the relationship between religion of the state. As we shall see below, there are several constitutional models – ranging from total separation between religion and the state to adoption of an official state religion while prescribing tolerance for non-state religions – which conform to the dictates of constitutional secularism. In our times, moreover, there has been a worldwide revival, “deprivatization” and “repoliticization” of religion,5 which has posed challenges to the coherence and viability of secularism as a pillar of, among others, Western constitutional democracy. To obtain a better handle on Western constitutional secularism and its challenges, Section 2 below provides a brief overview of the intellectual history of the Western concept of secularism or of the secular. Section 3 in turn focuses on the adoption of the Enlightenment-based conception of secularism as an institutional anchor of modern Western constitutional democracy. Section 4 describes and compares the principal constitutional models for handling the relationship between religion and the state within the confines of institutional secularism. Finally, Section 5 examines the challenges posed to institutional secularism by the recent revival of religion and explores plausible responses that may be made to these challenges from the standpoint of modern Western constitutionalism.

3 Judaism has a comprehensive legal system that it posits as divine in origin, thus leaving no room for any division tracking the Christian one between the realm of God and that of Caesar. In the diaspora, however, Judaism commands obeying the law of the land so long as the latter is consistent with the Noachide code – that is, the divinely prescribed norms applicable to humanity as a whole. Suzanne L. Stone, In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory, 106 Harv. L. Rev. 813‒94 (1993). Similarly, when in the diaspora, Muslims are supposed to enter into constrained engagements with the land’s civil authorities. See Andrew F. March, Are Secularism and Neutrality Attractive to Religious Minorities? Islamic Discussions of Western Secularism in the “Jurisprudence of Muslim Minorities” (Fiqh Al-Aqalliyyat) Discourse, in Constitutional Secularism in an Age of Religious Revival 298‒306 (Susanna Mancini and Michel Rosenfeld eds., 2014). 4 See Michel Rosenfeld, The Conscience Wars in Historical and Philosophical Perspective, in The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality 52‒55 (Susanna Mancini and Michel Rosenfeld eds., 2018). 5 See José Casanova, Public Religions in the Modern World 3–6 (1994).

Constitution and secularism: a Western account  23

2.

THE INTELLECTUAL CHRISTIAN ORIGINS OF THE WESTERN CONCEPT OF SECULARISM

When placed in its proper historical context, the concept of “secularism”6 or “the secular” evokes a very different set of connotations. This concept derives from the Christian tradition and its origin traces back to the reference made in the New Testament to Jesus’ dictum to render unto Caesar what is Caesar’s and to God what is God’s.7 Augustine further elaborated this distinction through the contrast he drew between the “City of God” and the “City of Man.”8 Later in the medieval era, the term “secularis” was used to designate those members of the clergy who worked with people within society in contrast to their brethren who were exclusively devoted to spiritual pursuits within the confines of monastic life.9 What is most striking about all three of these historical references is that the secular is wholly encompassed within a single religion10 and that, from its very beginnings, Christianity has set a divide between the spiritual realm and the arena of politics. A different conception of secularism became prevalent after the sixteenth century Protestant Reformation split Western Christianity into two. At first, the newly religiously divided Europe embraced the slogan cuius regio, eius religio, also referred to as “one king, one faith, one law,”11 which required weaving together religion, the state and politics to secure the hegemony of the dominant religion throughout the realm. After a series of fierce and bloody wars of religion pitting Catholics against Protestants in several European realms throughout the sixteenth and seventeenth centuries, however, secularism reentered the scene in a new guise as a buffer among religions. Indeed, it became apparent that war would not eradicate the split within Western Christianity, and that reaching a modus vivendi among Catholics and Protestants was preferable to ongoing violence. Accordingly, support grew for the idea that there ought to be room for tolerance of the religion that happened to be in the minority within a particular polity by the latter’s majority religion. Moreover, for there to be the requisite locus for tolerance without compromising theological truth, it was necessary to effectuate some disentanglement of the realm of politics from that of religion. In this setting, secularism could keep the antagonistic religions at arm’s length, so long as neither of them could muster a decisive victory over the other. The secularism involved had to remain within Christianity, but had to avoid favoring Catholicism or Protestantism, so it could serve as a buffer between them. Furthermore, the instantiation of the secularism under consideration was amenable to being located within Christianity in two mutually reinforcing ways. First, the kind of disentangled politics neces-

6 The term “secularism” was first used in the mid-nineteenth-century (see George Jacob Holyoake, The Origin and Nature of Secularism 51 (1896)), but the concept associated with this term traces back to antiquity. 7 Matthew 22:21. 8 Augustine, De Civitate Dei Contra Paganos, translated into English as The City of God Against the Pagans (5th century CE). 9 See A. Boudinhon, Secular Clergy, in The Catholic Encyclopedia, www​.newadvent​.org/​ cathen/​13675a​.htm, last accessed January 3, 2020. 10 Giving to Caesar what is Caesar’s does not necessarily derive from any religion; but doing so to conform to the Word of Jesus does fully incorporate obedience to a worldly non-Christian ruler within the edicts of Christianity. 11 See Joseph Lecler, Les origines et le sens de la formule: Cuius regio, eius religio, in Recherches de Science Religieuse 38 (1951).

24  Constitutions and religion sary for coexistence could certainly promote Christianity (and that would be fully consistent with the standpoint of the antagonistic Christian religions), so long as it left sufficient room for tolerance of all Christian religions within the realm.12 And second, this newly minted brand of secularism could build upon the distinction between the sacred and the secular found in the formerly united Christian religion. In other words, even in united Christianity, the spiritual is separated from the political, and therefore this already entrenched separation can readily be adapted in order to accommodate a plurality of Christian spiritual perspectives coupled with a separate political sphere shared in common by all Christians regardless of their religious differences.13 The next important turn in the historical journey of secularism coincided with the deployment of the philosophy of the Enlightenment and was molded by the two late eighteenth-century revolutions, the American and the French, which set the stage for the advent of modern constitutional democracy. Although these two revolutions were certainly imbued by general Enlightenment ideas regarding secularism, they each left a distinct historical imprint on the evolving connotations of the concept. The French Revolution was strongly anti-clerical, rather than anti-religious;14 and its anti-clericalism, combined with its antagonism against the aristocracy, is to be placed in the context of its struggle to topple feudal privilege to establish rule by the Third Estate.15 Moreover, the French Revolution brought forth a republican ideal inspired by Rousseau’s political philosophy, which promoted democratic self-government for a polity of equal citizens bound together by a social contract. Drawing on Rousseau’s distinction between the citizen and the bourgeois,16 the French Revolution’s constitutional vision left no room for group-based allegiances or interests in the public sphere. This was dramatically illustrated by the famous dictum of Clermont-Tonnerre in connection with the emancipation of the Jews during the French Revolution:

12 The actual history of relationships between Catholics and Protestants in the various European realms in which they were in conflict during the sixteenth and seventeenth centuries veered at times far afield from the above-mentioned theoretical conception of mutual tolerance as a means of peaceful coexistence. For example, in France the Edict of Nantes proclaimed in 1598 by King Henry IV accorded substantial rights to French Protestants to promote mutual tolerance at the end of a century that saw bloody wars of religion. This edict was revoked, however, by King Louis XIV in 1685, prompting France’s Protestants to flee in massive numbers. See Coexister dans l’Intolérance (Michel Grandjean and Bernard Roussel eds., 1998). 13 It may well be that the Christian divide between the sacred and the secular may be better suited to Protestantism than to Catholicism, given the unique institutional and political role played by the Catholic Church since the consolidation of Christianity in medieval Europe. On this last point, see Gustavo Zagrebelsky, One Among Many? The Catholic Church Between Universalism and Pluralism, in Mancini and Rosenfeld (eds.), supra note 3, at 247‒68. Be that as it may, the concept of the divide in question, however interpreted or implemented, is a truly Christian one that has no equivalent in the other Abrahamic religions. See note 27 below. 14 See Michael Collins and Matthew A. Price, The Story of Christianity: Two Thousand Years of Faith 176 ff. (2003). 15 See Emmanuel Joseph Sieyès, What is the Third Estate? (1789). 16 See Jean-Jacques Rousseau, 2 The Social Contract 2–3 (1762).

Constitution and secularism: a Western account  25 Everything must be refused to the Jews as a nation and everything must be accorded to the Jews as individuals […] they must be individual citizens […] It would be repugnant to have groupings of non-citizens within the state, a nation within the nation.17

In short, the two salient features of secularism in the context of the French Revolution were an attack against the political power and privileges of the dominant institutionalized organized majority religion combined with a call to every citizen to suppress the calls of his or her religious allegiance when called upon to fulfill the republican duty of self-government within the political sphere. Although the secularism in question differs from laïcité, which originated in the nineteenth century,18 it certainly prefigures the latter. The American Revolution – which was, above all, a war of independence – also rejected the aristocratic ways and the dominant religion, which in this case was (and continues to be) the official state religion, of its English colonizer. Beyond that, however, the U.S. Constitution set out a late eighteenth-century secularism that differs markedly from its contemporaneous French counterpart. American constitutional secularism is encapsulated in the First Amendment’s “Religion” clauses, namely the “Establishment Clause” and the “Free Exercise Clause.”19 On the surface, these two religion clauses may seem to call for a public sphere purged of religion combined with a private sphere constitutionally protected to allow for optimal religious flourishing. But when placed in their historical context, and in light of the conflicting interpretations they have fostered throughout American constitutional history, the clauses in question project a rather different image of secularism. It has often been observed that the two clauses are in tension with one another, with the Establishment Clause calling for state disengagement from religion and the Free Exercise Clause requiring state involvement to provide meaningful sustenance to religious practice and expression.20 These tensions reflect an ambivalence concerning the optimal relationship between the state and religion which is traceable to America’s colonial period, when it became an immigration haven for minority, persecuted and dissident religions and religious movements. For example, in the seventeenth century, the 13 American colonies saw significant immigration of Huguenots, who fled from persecution in France;21 and of Puritans, who as dissenters within the Church of England felt increasingly socially ostracized at home and therefore opted to resettle across the Ocean.22 This pattern of immigration by religious minorities persecuted within their country of origin has continued throughout the history of the United States. Consistent with this, at a minimum, exclusion should prevent the functional equivalent of a state religion which would recreate conditions similar to those that prompted large waves of immigrants to leave their country of origin. Conversely, given American society’s steadfast

17 Cited in Pierre Birnbaum, Un Mythe Politique: “La République Juive” 44–5 (1988) (author’s translation). 18 Pierre Birnbaum, On the Secularization of the Public Square: Jews in France and in the United States, in Mancini and Rosenfeld (eds.), supra note 3, at 136‒45. 19 The relevant language is: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” U.S. Constitution. amend. I. 20 See, for example, Norman Redlich et al, Understanding Constitutional Law 510–29 (2005). 21 See John Butler, The Huguenots in America: A Refugee People in New World Society (1992). 22 See Sydney E. Ahlstrom, A Religious History of the American People 121 ff. (1972).

26  Constitutions and religion commitment to religion,23 at a maximum, the public sphere should be inclusive of all that the various religions within the country share together. Ideally, therefore, consistent with this vision, American secularism should at once favor religion over irreligion and prohibit discrimination among religions. As a matter of history and of constitutional jurisprudence, however, the American approach has in fact often promoted, rather than eradicated, discrimination among religions. Thus, for example, there still is a current debate among U.S. Supreme Court justices concerning religions that do not revere a transcendent Supreme Being, thus potentially leaving out such religions as Buddhism and Hinduism.24 Moreover, perhaps most notoriously, the U.S. Supreme Court has set a sharp divide between religious faith and acts or practices commanded by religion, in apparent accord with what could be understood as a Christian if not a downright Protestant conception of religion. This is reflected in decisions rejecting claims to constitutional protection of acts commanded by religion,25 and has led to the assertion that the Religion Clauses jurisprudence has been modeled on a Protestant conception of religion.26 The preceding brief historical review of the broad outlines of the evolution of the concept of secularism from the Middle Ages until the Enlightenment highlights the latter as being distinctly Christian in nature. Secularism, however, is by no means equally suited to the needs of the other two major Western religions, Islam and Judaism. Indeed, these latter religions do not adhere to an internal division akin to the Christian distinction between the sacred and the secular, but instead embrace all-encompassing approaches requiring that religious rule extend over (what in Western constitutional democracies is apportioned among) the private, the public and the political spheres.27 To the extent that secularism may be inherently biased against non-Christian religions, constitutional secularism would seem vulnerable and at odds with the Enlightenment ideal of equal liberty for all regardless of their particular religion or their lack thereof. Thus, for example, if Christian religions predominantly valorize faith and worship, whereas for Islam and Judaism deeds such as male circumcision rank among the most sacred of religious obligations, then a secularism that accords priority to beliefs over deeds would inherently disadvantage the non-Christian religions involved – a situation bound to be aggravated if the latter religions happen to be minority ones within the relevant polity.28 Beyond that, to the extent that secularism is tied to a Christian conception of religion, this raises a serious question concerning the viability of constitutionalism in countries that are non-Christian. This last problem arises in Israel, where Judaism is the majority religion; and in Muslim countries with a secular

See Birnbaum supra note 18. See McCreary Cnty. v. ACLU 545 U.S. 844 (2005). (J. Scalia, dissenting.) 25 See Reynolds v. United States 98 U.S. 145 (1878). (Mormons’ religious duty to practice polygamy does not require a Free Exercise based exemption from state law making it a crime to be married to more than one woman.) 26 See Marci Hamilton, Religious Institutions, the No-Harm Doctrine, and the Public Good, BYU L. Rev. 1099 (2004). 27 See E. Gregory Wallace, Justifying Religious Freedom: The Western Tradition, 114 Penn St. L. Rev. 485 (2009); Benjamin Blech, Understanding Judaism: The Basics of Deed and Creed (1992). 28 Minority religions are doubly vulnerable, to the extent that they deviate from mainstream culture and that they are permanently subject to being disadvantaged (unless specifically constitutionally protected) through the democratic lawmaking process. 23 24

Constitution and secularism: a Western account  27 constitution, such as Turkey.29 The apparently inextricably Christian foundation of secularism raises two fundamental concerns for non-Christian societies: can there be a secularism fit for Judaism or Islam that is sufficiently purged of its Christian features? Or, if the answer to this last question is in the negative, can a polity comply with the basic precepts of modern constitutionalism by preserving a sufficient degree of religious tolerance while at the same time doing away with secularism? The first of these questions is equally as pertinent in the context of Islam or Judaism as minority religions as in that of either religion figuring as the majority or the state religion. On the other hand, the second question seems most pressing in cases where religions such as Islam and Judaism figure as the majority or state religion.

3.

INSTITUTIONAL SECULARISM AS A CENTERPIECE OF MODERN WESTERN CONSTITUTIONALISM

Notwithstanding the Christian imprint that it seemingly cannot transcend, secularism as reshaped by the Enlightenment has become an institutional pillar of modern Western constitutionalism.30 The ideal of institutional secularism, which is to be distinguished from ideological secularism31 further discussed in Section 4 below, is conceived as being neutral in relation to all religions. Institutional secularism is supposed to carve out a public sphere with no room for religion, which is to remain distinct from the private sphere, wherein all religions are equally supposed to be granted full protection and equally allowed to thrive. This division between these two realms is exemplified both by the aforementioned contrast envisioned by Rousseau between the citizen who at once governs and serves the republic and the private person (bourgeois) who is free to follow the religion of his or her choice within the ambit of his or her family and social community; and by the “wall of separation” prescribed by the U.S. Constitution,32 which many have understood as requiring a religion free governmental sphere combined with full protection of religion within the private sphere. Moreover, to the structural ideal of neutrality embedded in institutional secularism must be added a dynamic that presumably secures the passage from secularism as the means toward securing a truce in the context of Christian wars of religion to secularism as an institutional mainstay of Enlightenment-based constitutional democracies. Achievement of the Enlightenment prescribed conditions calls for religion to be expelled from the public sphere and made to withdraw from the realm of politics, in exchange for acquiring a special status and special protection within the private sphere. In other words, consistent with Enlightenment values, religion must become “depoliticized” in exchange for acquiring special privileges in a private sphere meant to be shielded from politics. Thus, for

29 As of this writing, Turkey remains constitutionally secular, but the Erdogan government is increasingly using its expanded powers to impose Islam on the country’s citizenry. See Soner Cagaptay, In Long-Secular Turkey, Sharia is Gradually Taking Over, Wash. Post (February 16, 2018). 30 Although intellectually tied to Christianity, politically, secularism has often been embraced by non-Christians. Thus, for example, French Jews were among the leading promoters of laïcité in the nineteenth century. See Birnbaum, supra note 18. 31 For a more extensive discussion of the contrast between institutional and ideological secularism, see Michel Rosenfeld, Recasting Secularism as One Conception of the Good Among Many in a Post-Secular Constitutional Polity, in Mancini and Rosenfeld (eds.), supra note 3, at 79‒109. 32 See Leonard W. Levy, The Establishment Clause: Religion and the First Amendment 188 (1986).

28  Constitutions and religion example, official spokespeople for a pacifist religion would be barred from participating in the name of that religion in the political debate,33 culminating in the polity entering into a war. But at the same time, practitioners of that religion would be entitled to an exemption from military service which would allow them to honor their religiously prescribed pacifism.34 To put it in the language of John Rawls, political discourse should be subjected to the criteria of “public reason.”35 Conversely, propositions of faith, revelation or other transcendent origin, which remain inaccessible to public reason, should be excluded from the realm of governance and of political argumentation, but afforded special status through constitutional protection of religious faith, practice and worship within the confines of the private sphere. Assuming acceptance of the neutrality of the ideal of institutional secularism, the key question posed at the level of constitutional architecture and functioning relates to the proper calibration of the public depoliticization of religion with the corresponding private privileging of it. This question proves vexing, however, because although the ideal of institutional secularism may well remain theoretically clear and coherent, the same seems virtually impossible at the institutional and practical levels. Indeed, the separation between the public and private spheres is often elusive, and even more so in the context of the modern welfare state, where subsistence, education and healthcare are largely handled and/or regulated by the state. Thus, for instance, if education were exclusively relegated to the private sphere, each religious group within the polity could set up its own schools and ward off any plausible government interference through vindication of its freedom of religion rights under the country’s constitution. But what if public education were mandatory or private education subject to government regulation imposing the teaching of certain subjects, such as science or civics, that may conflict with certain widely held religious precepts? One possible way to overcome the above difficulties would be to embrace a thicker, more substantive conception of secularism. Under that conception, secularism through use of public reason would educate, sustain and – to the extent necessary – constrain each person in his or her capacity as a citizen, while at the same time affording complete freedom of religion to every person in his or her capacity as a private individual engaged in social and non-state communal interaction. This approach has the advantage of circumventing the difficulties posed by the elusiveness of the public/private divide. Indeed, to become a responsible citizen requires, among other things, some basic education in civics, which can be as easily made part of the curriculum of state-run schools as it can be imposed by law on private religious schools.36 Expanding the depth and scope of secularism may solve some problems, but only at the expense of raising others. For example, it would seem much more difficult to limit secularism to an institutional role that may be plausibly perceived as neutral if one conceives of the citizen and of democratic governance in civic republican terms, as opposed to liberal ones. In the 33 More precisely, religious adherents to pacifism would be barred from introducing religious reasons in the political debate about war and peace, but would be entitled – like everyone else – to make secular arguments (which may well happen to be consistent with their religious beliefs) during the said debate. 34 Welsh v. United States, 398 U.S. 333 (1970); Gillette v. United States, 401 U.S. 437 (1973). 35 John Rawls, Political Liberalism 9 (1996). 36 In order to complete the requirements for a high-school diploma in New York, a student must receive instruction and pass final examinations in U.S. history and government, or in global history and geography (1750 to present), as well as receive instruction and pass one final exam in a different course in social studies or a department-approved alternative. 8 NYCRR § 100.5(a)(4)(i)(c), (e).

Constitution and secularism: a Western account  29 broadest terms, civic republicanism requires the citizen to engage in civic virtue in pursuit of the common good of the polity. In contrast, liberalism calls only for mainly procedural tasks to be performed by citizens directly or through their representatives – namely the maintenance of basic political constitutionally enshrined institutions and the guaranteeing of majoritarian rule to allow for an orderly competition among a plurality of constitutionally permissible interests. A secular conception of virtue and of the common good appears to require enshrining a conception of the good that may be, in whole or part, contrary to the particular conceptions of the good respectively espoused by the various religions practiced through the polity. Accordingly, secular civic republicanism is likely to be perceived as institutionalized non- or anti-religion, and as definitely non-neutral – in sharp distinction to secular liberalism, with its mainly procedural institutional apparatus and its lack of explicit embrace of the competing religious and non-religious conceptions of the good variously espoused within the polity. As the preceding brief observations suggest, the Enlightenment ideal of a neutral institutional secularism as the constitutional standard to manage the relationship between the state and religion is both theoretically contestable and fraught with numerous difficulties in relation to practical implementation. Consistent with this, the best that can be expected in evaluating actual modern Western constitutional approaches to the relationship between the state and religion is rough and relative approximation to the ideal of institutional secularism. From the complexities noted above – combined with the fact that each country has a different history, tradition, culture, constitution and quite often a different mix of religions and non-religious ideologies – one thing becomes clear: there is no single solution to the constitutional challenge facing Western democracies. With this mind, we now proceed to an examination of the principal different constitutional models for handling the relationship between the state and religion within the ambit of western democracies.

4.

PRINCIPAL CONSTITUTIONAL MODELS FOR HANDLING THE RELATIONSHIP BETWEEN THE STATE AND RELIGION

Under current constitutional practice in Western democracies, there are essentially five different models for managing the relationship between the state and religion: (1) the militant secularist model, bent on keeping religion completely out of the public sphere; (2) the agnostic secularist model, which seeks to maintain a neutral stance among religions, but does not shy away from favoring religion over atheism and other non-religious perspectives; (3) the confessional secular model, which incorporates elements of the polity’s mainstream majority religion, primarily for identitarian purposes, and projects them as part of the polity’s constitutional secularism rather than as inextricably linked to the country’s main religion; (4) the official state religion with institutionalized tolerance for minority religions model; and (5) the millet-based model, in which high priority is given to collective self-government by each religious community within the polity. There are also significant variants in relation to each of these models, the most salient of which will be briefly mentioned in the summary discussion of each of the five models below.

30  Constitutions and religion 4.1

The Militant Secularist Model

This model, which sets as its ideal the complete separation between the state and religion, is the one that most approximates the Enlightenment’s radical distinction between the realm of faith and that of reason, and its call for reason to rule the public sphere while allowing faith freely to spread within the private sphere. Militant secularism is most famously enshrined in the French conception of laïcité, currently embodied in Article 1 of France’s 1958 Constitution.37 Laïcité was institutionalized in France by a law enacted in 1905 to eliminate government subsidy of religion which was established by Napoleon I to make up for state confiscation of church property during the French Revolution.38 The 1905 law has been said to be built around three principles: “freedom of conscience, separation of state and churches, and the equal respect of all of all faiths and beliefs.”39 What laïcité encompasses has evolved from its 1905 legalization to its 1958 constitutionalization; but one of its most striking features is the near-complete expulsion of religion from the realm of the state and from most of the public sphere. This has been most vividly exemplified in recent times by the complete ban regarding public school students wearing of the Islamic veil or other “ostentatious” religious signs.40 Moreover, as to the state itself, in the words of a leading French legal scholar, it “presents itself to all, stripped of all metaphysical symbols, distant from any trace of the spiritual.”41 Turkey, like France, has also adopted this militant secularist model; but there are important differences between these two countries. Whereas French laïcité was adopted in a social and political setting that was already significantly secularized,42 its Turkish counterpart was imposed in the 1920s by Kemal Ataturk to trigger a shift toward modernism and secularism in a polity that was overwhelmingly rooted in the Islamic religion.43 As a consequence, as evinced by two countries’ bans on Islamic headscarves, French laïcité is mainly directed against minority religions; whereas Turkish laïcité is squarely turned against the country’s dominant majority religion.44 Moreover, an overwhelming majority of French society is currently largely secularized and thus well adapted to the dictates of laïcité. Turkish society, in contrast, is still in large part committed to Islam, which explains the large popular support behind Erdogan’s recent impositions of Islamic norms through his expanded powers despite the persistence thus far of secularism as a constitutional pillar.45 France’s constitutional laïcité may well come closest to the ideal of institutional secularism, but even this iteration of militant secularism suffers from serious shortcomings. First, although the French state is supposed to be religiously neutral, it can be attacked as being ultimately

37 The opening sentence of the first article of France’s 1958 Constitution states: “France shall be an indivisible, secular, democratic and social Republic.” 38 See Law of 9 December 1905 on the separation of church and state, Legifrance; Napoleon’s concordat: Introduction and summary, Concordat Watch. 39 Patrick Weil, Headscarf Versus Burqa: Two French Bans with Different Meanings, in Mancini and Rosenfeld (eds.), supra note 3, at 199. 40 Id. 201. 41 Id. 200. Jean Rivero as cited and translated by Weil. 42 Michel Troper, Sovereignty and Laïcité, in Mancini and Rosenfeld (eds.), supra note 3, at 146‒59. 43 See Murat Borovali, Islamic Headscarves and Slippery Slopes, 30 Cardozo L. Rev. 2593 (2009). 44 See Susanna Mancini, The Power of Symbols and Symbols as Power: Secularism and Religion as Guarantors of Cultural Convergence, 30 Cardozo L. Rev. 2629 (2009). 45 See Cagaptay, supra note 29.

Constitution and secularism: a Western account  31 hostile to religion inasmuch as its institutional apparatus seems much more attuned to the ideological inclinations of those who are areligious or only nominally associated with religion. Second, for all its areligious or anti-religious connotations, French laïcité is historically rooted in a particular accommodation between the French Catholic Church and the state.46 To be sure, the deployment of laïcité in France required some restraints on religion, thus somewhat relativizing Catholicism within the polity. But at the same time, laïcité was molded so as to render the public space as compatible as possible with the culture associated with Catholicism, if not with the religion itself. This phenomenon is succinctly captured in the French popular term Catho-laique, which connotes both a Catholicism adapted to laïcité and a laïcité fitted for harmonious coexistence with Catholicism. 4.2

The Agnostic Secularist Model

The agnostic secularist model differs markedly from its militant counterpart by refusing to categorically exclude religion from state affairs and most of the public sphere, and instead maintaining an agnostic position as between all religions. The agnostic secularist model is thus neutral among religions by ideally inviting all of them in while barring the state from favoring any one religion as against any other. Moreover, there are two principal variants of this model: one that is, in principle, equally inclusive of all religions, but not of areligious or of irreligious ideologies; and the other that is meant to be equally inclusive of all ideologies, whether religious or not. The United States embodies the agnostic secularist model and, as its constitutional jurisprudence demonstrates, it variously gives expression to both of its variants. Although the ideal of non-discrimination among religions has remained a constant in U.S. constitutional jurisprudence, its meaning and scope have fluctuated due to the changing and contested dynamic between inclusion and exclusion framed by the two religion clauses of the U.S. Constitution. Thus, Jefferson’s famous proclamation of the need for “a wall of separation” between church and state has been variously interpreted as requiring a complete separation between state and religion,47 and as merely banning official state preference of one religion over others.48 Underlying this divergence were several factors that led to fluctuation of the scope of non-discrimination and to shifting attitudes concerning the ratio of benefits to detriments linked to greater or lesser state involvement or promotion of religion. In the earlier days of the American republic, the country regarded itself by and large as a Protestant one, and constitutional non-discrimination was understood by many as applicable to the various Protestant denominations within the polity, but not necessarily to other (minority) religions.49 Although since then, Catholicism and Judaism have been included within the effective non-discrimination purview, as already noted, there still is a current debate among U.S. Supreme Court justices concerning constitutional protection under the religion clauses of certain other religions or non-religious ideologies. Consistent with this, moreover, those who have advocated strict separation between the state and religion fall generally into three categories: agnostics or atheists whose freedom from religion may be trampled by a state-endorsed

See Michel Troper, Sovereignty and Laïcité, 30 Cardozo L. Rev. 2568‒69 (2009). See Levy, supra note 32, at 188. 48 See Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction 213–15 (1982). 49 See Sydney E. Ahlstrom, A Religious History of the American People 330 ff. (1972). 46 47

32  Constitutions and religion religion;50 minority religions which feel de facto discriminated against by falling outside the scope of non-discrimination or excluded from state endorsement or promotion of what the latter presents as a common denominator among all religions, but is in fact contrary to the precepts of the minority religions involved;51 and religions – whether belonging to the majority cluster that fully benefits from constitutional non-discrimination or within the minority – which are convinced that any state involvement, no matter how benign, is bound to result in state meddling, which would inevitably lead to unacceptable compromising of sacred religious principles or practices.52 U.S. constitutional secularism is by no means anti-religious or even areligious, as it boils down to state acceptance or even endorsement of what is perceived as shared in common by all protected religions, combined with an ongoing contestation of the proper bounds of the dynamic between inclusion and exclusion. Thus, the inscription “In God We Trust” on official U.S. currency,53 the recitation of the pledge of allegiance to “one nation under God” by public school children54 and official prayers characterized as generic at the opening of parliamentary sessions55 are all arguably justifiable as falling within the common religious denominator shared by a vast majority of Americans.56 At the same time, however, such state endorsements of religion remain contested, as objectors charge that what purports to be inclusionary – such as what a majority regard as a generic prayer, but what is in fact a Christian or a Judeo-Christian prayer – is in fact exclusionary, as it effectively casts non-believers and members of other religions as outsiders.57 As the above cursory references to American jurisprudence indicate, the agnostic secularist model may seem more inclusive than its militant counterpart, but it does have at least two major shortcomings. The first is that it is at times construed as disfavoring agnostics, atheists and proponents of non-religious ideologies. The second shortcoming stems for its part from actual discrimination among religions under the guise of neutrality. As already noted, American jurisprudence on religious freedom may ultimately depend on a Protestant model of

50 See, for example, the opinion of the Court and Justice O’Connor’s concurring opinion in McCreary Cnty. 545 U.S. 844. 51 See, for example, Lynch v. Donnelly 465 U.S. 668 (1984) (court majority depicts state display of the crèche as non-exclusionary notwithstanding that it symbolizes Jesus’ divine nature which is rejected by Judaism and Islam). 52 See, for example, Testimony of J. Brent Walker, General Counsel and Assoc. Dir., Baptist Joint Committee on Public Affairs Before the Senate Committee on the Judiciary, Federal Document Clearing House (25 Oct. 1995). 53 See Lynch v. Donnelly 465 U.S. 668. 54 See Newdow v. US Congress, 292 F.3d. 597,609 (2009) (“[T]he words ‘under God’ [added to the Pledge of Allegiance in 1954] were intended to recognize a ‘Supreme Being,’ at a time when the Government was inveighing against atheistic Communism.”) 55 See Marsh v. Chambers 463 U.S. 783 (1983) (Nebraska legislature prayer by state-paid chaplain held constitutional). 56 As the U.S. Supreme Court jurisprudence on the religion clauses has been evolving, and as justices of the court have generally been divided on many relevant issues, the actual justifications offered for constitutional acceptance of these state endorsements of religion have varied from those based on religious common denominators to others based on the argument that these propositions or practices are so widely accepted within the country as to have become part of its culture beyond any religious connotation. See the various opinions in the cases cited in the preceding three footnotes. 57 See supra note 34.

Constitution and secularism: a Western account  33 religion. Accordingly, what appears to be formally religiously neutral may turn out in practice to embody a Protestant bias. 4.3

The Confessional Secular Model

The confessional secular model differs from its agnostic counterpart in that it incorporates elements of the polity’s majority religion by casting them primarily as cultural and identitarian symbols inherent in the fabric of its citizenry national identity. Thus, for example, in Germany and Italy – two prime exponents of the present model – display of the crucifix in state school classrooms has sought to be justified in terms of the countries’ Christian tradition and as a symbol of the values of universalism and tolerance that Christianity and secular constitutionalism happen to share, thus downplaying the crucifix’s profound religious meaning for Christian believers.58 Moreover, there are significant variants within the confessional secular model, depending, among other things, on whether the polity at stake has one dominant religion, as is the case in Italy; or whether it has more than one traditionally implanted religion, as is the case in Germany, where Catholicism is predominant in some regions and Protestantism in others. Finally, there are also important differences regarding how far the majority religion and its practices and traditions are incorporated into the institutions of the secular state. From a theoretical standpoint, the confessional secular model encompasses the entire spectrum between the agnostic secularist model and the fourth model below, which comprises an official state religion. The German version of the confessional secularist model provides a sparkling example of the combination of history, culture and constitutional vision. The German Basic Law incorporates the religion-related provisions incorporated in the 1919 Weimar Constitution, which itself traces back to the seventeenth century end of the wars of religion.59After these wars, each German state adopted the religion of its ruler;60 and under the current Basic Law, the state incorporates religious education in its public schools, with Protestant Lander providing Protestant religious instruction and Catholic ones imparting Catechism.61 In addition, the state collects taxes from the citizenry for redistribution to churches, this being tantamount to state collection of dues from members of a church for purposes of disbursement to the church in question.62 In short, whereas these above features may insinuate that the Protestant and Catholic religion amount to the state religion in their respective Lander, the Basic Law makes it clear that there is no state religion in Germany.63 German institutionalization of religion may not itself necessarily trample on the freedom of religion of adherents to minority religions, as parents are allowed to have their children opt out of state school religious instruction.64 The same is often not the case, however, when religion is invoked as a component of tradition and culture as opposed to in its own right. One such telling example is provided by the German Constitutional Court’s decision in the Headscarf Lautsi v. Italy, ECHR, (30814/06) (March 18, 2011). See Dorsen et. al., supra note 2, at 1293. 60 Id. 61 Dieter Grimm, Conflicts Between General Laws and Religious Norms, in Mancini and Rosenfeld (eds.), supra note 3, at 3‒13. 62 Id. 63 Id. 64 Id. 58 59

34  Constitutions and religion Ludin 2003 case,65 which upheld certain Landers’ prohibition against public school teachers wearing Islamic headscarves, while at the same time allowing teachers who happened to be nuns to wear their religiously prescribed habits. As the court understood it, this difference in no way manifested any expression of religious discrimination, but instead reflected the well-established historical and cultural tradition wherein nuns figure as an integral part of Germany’s heritage and identity.66 Perhaps the most striking example of portraying religion not only as historical tradition, but also as largely coextensive with secular values is provided by the Italian public classroom crucifix case, Lautsi.67 In the words of the Italian Administrative Court, which held that display of the crucifix in public school classrooms is compatible with Italy’s constitutional secularism: It is easy to identify in the constant central core of Christian faith, despite the Inquisition […] antiSemitism […] and the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular state.68

Confessional secularism gives rise to two major problems. First, it can easily be found wanting by most, if not all, religions within the polity and by all those who are genuinely committed toward secularism. Indeed, “confessionalized” secularism is likely to offend both the very religious, who would consider their deeply held religious convictions trivialized;69 and the committed secularists, who would feel their position being undermined through saturation of the public space with religious symbols and practices relabeled as secular.70 Second, confessional secularism seems bound to disfavor minority religions, as the German headscarf jurisprudence mentioned above illustrates, thus significantly thwarting the equal treatment of all religions within the polity. 4.4

The Official State Religion with Institutionalized Tolerance for Minority Religions Model

This model is characterized by the constitutional adoption of a particular religion as the official state one and thus differs from the confessional secular model in that it incorporates the state religion qua religion, as opposed to as an element of culture or tradition. Western countries with an official state religion include the United Kingdom, Scandinavian countries and Greece; each of these reflects important variants regarding both the relationship between the state and religion and the degree of inclusiveness accorded minority religions. In general terms, the more the official religion is compatible with the essential tenets of liberalism, the better it is likely to fit within the strictures of constitutional secularism. Thus, for example, liberal interpretations of Christianity, which promote equality between the sexes as well as

BVerfGE 108, 282 (2003). This trend of excluding the veil but accepting Christian religious habits was officially embraced by an increasing number of German Lander for over a decade. In 2015, however, the German Constitutional Court held that a “general prohibition” against teachers wearing headscarves in public schools was unconstitutional. Headscarf Ban Case, 1BvR 471/10 (2015). 67 Lautsi v. Italy, ECHR (30814/06) (March 18, 2011). 68 Cited in Lautsi v. Italy ECHR (30814/06) (ECtHR Grand Chamber decision). 69 Testimony of J. Brent Walker, supra note 52. 70 See Mancini, supra note 44, at 2634–35. 65 66

Constitution and secularism: a Western account  35 non-discrimination based on sexual orientation, seem better adapted to constitutional secularism than Christian fundamentalist interpretations that are widely regarded as discriminatory against women and the lesbian, gay, bisexual and transgender community. Moreover, it may be quite important from the standpoint of constitutional secularism whether a country’s official religion is promoted mainly in a ceremonial capacity as opposed to through the institutionalization of its substantive precepts and values. This contrast between a ceremonial and a substantive implantation of the official religion is well illustrated through a comparison between the role of the Church of England in the United Kingdom and that of the Greek Christian Orthodox Church in Greece. The United Kingdom is, by and large, a much less religious polity than the United States; and the Church of England seems to have little more than a ceremonial presence in the public sphere. Accordingly, the role of the official religion in the United Kingdom may impinge less on secularism than several other versions of the confessional secularist model and even than some iterations of the U.S. approach under its agnostic secular model.71 The role and influence of the Christian Orthodox Church on the Greek polity, on the other hand, is in large measure substantive and often quite intrusive on those who stray from the constitutionally enshrined official national religion. Article 3 of the Greek Constitution establishes the above Orthodox religion as the “dominant” one and prohibits any translation of the Holy Scriptures “without the prior consent of the Greek Church […].”72 Moreover, while the Greek Constitution protects freedom of conscience and the right to practice any “known” religion, it prohibits proselytism.73 As proselytism is an essential obligation for much of Christianity, its prohibition under Greek law was held in violation of the right to freedom of religion under Article 9 of the European Convention on Human Rights.74 Besides its greater potential for disadvantaging minority religions, the official state religion model may present drawbacks for both the state and the official religion. From the standpoint of the state and that of democratic majorities, the official religion may succeed in perpetuating burdensome impediments. Thus, for instance, Catholicism prohibits divorce; and were it the official state religion, it could thwart the granting of a right that may be deemed fundamental within the ambit of contemporary liberal constitutionalism. From the standpoint of the official religion, on the other hand, state intervention may result in dilution of religious freedom and in contravention or dilution of religious dogma. A good example of this phenomenon is provided by the Egyptian Supreme Court interpretations of Sharia law in ways contrary to those of that country’s religious Islamic authorities.75 In the last analysis, in the best of cases, adoption of an official religion allows for greater consolidation of the country’s majority’s way of life with enough room for religious freedom for all, while allowing the state to curb those excesses of the official religion that pose a threat to liberal constitutionalism. In the worse of cases, though, the official religion will unduly impinge on religious tolerance for all others; while the state will systematically frustrate, through its processes of institutionalization, the official religion’s authorities and true believers.

71 See Kent Greenawalt, Secularism, Religion, and Liberal Democracy in the United States, 30 Cardozo L. Rev. 2386–87 (2009). 72 Constitution of Greece, Art. 3, §§ 1, 3. 73 Id., Art. 13, §§ 1, 2. 74 See Kokkinakis v. Greece, 17 EHRR 397 (1993) (European Court of Human Rights). 75 March, supra note 3, at 298‒306.

36  Constitutions and religion 4.5 The Millet-Based Model The millet system, which originated in the Ottoman Empire, is premised on collective self-government by each religious community within the polity. More specifically under this system, in matters of personal law, such as marriage and divorce, each individual is subjected to the laws, courts and authorities of her religious community. The millet-based model is currently in force in Israel, a Western constitutional democracy with a Jewish majority and sizeable Christian and Muslim minorities.76 The millet-based model seems particularly attractive because of its special capacity for accommodating minority religions. As we have seen, under other models the rights of minority religions and of their adherents are often unduly constrained through projection of majority religion ideology or biases. Thus, where the Christian distinction between faith and deeds is pervasive, it may lead to restrictions on the religious practices of minority religions that do not draw such a distinction. In contrast, the millet-based model allows for equal full self-determination within the realm of personal law of each religious community, regardless of its majority or minority status. The millet-based model, however, also presents several drawbacks from the standpoint of Western constitutional secularism, as attested by its seven-decade implementation in Israel. These drawbacks fall essentially into three distinct categories. The first of these concerns inter-religious matters or relationships; the second intra-religious matters; and the third conflicts between religious self-rule and fundamental precepts of constitutional secularism. A dramatic example falling within the first of these categories is provided by the law of marriage in Israel which, by being delegated to each religious community, does not provide for intermarriage. Thus, if an Israeli Jew wants to marry an Israeli Christian and neither the Jewish rabbinate nor the Christian clergy perform interfaith marriages, then the couple in question cannot marry in Israel, as the country does not offer a civil marriage alternative.77 Turning to the second category relating to intra-religious matters, unless a religious community is unified or hierarchically bound together, the millet system seems bound to exacerbate intra-religious splits and divisions. This is well illustrated by the systematic exclusion of Conservative and Reform Judaism from the rabbinate and all relevant Jewish religious authorities with religious legal authority over Israel’s Jews.78 Moreover, there are even splits among the officially established and empowered Orthodox Jewish community, with at times contentious disagreements on important legal issues between the Ultra-Orthodox and the Modern Orthodox.79 Finally, the third category of difficulties arises whenever the dictates of applicable religious law clearly contravene the basic precepts of constitutional secularism. One example of this is provided by the controversy over Jewish divorce law in Israel. Under current rabbinic law that applies to all Jewish divorces in the country, a couple cannot be granted a divorce unless the husband gives 76 Israel does not have a formal constitution, but adheres to constitutional rule and respect for fundamental rights secured through Basic Laws. See United Mizrahi Bank Ltd. v. Migdal Village, CA 6281/93 (1995) (Israel Supreme Court). 77 Gidon Sapir and Daniel Statman, Religious Marriage in a Liberal State, in Mancini and Rosenfeld (eds.), supra note 3, at 269‒82. To compensate for this drawback, Israel readily recognizes marriages obtained abroad. This allows Israeli interfaith couples to marry in Cyprus and to have their marriages recognized in Israel upon their return home. Whereas this practical option may minimize the harm to the individuals involved, it does not redress the affront against a basic precept of constitutional secularism. 78 Id. 79 Id.

Constitution and secularism: a Western account  37 his voluntary consent to it, thus not only creating a glaring inequality between the sexes, but often leaving women who are estranged and separated from their husband in a state of limbo, with no legal recourse regarding divorce or remarriage.80 The above difficulties besetting the millet-based model may be mitigated by instituting two kinds of changes. First, one could conceive – and there is much discussion about this in Israel81 – of a millet system in which a secular civil libertarian alternative is available for those who wish to opt out from the religious community to which they belong. Such a change in Israel would allow for interfaith marriage and for civil divorce, as well as more generally for those committed to secularism and not in accord with any religious communities to live and benefit from fundamental constitutional protections consistent with their ideology and way of life. Second, to lessen intra-religious strife and reduce unfairness among religions and among religious denominations, the millet-based model could be opened up so as to become more inclusive. If Israeli Jews could choose from among Orthodox, Conservative and Reform, as well as purely secular alternatives, it would seem that much of the frustrations and felt unfairness regarding the current system could be very significantly alleviated. Accommodating more religious identities and communities would improve the millet-based model without ever making it fully satisfactory, as it seems impractical to give all religious viewpoints – no matter how isolated and no matter how small in terms of adherents – the ability to promulgate and enforce their own law and at the same time to have such law being part of the law of the land.

5.

CHALLENGES AND ALTERNATIVES TO INSTITUTIONAL SECULARISM IN AN AGE OF RELIGIOUS REVIVAL

The ideal of institutional secularism has been under attack and seems to many less convincing than it may have been initially for a number of reasons, for the most part mentioned throughout the preceding analysis. The three most important such reasons are erosion of the public/ private divide; perceptions variously emerging through the five models discussed above that institutional secularism is anti-religious, or favors religion in the guise of culture or else promotes a majority religion at the expense of minority faiths; and, concomitant with the revival of strong or fundamentalist religion, reduction of institutional secularism to one contestable religion among many – namely, that of “secular humanism.”82 Throughout the discussion above, there emerged suggestions on how to tinker with and adjust the workings of institutional secularism to render them more fair and inclusive. Arguably, however, it might be best at this time to look to an alternative to institutional secularism for purposes of better securing Western constitutional secularism. One such alternative, bent on maximizing pluralism and inclusiveness, would remove secularism from its institutional pedestal and readmit it within the polity as one contestable conception of the good among many others. In other words, the proposal would be to replace

Id. Id. 82 See Smith v. Bd. Of Sc. Commoners, 827 F.2d 684 (U.S. Fed Ct. Appl. 11th Circ. 1987) (rejection of claim by Christian Fundamentalist parents that public school teacher characterization of a tsunami as the product of the force of nature amounted to impermissible endorsement of the religion of “secular humanism”). 80 81

38  Constitutions and religion institutional secularism with ideological secularism. Moreover, in the course of this substitution, secularism would cease to be superior within the constitutional hierarchy in order to share an equal position with all other religious and non-religious ideologies variously embraced by the relevant constitutional democracy’s citizenry.83 In order to better assess this proposal, it is necessary to address three principal questions. First, what is encompassed by ideological secularism? Second, what advantages and disadvantages does it have in comparison to institutional secularism? And third, how might it fare from the standpoint of Western constitutional secularism? Ideological secularism is a conception of the good that is grounded in an immanent world that rejects all transcendence from an epistemological, ontological, moral and political point of view.84 Ideological secularism is certainly congruent with atheism and agnosticism; but it is also compatible with certain forms of religion, provided they are exercised in a compartmentalized fashion. Thus, a person who is committed to the social and political spheres being ruled by human rights, science and public reason, but at the same time believes in and worships a transcendent being individually or within a likeminded religious community, would satisfy in all relevant respects the dictates of ideological secularism in all its constitutional dimensions. Furthermore, as one conception of the good among many competing ones within a constitutional polity, ideological secularism requires both freedom from religion and freedom of religion. The former is obvious; but the latter might not be, as under a well-functioning institutional secularism atheists and agnostics can presumably act unhindered provided that they are free from religion. Once institutional secularism is removed, however, nothing would prevent a religiously inclined religious majority from, for example, prohibiting the teaching of evolution in all science classes. But by resorting to a freedom of religion right – or, more precisely, a freedom of ideology right – the secularist can insist on being able to teach science as he or she pleases. To the extent that ideological secularism is on a par with other ideologies, its quest for freedom of inquiry and for the unhindered pursuit of science looms as significantly more precarious than under a constitutional regime under the sway of institutional secularism. Whereas this may be true in theory, it seems in most cases otherwise in practice. This is both because most Western constitutional democracies – such as the United States, the United Kingdom, France and Germany – have large contingents among their respective citizenry that come within the purview of ideological secularism; and because most of those who oppose freedom of scientific inquiry on religious grounds commit in doing so what philosophers characterize as a performative contradiction. Indeed, it is certainly logically consistent with certain widespread interpretations of Judaism and Christianity to seek prohibition of the teaching of evolution theory. But – inasmuch as those who reject evolution on religious grounds also make regular use of the products of free scientific inquiry and discovery in fields such as medicine, for religious reasons85 or otherwise – they are behaving in a way that clashes with their religious ideology.

83 See Rosenfeld, supra note 31, at 79‒108 (the discussion that follows summarizes some of the arguments advanced in this cited chapter). 84 See Charles Taylor, A Secular Age 18‒20 (2007). 85 Orthodox Judaism, for example, requires use of all available medical means to save or prolong life. See George Robinson, Essential Judaism: A Complete Guide to Beliefs, Customs and Rituals 200 (2001).

Constitution and secularism: a Western account  39 More generally, while room must be left for contextual differences, by and large ideological secularism can safeguard secular values and objectives much like institutional secularism can. What are, accordingly, ideological secularism’s advantages and disadvantages? Its principal advantages are twofold: it does away with any built-in prejudice or disadvantage against religion; and it minimizes the priority of the majority religion over its minority counterparts, as pluralism seeks to treat all competing conceptions of the good within a polity as prima facie equally deserving of recognition and inclusion, so long as they are not destructive of the aims of pluralism. On the other hand, the principal disadvantage of ideological secularism is largely contextual in nature. Because of its lack of hierarchical priority, unlike institutional secularism, its ideological counterpart cannot guarantee the liberal rights and objectives associated with Western constitutional secularism. Thus, for example, if ideological secularists are a minuscule minority in a polity where the overwhelming majority adheres to a fundamentalist religion that consistently rejects science, including medical science, in both theory and practice, then society at large will operate as what is tantamount to a theocracy, with a very small isolated self-enclosed secularist community largely cut off from the bulk of its fellow citizens. As the last example looms as aberrant and Western democracies are typically permeated with a steady and sizeable infusion of ideological secularism, the pluralist constitutional approach bereft of institutional secularism seems well suited to sustain the essential project of Western constitutional secularism. Whereas on the theoretical level the justification for the essential attributes of Western constitutional secularism would derive from normatively grounded pluralism, rather than from traditional liberal theory, from a practical standpoint the mainstays of such secularism – namely, freedom of and from religion – would function in a roughly equivalent manner. Moreover, the main benefits for replacing institutional secularism with ideological secularism within the ambit of a pluralist ethos would be greater flexibility, more sensitivity to context and greater emphasis on maximizing inclusiveness. Arguably, therefore, the proposed shift would lessen perceptions of constitutional secularism as anti-religious; do away with disguising religious preferences by casting them as manifestations of cultural tradition; and discourage approaching minority religion constitutional claims from the often inconsistent and ill-adaptable perspective of the majority religion.

6. CONCLUSION Western constitutional secularism is the product of an Enlightenment adaptation and transformation of a conception of secularism deeply steeped in the history and traditions of Christianity. The constitutional embrace of secularism led to positing institutional secularism as an ideal providing for a cogent separation of the realm of public self-government from that of private interaction and pursuit of self-realization. Consistent with this ideal, religion would be excluded from the public realm, but privileged in the private one. Actual constitutional regimes set in place in Western democracies aspired to this ideal in varied ways, and in doing so deviated from it and sometimes partially undermined it in a number of distinct ways. This was done through implementation of one or another of the above-described five principal models for constitutionally structuring the relationship between the state and religion. The relevant Enlightenment vision and premises gradually lost their hold as the public/private divide blurred and as religion became repoliticized. This, in turn, led to increasing criticisms of institutional secularism and has even led to certain attacks on the very foundations of Western

40  Constitutions and religion constitutional secularism.86 Western constitutional secularism has thus far, for the most part, endured through use of the five models detailed above – each of which being subject to particular pitfalls, while also open to ways of improvement. Finally, the suggested shift from institutional to ideological secularism briefly addressed above can perhaps be best viewed as offering a useful heuristic device. Indeed, on the one hand, ideological secularism can be cast as a tool for critical analysis fit for better and more systematically capturing the shortcomings of contemporary constitutional arrangements. At the same time, on the other hand, ideological secularism could prove useful for purposes of exploring plausible paths toward the perfectibility of existing iterations of Western constitutional secularism.

86 Secularism has been variously attacked as immoral, amoral, untrustworthy, and, in the words of Pope Benedict XVI, as the “dictatorship of relativism.” See Rosenfeld, supra note 31, at 84‒85.

3. Secularism’s others: the legal regulation of religion and hierarchy of citizenship Ratna Kapur

1. INTRODUCTION Secularism is a complex and contradictory concept that means different things in different constitutional jurisdictions. In constitutional discourse, secularism has been interpreted to accommodate a pluralist and tolerant approach towards different religions, as well as adhering to a stricter formal model of separation between the state and religion that implicitly endorses a majoritarian approach. In this chapter, I set out some of the contradictions and complexities present in the notion of secularism by comparing the work that it has done in two different legal contexts: postcolonial India and the French Republic. I expose the political and normative contradictions that lie at the core of this perceived progressive ‘Western import’ and are exposed through its encounters with the postcolonial ‘other’ in the peripheries, and within the centre. The analysis engages with two important questions: First, what does this concept mean in terms of constitutional discourse more generally and how does it actually operate in the West, as well as in the non-West? Second, what are the implications of the model of secularism adopted in postcolonial India and the French Republic on the understanding of citizenship? The chapter sets out two contrasting models of secularism: one based on equal treatment of religion and another based on complete separation between religion and the state. I demonstrate how these apparently competing models are both based on a religious majoritarianism and use the constitutional discourse of secularism as a method to target religious minorities. Using a comparative analysis of the workings of secularism in India and France, I illustrate how it emerges as a mechanism for directing religious minorities – in particular, Muslims – to assimilate to the claims of the majority faith, and simultaneously cast those who refuse to do so as belligerent and a threat. Focusing my discussion on the constitutional challenges to Muslim women’s rights regarding divorce in India, as well as the veil bans in France, I highlight how the fact that these religious minorities are citizens of India and France, respectively, does not automatically entitle them to recognition as fully belonging. Faith becomes a basis for rendering the ‘other’ as being in a state of constant precariousness despite their citizenship credentials – as I further illustrate in relation to the situation of a migrant who is also a Muslim. The analysis demonstrates how secularism ends up being constitutive of religion, of both the minority and majority faiths, and in the process establishes a hierarchy of citizenship – of who belongs and who does not. This chapter takes as its starting point two basic assumptions about secularism. The first is that secularism is a Western concept based on the separation of religion and state. The second is that the non-Western polities, with their religious conflicts and public expressions of faith, are examples of incomplete secularization, where the modernizing project remains a work in progress. I challenge both assumptions as false: liberal democratic states have been involved in the regulation and management of religion in law and outside of law; and the courts and 41

42  Constitutions and religion state have been deeply embroiled in reorganizing the substantive features of religious life, stipulating what religion is or ought to be, its proper content and quotidian practices. Secularism in short, in both the West and the non-West, is used to advance religiosity and reinforce majoritarianism.

2.

SECULARISM IN INDIAN CONSTITUTIONAL LAW

Secularism in India is not based on a separation of religion and state, which is built on the equal treatment of all religion, the right to worship and state neutrality. In India, state neutrality is replaced with tolerance.1 Increasingly, orthodox or conservative forces – in particular, the Hindu Right, which is a nationalist party that seeks to establish India as a Hindu state – is defining the meaning and parameters of each of these components of secularism.2 The movement had its origins in revivalist and nationalist movements of the nineteenth century, which sought to revitalize Hindu culture as a strategy for resisting colonialism. Central to the ideology of the Hindu Right is the installation of religion and culture as primary attributes of nationalism and citizenship identity.3 In early discussions about citizenship in the Constituent Assembly debates, the forces of the right argued for a Hindu-based state identity and raised the threat of being overwhelmed by the Muslim presence, expressed as an ‘air-born baby boom’.4

1 Brenda Cossman and Ratna Kapur, Secularism’s Last Sigh?: The Hindu Right, the Courts, and India’s Struggle for Democracy, 38 Harvard International Law Journal 113–70 (1997); Donald Eugene Smith, India as a Secular State 132 (2015) (originally published in 1963); Neera Chandhoke, Beyond Secularism: The Rights of Relgious Minorities (1999); Cassie Adcock, The Limits of Tolerance: Indian Secularism and the Politics of Religious Freedom (2013). 2 The Hindu Right has its basis in the revivalist and nationalist movements of the nineteenth century, and began to take on its distinctive right-wing, anti-minority stance in the 1920s, with the publication of Vir D. Sarvarkar’s Who is a Hindu? Its organizational structure includes the Rashtriya Swayam Sevak (National Volunteer Organization), the main ideological wing of the Hindu Right which promotes a form of religious and national chauvinism. Under the influence of its second chief, Madhav Sadashiv Golwalkar, who headed the organization from 1942–73, it propagated the idea of India being a Hindu nation (Madhav Sadashiv Golwalkar, Bunch of Thoughts (1966); Tapan Basu, Pradip Datta, Sumit Sarkar, Tanika Sarkar and Sambuddha Sen, Khaki Shorts and Saffron Flags: A Critique of the Hindu Right 2 (1993); established a written constitution; and expanded into several front organizations, including the Bharatiya Janata Party (Indian People’s Party), the political wing that currently heads the Indian government; and the Vishwa Hindu Parishad (World Hindu Council), the social, education and religious wing. There are also several local, more extreme and violent groups associated with the Hindu Right, including the Bajrang Dal (Footsoldiers of Hanuman), a militant anti-Muslim youth group. Collectively, these are known as the Sangh Pariwar or ‘family collective’ of the Hindu Right. Their core ideology is ‘Hindutva’, which advocates that religious minorities must assimilate to the majority culture and language, respect and revere the Hindu religion, and glorify the Hindu race and culture. In short, they seek to establish India as a Hindu state. Muslims and Christians are regarded as foreigners, aliens and invaders, and their religious presence in the country as a threat to the Hindu nation (Vir D. Sarvarkar, Hindu Rashtra Darshan 3–4 (1949); Golwalkar (1966) above, and Madhav Sadashiv Golwalkar, We or our Nationhood Defined (1939)). 3 Jyotirmaya Sharma, Hindutva: Exploring the Idea of Hindu Nationalism (2003); Christophe Jaffrelot, The Hindu Nationalist Movement in India 27 (1998). 4 Valerian Rodrigues, Citizenship and the Indian Constitution, in Civil Society, Public Sphere and Citizenship: Dialogues and Perceptions 225 (Rajeev Bhargava and Helmut Reifeld eds, 2005).

The legal regulation of religion and hierarchy of citizenship  43 In the area of constitutional law, the struggle over the meaning of secularism in India and the place of religion in politics has been a highly contested one.5 Paradoxically, the Hindu Right has sought to redefine the meaning and parameters of the various components of secularism to suit its majoritarian political agenda, and has increasingly come to cast itself as the true inheritor of Indian secularism by influencing the meaning of equality, tolerance and freedom of religion – the central components of Indian secularism. First, it argues that, insofar as secularism requires that all religious communities be treated the same, the various laws protecting minority rights are evidence of the ‘special treatment’ which the state accords them and therefore constitute a violation of the constitutional mandate to treat all citizens equally. Indian secularism is largely premised on a substantive meaning of equality: not only are the various religious communities to be treated as equals, but the state provides for special protections extending to religious minorities as a means of addressing their relative disadvantage in relation to the majority religion. Some of these provisions include the right of religious minorities to their own educational institutions, personal status laws and the special autonomous status accorded to the Muslim-majority state of Kashmir.6 The Hindu Right argues that such protections amount to nothing more than ‘appeasement’ measures and constitute a violation of the ‘true spirit’ of secularism. The Hindu Right’s emphasis on the formal equality of all religions operates as an unmodified majoritarianism, whereby the majority Hindu community becomes the norm against which all others are to be judged and treated. It is this logic which enables them to persuasively argue in favour of a secular Uniform Civil Code to replace the personal family laws of each religious group and to govern all family and domestic matters; and to assert that Muslim women enjoy the same rights and should be treated the same as all Hindu women. On the question of tolerance, and armed with an ideology that views Hindus as both a race and a nation, the Hindu Right has argued that – unlike Christianity and Islam – Hinduism is the only religion in India that is committed to the value of religious tolerance because it does not aim to proselytize or gain converts. According to this logic, then, since secularism is about toleration and only Hindus are tolerant, then only Hindus are truly secular. A third move is around the content of the right to freedom of religion. The construction of religion and religious identity has been integral to the formation of secularism. The struggle over the meaning of the right to freedom of religion has also involved a struggle over the contours and content of religion. And this struggle has been partly provoked by the framework of secularism. A key site for this struggle involves the dispute over the legal title to the property at Ayodhya. The Hindu Right claims that Ayodhya was the birthplace of the Hindu god Ram, and that a commemorative Hindu temple was destroyed to build a mosque.7 This claim became the justification for the destruction on 6 December 1992 of a sixteenth century mosque, the Babri Masjid, which Hindu parties claim marked the exact birthplace of the god Ram. In particular, they argue that worship at this spot is a core ingredient of Hinduism and thus a part 5 Gary Jeffrey Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context (2003). 6 Almost immediately after coming to power for a second term in 2019, the Hindu right-led government withdrew the special status of Jammu and Kashmir under Article 370 of the Constitution, trifurcated Jammu, Kashmir and Ladakh, and reduced their status from states to union territories, to be ruled by the central government from New Delhi. 7 Ratna Kapur, The Ayodhya Case: Hindu Majoritarianism and the Right to Religious Liberty, 29(1) Maryland Journal of International Law 331 (2014).

44  Constitutions and religion of their right to religious liberty. Although there are no fewer than four million gods and goddesses who live with Indians on the sidewalks and streets, in taxicabs and in their homes, Ram has been accorded the status of the übergod in the discourse of the Hindu Right. As a number of historians have argued, the claim that the god Ram is the central Hindu deity runs counter to the polytheistic character of Hinduism, with the effect that its pluralist character is transformed to accord with a modern and monotheist construction of religion.8

3.

THE LEGAL NARRATIVE

The courts have weighed in at several points to give increasing validity to the Hindu Right’s interpretation of the various components of Indian secularism. Initially the Supreme Court’s position on secularism differed substantially from that promoted by the Hindu Right, and demonstrated a commitment to pluralism and to holding back the tides of intolerance and Hindu majoritarianism in the name of secularism.9 However, since the mid-1990s there has been a shift. The Court has endorsed an understanding of secularism whereby its rationale has been derived primarily from Hindu scriptures, in the name of secularism. In Ismail Faruqui, the Supreme Court heard a challenge to the constitutional validity of the central government’s acquisition of a disputed site in Ayodhya, a town in the northern part of India.10 Mobs of the Hindu Right had destroyed a sixteenth century mosque, the Babri Masjid, on the grounds that it was the site on which the central Hindu deity, Ram, was born. The central government acquired the land where the mosque once stood as well as the surrounding land with the purpose of establishing two trusts for the construction of a Ram temple, a mosque, a library and a museum, as well as providing amenities for pilgrims. The petitioner, a Muslim, claimed that the act was anti-secular and slanted in favour of the Hindu community, since it sought to simply accept the demolition as a fait accompli, instead of rebuilding the mosque that had been destroyed as the result of a criminal act. The petitioner further argued that the acquisition of the land including the disputed area interfered with the right to worship of Muslims and was thus a violation of the right to freedom of religion. A majority of the judges rejected the argument that the acquisition violated the constitutional principle of secularism.11 In the name of secularism, the majority opinion praised the principle of religious toleration found in

8 Romila Thapar, A Historical Perspective on the Story of Ram, 20 Communalism Watch (21–27 February 1993), https://​communalism​.blogspot​.com/​1993/​02/​historical​-perspective​-on​-story​-of​-ram​ .html, last accessed 20 January 2020. 9 See S.R. Bommai v Union of India (1994) 3 Supreme Court Cases 1 (India). After the destruction of the mosque in 1992, the Supreme Court in the Bommai case showed encouraging signs in unanimously affirming the importance of secularism to the Indian Constitution and emphasizing the principle of equal treatment of all religions. It issued a strong condemnation of those political forces committed to undermining more pluralistic instantiations of this constitutional ideal. In Bommai, the Supreme Court’s position on secularism differed substantially from that promoted by the Hindu Right, and the case suggested that the Court was committed to holding back the tides of intolerance and Hindu majoritarianism in the name of secularism. 10 Ismail Faruqui v Union of India. All India Reports 1995 Supreme Court 605 (India). 11 Id, at 644–45.

The legal regulation of religion and hierarchy of citizenship  45 Hindu scriptures and also concluded that a mosque is not an essential part of the practice of the religion of Islam, and that prayer (namaz) by Muslims could be offered anywhere.12 As a result, the land acquisition did not violate the religious freedom of Muslims. In this case the Court endorsed an understanding of secularism where the rationale was derived primarily from Hindu scriptures, and accepted the claim that secularism existed in India largely because of the religious toleration found in the Hindu scriptures. The Court also remarked that those responsible for the demolition of the Babri mosque were miscreants and their acts of vandalism could not be treated as representing the Hindu community.13 More recently, the courts seem to have inadvertently supported the ideology of the Hindu Right by stating that their calls for the dissolution of Muslim family law and the creation of a single, secular, uniform civil code to govern all family matters in India was not problematic. By characterizing any opposition to the proposed code on the part of the religious minorities as an example of religious minorities failing to assimilate into the fabric of the Indian nation, the government was not going against the grain of secularism. In another set of cases – popularly described as the Hindutva decisions – which involved a challenge to speeches appealing to the Hindutva ideology of the Hindu Right during an election campaign, the Supreme Court held that these simply represented an appeal to Indianness and ‘a way of life of people of the subcontinent rather than an attitude hostile to persons practicing other religions or an appeal to religion’, and that it was difficult to appreciate how the rights wing’s position could be assumed to be equated with narrow fundamentalist Hindu religious bigotry.14 This position not only elides the meaning of Hinduism to what the right wing says it means, but also assumes that Hinduism stands for Indianness, thereby leaving no room for other non-Hindu ways of being Indian. ‘Indianization’ is assumed to represent the political and cultural aspirations of all Indians through the construction of a uniform national culture that is Hindu in its essence.15 The Court thus held that the speeches were used to ‘promote secularism or emphasize the way of life of the Indian people and the Indian culture’, and to challenge religious discrimination rather than facilitate it.16 The speeches therefore conformed with the right to freedom of religion and did not constitute incitement to hatred against non-Hindus. The Supreme Court’s judgment is problematic for several reasons.17 First, the Court erred in concluding that Hindutva constitutes a way of life of the people of the subcontinent. In eliding the meaning of Hinduism with that of Hindutva, the Court failed to recognize that the term has historically had a specific meaning associated with the political philosophy of the Hindu Right.18 Finally, the Court erred in its acceptance of the characterization that the speeches were

Id, at 641. Id, at 634. 14 Dr. Prabhoo v Union of India. All India Reports 1996 Supreme Court at 1129. In the course of one election campaign, many candidates campaigned on the Hindutva platform and argued that the protections afforded to Muslims under various legal provisions violated the constitutional mandate of the equal treatment of all religions on which Indian secularism is based. 15 Id, at 1130. 16 Id. 17 Ratna Kapur, A Leap of Faith: The Construction of Hindu Majoritarianism Through Secular Law, 113(1) South Atlantic Quarterly 115 (2014). 18 Anil Nauriya, The Hindutva Judgments: A Warning Signal, Economic & Political Weekly (6 January 1996). 12 13

46  Constitutions and religion secular, by failing to appreciate the broader discursive and legal struggle over the meaning of secularism in which the Hindu Right has been a protagonist. The Hindu Right has appropriated the dominant understanding of Indian secularism to promote its vision of Hindutva and its agenda of establishing a Hindu state. In its hands, the concept of equal respect for all religions is a method for attacking the rights of religious minorities and ultimately erasing their identities. In 2010, in the High Court of Allahabad – in the northern state of Uttar Pradesh, where the city of Ayodhya is located – a 2–1 majority found in favour largely of the Hindu parties in allocating the land on which they claimed Ram was born, and in the process partly recognizing that the right to worship at the site is an essential ingredient of the Hindu faith.19 While this case was based on suits filed by various claimants, including religious groups, the decision had important constitutional ramifications. It set aside the plurality and diversity of arguments within Hinduism over the status of various deities, where many Hindus do not worship Ram, instead privileging one interpretation over others and essentially upholding an ossified conception of Hinduism. While all parties filed appeals in this case, the Bharatiya Janata Party (BJP), which has led the Indian government since 2014, was quick to declare that the law upheld faith. The decision indicates how the majoritarian claims and the Hindu Right’s narrow interpretation of Hinduism, or what Thapar has called a ‘syndicated Hinduism’, now constitutes the most significant challenge to the model of secularism extant in Indian politics and law, as well as the achievement of the Hindu Right’s central goal – establishing a Hindu state.20 The implications of these majoritarian norms in the Supreme Court’s rulings in the Hindutva cases have bolstered the position of the Hindu Right. Not surprisingly, the Hindutva decisions and the ruling on the Ayodhya temple by the Allahabad High Court were hailed as victories by the Hindu Right, which has repeatedly cited these holdings as an endorsement of the ‘true meaning and content of Hindutva as being consistent with the true meaning and definition of secularism’.21 The reasoning in the cases discussed, including the High Court decision on the Ayodhya temple, ultimately set the stage for the unanimous Supreme Court decision delivered in November 2019 awarding the entire disputed land to the deity and permitting the construction of a Hindu temple.22 The case marked a major victory for the ‘Hindu parties’. Part of the Court’s reasoning was based on its finding that the facts of the Hindus’ faith in Ram as a central deity and the site as being his birthplace could not be disputed. This finding was arrived at even though large tracts of Hindus do not worship Ram or even recognize him as a noted deity. It is somewhat controversial that in a civil suit, the Court arrogated to itself the role of final arbiter in determining the spot where ‘God’ was born. The case speaks to the success of the Hindu Right in pursuing its agenda in and through the discourse of secularism, and gradually establishing a hierarchy of citizenship based on faith.

Visharad v Ahmad, OOS, No 1 of 1989, Allahabad High Court 4 (2010). Romila Thapar, Syndicated Hinduism (2010). 21 BJP Manifesto, 19 January 1999. 22 M Siddiq (D) Thr Lrs v Mahant Suresh Das and Ors, 9 November 2019, Supreme Court of India, Civil Appeal Nos 10866-10867 of 2010. 19 20

The legal regulation of religion and hierarchy of citizenship  47

4.

IMPLICATIONS FOR CITIZENSHIP

The issue of secularism has become increasingly conjoined with the issue of citizenship. In recent times, there has been a growing emphasis on the majoritarian ascriptions of citizenship where Indian descent has become an overriding consideration, as has Hindu identity.23 What has emerged during the course of the past 40 years is an increasing emphasis on cultural and religious bonds and Indian origin in relationship to citizenship, rather than territorial boundary. The concept has been increasingly understood not simply in terms of opposition – that is, a relationship between the citizen and the ‘other’ – but in what Roy calls a ‘forclusion, where the outsider is present discursively and constitutively in the constitution of citizenship’.24 Citizenship obscures the hierarchies on which it is based, including religion. In India, citizenship is confined to people born to Indian citizens or whose parents were of Indian origin and did not forgo their citizenship. However, as discussed in the previous section, with the re-emergence of Hindu majoritarianism throughout the 1990s in the form of the Hindu Right, the entrenchment of citizenship in blood ties and cultural ascriptions has reached a crescendo and citizenship has become more exclusive. The Hindu Right has continuously regarded citizenship as an exclusively cultural and religious enterprise, prioritizing religious identity in its definitions of citizenship in the hope of establishing a Hindu state in India where religious minorities – especially Muslims and Christians – would have to conform. The Hindu Right has pursued a narrow conception of citizenship, privileging religious identity from its very inception in the early 1920s. 4.1

Muslim Women and Triple Talaq

Two cases illustrate the ways in which secularism has become entrenched in a majoritarianism, through targeting the Muslim ‘other’ and reinforcing a hierarchy of citizenship in the process. The first case involved a constitutional challenge to the practice of triple talaq – that is, the pronouncement of divorce by a Muslim man to legally separated from his wife by thrice uttering the word ‘talaq’, which immediately brings to an end their marriage.25 The issue considered by the Court was whether this practice was ‘fundamental to religion’ and whether it was part of an enforceable fundamental right to freedom of religion. In a plurality decision, the Supreme Court held that the practice was arbitrary and not enshrined in Sunni Islamic law. In determining whether the petitioner’s right to equality had been violated, the Supreme Court involved itself in determining whether the practice of triple talaq was essential to Islam and protected by the fundamental right to freedom of religion enshrined in the Constitution.26 23 Rodrigues, supra note 4, at 221–22; Niraja Gopal Jayal, Citizenship and its Discontents: An Indian History (2013). 24 Anupama Roy, Mapping Citizenship in India 6 (2010). 25 Shayara Banu v Union of India (2017) Supreme Court Cases 1. 26 These constitutional guarantees are found in Articles 25 and 26. They contemplate both individual and collective rights to the freedom of religion that extend well beyond the limited right to worship. Both articles accord primacy to public interest over religious claims and hence provide a wide margin of appreciation for the state to sponsor reforms. The ‘essential practices test’ was developed in the post-independence period by the Supreme Court. This test has been used by courts to ascertain those aspects of religion that do not fall within the state’s purview and are hence not entitled to absolute

48  Constitutions and religion The practice was opposed not only by women’s organizations, but also – more importantly – by Muslim women, who were not allowed a similar right and suffered disadvantage as a result of this unilateral and abrupt pronouncement.27 The practice was backed by the All India Muslim Personal Law Board, which argued that the triple talaq was a legitimate way to end a marriage, and that any interference with the practice constituted an interference in the right to religious freedom and expression under Article 25 of the Indian Constitution. The court case inevitably became politicized, with the BJP supporting a ban on the practice, which served its interests in denigrating the Muslim community, specifically Muslim men. At the same time, by lending its support to the equality rights of Muslim women, it immediately set up the issue as one opposed to the right to freedom of religion. It thus placed the Muslim woman in the awkward and risky position of choosing between her right to equality and her right to religious freedom.28 For the Muslim women who led the challenge to the practice, bringing together both their religious identity and their right to equality was central to their position. The case was significant insofar as it placed the Muslim woman at the centre of the struggle over the meaning of both citizenship and secularism. In striking down the practice, the Court placed itself in a complicated position of becoming the ultimate arbiter of what constitutes an essential practice in any given religion. At the same time, had the Court upheld the practice on the grounds that any intervention in the personal space and faith of minority communities would be in contravention of the freedom of religion clause, it would have been seen as reinforcing gender subordination.29 What is important for my argument is that secularism is serving as a site on which secular judges are determining the legitimate content and parameters of a religion. 4.2

The ‘Migrant’ Subject and Citizenship

The issue of religious identity has become particularly significant in the debate over the migration of thousands of Bangladeshis into Assam since 1971. While a number of families have established firm roots in the state, their presence has produced tensions with the local

protection. See The Commissioner, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, All India Reports (1954) Supreme Court 1005; Sri Venkatramana Devaru v State of Mysore, All India Reports (1958) Supreme Court 255; Durgah Committee v Hussain Ali, All India Reports (1961) Supreme Court 1402; Saiffudin Saheb v State of Bombay, All India Reports (1962) 853; Shastri Yagnapurushdasji v Muldas Bhundardas Vaishya, All India Reports (1966) Supreme Court 1119. 27 Jyoti Punwani, Muslim Women: Historic Demand for Change, 51(42) Economic and Political Weekly, 15 October 2016, www​.epw​.in/​journal/​2016/​42/​commentary/​muslim​-women​.html, last accessed 25 April 2020. 28 The case involved some of the same dilemmas as the famous Shah Bano case in 1984, which concerned the issue of maintenance and whether the secular civil procedures would apply to ensure that a divorced Muslim woman would be given maintenance by her former husband, after the Muslim law ceased to apply. The latter provided maintenance only for up to three months. The Court, in a controversial decision, decided in favour of Shah Bano; this produced uproar among Muslim groups, which argued that this amounted to undue interference in their faith. The Hindu right backed Shah Bano, invoked the right to equality and attempted to further demonize Muslim men: Mohammed Ahmed Khan v Shah Bano Begum 1985 Supreme Court Cases (3) 1984. See also Zakia Pathak and Rajeswari Sunder Rajan, Shahbano, 14(3) Signs: Journal of Women in Culture and Society 558 ff. (1989). 29 Mathew Idiculla and Satya Prasoon, Untangling the Debate on Triple Talaq, The Wire (16 June 2017).

The legal regulation of religion and hierarchy of citizenship  49 indigenous communities, who are claiming erosion of their linguistic, cultural and political identity. There are also competing claims between different groups of migrants – namely the Hindi-speaking migrants, who have entered the state from different parts of India, in particular Bihar and Rajasthan; and the Bangladeshi migrants, who have ostensibly entered the state from Bangladesh.30 While the story of migration into the Northeast is a complex one, the Hindu Right has polarized the issue by viewing it almost exclusively through the lens of religion – as a tension between the Hindu insider and the Muslim outsider. In the 2005 Sonowal case, the Supreme Court reinforced the relationship of citizenship with cultural status or religious identity. The case involved the treatment of Bangladeshi migrants crossing the border into Assam.31 Under the terms of the Illegal Migrants (Determination by Tribunal) Act 1983 (IMDT Act), they were treated as Indians unless the person alleging otherwise could prove so. The petitioner – a former president of the Assamese Students Union – alleged that the IMDT Act was unconstitutional as it discriminated against a class of citizens of India, making it impossible for citizens resident in Assam to secure the detection and deportation of foreigners from India. The petitioner claimed that the IMDT Act had actually ended up protecting illegal migrants. The Supreme Court declared the Act unconstitutional on the ground that it violated Article 355 of the Indian Constitution, which places a duty on the central government ‘to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution’. It can be construed broadly, when matters of security are involved and other considerations are subordinate to this end that: ‘It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character or from vast hordes of its people crowding in upon us.’32 The Court relied heavily on an Indian army report of 1998, which stated that the influx of illegal migrants was a major contributory factor in the outbreak of insurgency in the state, and that ‘dangerous consequences’ would result from large-scale illegal migration from Bangladesh, ‘both for the people of Assam and more for the Nation as a whole [...] No 30 Udayon Misra, Targeting the Innocent in Assam, 42(4) Economic and Political Weekly 273–75 (2007); M.S. Prabhakara, Assam: Updating the Past, 43(4) Economic and Political Weekly 271 (2007). 31 Sarbananda Sonowal v Union of India (2005) 5 Supreme Court Cases 665. The case must be set against the backdrop of the secession of Bangladesh from Pakistan in 1971. Hundreds of thousands of migrants fled into Assam in the early 1970s, when East Pakistan was liberated, and the new country of Bangladesh was formed. The migrants continued to pour into Assam throughout the 1980s in search of a better life – an influx that created resentment among the local population, and led to violence and the slaughter of thousands of migrants in 1983. Against this background, the Illegal Migrants (Determination by Tribunal) Act 1983 was enacted by the Indian government – partly to prevent a witch hunt against illegal migrants, but also with the professed aim of making the detection and deportation of illegal migrants easier. At the same time, in an accord signed in 1985 (Assam Accord), the government granted citizenship to all settlers from the former East Pakistan who had come to Assam before 1971. In one stroke, thousands of migrants became Indian citizens. But thousands of others who had arrived after 1971 remained illegal. In the 1990s, the BJP – the political wing of the Hindu Right – launched an aggressive national campaign against the so-called ‘Bangladeshi migrants’ (Michael Gillian, Refugees or Infiltrators? The Bharatiya Janata Party and ‘Illegal’ Migration from Bangladesh, 26(1) Asian Studies Review 73 ff. (2001); Sujata Ramachandran, Of Boundaries and Border Crossings: Undocumented Bangladeshi ‘Infiltrators’ and the Hegemony of Hindu Nationalism in India, 1(2) Interventions 235 ff. (1999)), casting them as Muslims and outsiders who posed a security risk. 32 Sonowal, para 57 citing Chae Chan Ping v United States, 130 US 581 [1930].

50  Constitutions and religion misconceived and mistaken notions of secularism should be allowed to come in the way of recognising this reality’.33 In striking down the Act, the Supreme Court accepted a bloated definition of ‘aggression’ by incorporating economic aggression into the ambit of Article 355 and equating illegal immigrants with infiltrators and Muslims. The equation of Muslim identity with alterity and danger was overtly manifested in the decision, which cast the Bangladeshi Muslim migrant as an ‘aggressor’ and a security threat; and in the process further entrenched the issue of religion into the normative definitions of Indian citizenship, of who belongs and who does not. Those who do not belong are expelled from the realm of juridical entitlements conferred through citizenship and are subject to policing under migration, anti-terror and national security laws. The Court’s harsh response to this influx into India foregrounds religion as integral to the formation of Indian citizenship, rendering the situation of the Indian Muslim who is a citizen increasingly suspect and unstable. It sets the stage for ultimately rendering the Indian Muslim stateless. The suturing of culture into the fantasy of the nation continues to set the discursive stage on which the emerging debates on who is and who is not a legitimate citizen subject are being played out. The role and meaning of Hindu culture elaborated in the decisions on secularism discussed earlier, and how it emerged as integral to the formation of the Indian citizen at the point of independence, have remained significant into the twenty-first century. The Muslim continues to be placed on the peripheral boundaries of citizenship, where cultural assimilation becomes a criterion for legitimacy and proof of loyalty to the nation. While the Bangladeshi migrants are not formal legal citizens, the increasing articulation in public discourse of illegal migration with Muslims, destabilizes the claims and constitution of the Indian Muslims, who are citizens. Muslims who are citizens within India are rendered suspect should they fail to conform, or if they claim special or preferential treatment. Muslims, citizens and non-citizens, must prove their legitimacy by establishing loyalty as well as continued subordination to Indian citizens who are Hindu. In the process, religion as one of the technologies of citizenship sets up a hierarchy of citizens who are ‘real’ or ‘authentic’ and those who are suspect or regarded as threats. The contest over citizenship reached a crescendo with the enactment of the Citizenship Amendment Act in 2019 and the proposed implementation of the National Register of Citizens (NRC) by the BJP.34 The Act provides an easier path to Indian citizenship for migrants of all faiths from neighbouring countries except Muslims. Section 2 provides that these migrants shall not be treated as ‘illegal’ and there is also a proviso that reduces the number of years required for the naturalization of this category. In effect, for the very first time, the law establishes religion as a criterion for citizenship. The Act has been challenged on the grounds that it violates the right to equality under Article 14, is arbitrary and privileges religious persecution over other forms of persecution in claims to citizenship. These features go against the idea of secularism, which is part of the basic structure of the Indian Constitution. In addition, the government has proposed to implement the NRC, which was created by the 2003 amendment

Sonowal, para 17. See Abhinav Chandrachud, Secularism and the Citizenship Amendment Act, 4 January 2020, available at https://​ ssrn​ .com/​ abstract​ =3​513828, last accessed 25 April 2020; Niraja Gopal Jayal, Reconfiguring Citizenship in Contemporary India, 42(1) South Asia: Journal of South Asian Studies 33–50 (2019). 33 34

The legal regulation of religion and hierarchy of citizenship  51 of the Citizenship Act, 1955, to document all the legal citizens in India. The intention is to identify and deport all illegal migrants. It is feared that the NRC will be used to target Indian Muslims and result in their statelessness. These initiatives triggered large-scale protests throughout the country. The projection of the Muslim, as both an outsider and a migrant, as a threat foregrounds religion as a relevant criterion in determining belonging and the shaping of citizenship along the lines of intolerance and disapproval of difference.35 The cases illustrate how secularism, combined with an understanding of citizenship wrapped in a majoritarian culture, sets out the terms for both political inclusion, as well as political exclusion. Within the contemporary period, Muslims are particularly vulnerable to being cast outside the comfort zone of citizenship simply by virtue of their religious identity and the association of Islam in the public domain – both within India and at the broader global level – with ‘terror’, ‘injustice’ and ‘illiberal’ values. And this has increasingly come to define the parameters of Indian secularism in constitutional law.

5.

THE FRENCH REPUBLIC AND LAÏCITÉ

In light of the limitations of Indian secularism, the question remains as to what is to be done to save secularism from its majoritarian moorings. One argument is to adopt a model based on the separation of religions and state. But this model has shown little signs of stopping the advancing tides of majoritarianism. In this section, I examine the separation model that has been adopted by France in the doctrine of laïcité – a term that it considers to be untranslatable, on grounds that it is both distinct from and superior to most variants of secularism.36 While laïcité proclaims a rigid separation between state and religion, as it is based on the French policy of cultural assimilation, it is not evident that it has managed to contain religion to the private sphere. Laïcité is based on the sameness model of equality in the public sphere, and relegates linguistic, cultural, ethnic and religious difference to the private arena. However, this understanding belies the fact that there are at least eight different legal regimes that organize the relations between the state and religion in metropolitan and overseas France. In the overseas department of French Guyana, the 1828 Royal Ordinance regulates Catholicism and the department pays the salaries of the Catholic clergy. In Mayotte, another overseas department, the local customary law of the Muslim majority continues to apply. Within France, Alsace Mosel is governed by the Napoleonic concordat system, with its four recognized religions being subsidized and regulated by the state. In all these instances, there exist features that seem to violate the norms of secular neutrality.

35 See Oren Gruenbaum, India’s Foreign Minister defends Controversial Citizenship Act, 16 April 2020, Commonwealth Update, https://​doi​-org​.ezproxy​.library​.qmul​.ac​.uk/​10​.1080/​00358533​.2020​ .1747173, last accessed 25 April 2020. 36 Joan Wallach Scott, The Politics of the Veil 15 (2007). France has held itself out as a secular republic since 1789. The principle of laïcité was established through the official separation of the church and state in 1905. See Loi du 9 décembre 1905 concernant la séparation des Églises et de l’État [Law on the Separation of Churches and State of 9 December 1905], Journal Officiel De La République Française [J.O.] [Official Gazette Of France], 9 December 1905, Art. 2, www​.assemblee​-nationale​ .fr/​histoire/​eglise​-etat/​loi​-scan​.asp, last accessed 25 April 2020.

52  Constitutions and religion Historians have pointed to the integral relationship between religion and race in the colonial context of France – in particular, Islam and French identity – highlighting the fluid nature of these concepts. This historical analysis identifies the existence of a specifically ‘French Islam’ from the interwar years to the present;37 and also a ‘Muslim French’ subjectivity, which refers to French citizens who practise their faith within France.38 These relationships are claimed by minority groups as integral to the constitution of French citizenship and the identity of the French Republic. What is important is how Christianity emerges as central to the inheritance of secularism in France and elsewhere in Europe. In Mahmood’s discussion of the 2011 case of Lautsi v Italy, decided by the European Court of Human Rights (ECtHR), she highlights how these linkages are presented in a manner that assumes the crucifix, and hence Christianity, represents the same values as the Enlightenment, and that this is claimed as part of common sense.39 The case was an appeal from a lower chamber decision that struck down the representation of the crucifix in a public classroom as violating the norms of secularism.40 The Vatican’s response to the lower chamber’s ruling stated that: ‘It seems as if the court wanted to ignore the role of Christianity in forming Europe’s identity, which was and remains essential.’41 In an appeal to the Grand Chamber in 2010, supported by 20 European nations, the Lithuanian Ministry of Foreign Affairs stated: ‘The use of crucifixes in public in Catholic countries reflects the European Christian tradition and should not be regarded as a restriction on the freedom of religion.’42 The Chamber reversed the lower court ruling and held that the crucifix was a ‘passive symbol’43 that did not infringe on the beliefs of the complainants, even if they were non-believers. It concluded that displaying the crucifix in a public school did not amount to proselytization. It agreed with the Italian Administrative Council’s decision that the crucifix was in fact a cultural symbol, representative of ‘the Italian civilization’ and its ‘value system:

Naomi Davidson, Only Muslim: Embodying Islam in Twentieth-Century France (2012). Mayanthi L. Fernando, The Republic Unsettled: Muslim French and the Contradictions of Secularism (2014). 39 Saba Mahmood, Religious Difference in a Secular Age: A Minority Report 165–68 (2016). 40 Lautsi v Italy, App. no. 30814/06, Eur. Ct. H.R. 47 (2009), www​.echr​.coe​.int/​ECHR/​homepage​ _en, last accessed 25 April 2020. Soile Lautsi, a dual Finnish and Italian citizen, sued a public school in Padua on behalf of her two minor sons, arguing that the compulsory display of crucifixes in the school’s classrooms violated her and her children’s right to freedom of thought, conscience and religion protected in Article 9(1) of the European Human Rights Convention (ECHR). In March 2005, the Supreme Administrative Court in Italy ruled against Ms. Lautsi, arguing that the crucifix did not have any religious connotation in Italy, but rather symbolized Italy’s historical and cultural values, which may have had religious origins in the past, but no longer did so. On appeal to the ECtHR, the Second Chamber ruled that Italy was in violation of Article 9(1) for several reasons – the most important being that the compulsory display of crucifixes clashed with an individual’s ‘secular convictions’ and was ‘emotionally disturbing for pupils of non-Christian religions or those who professed no religion’; and that the decision to hang a crucifix in a public classroom constitutes an assessment of the legitimacy of a particular religious conviction, implying that the Italian government’s decision rested on religious belief and thus was implicated in the category demarcated as religious. It thus held that Italian public schools could not display crucifixes. 41 Quoted in Mahmood, supra note 41, at 167. 42 Nathan Greenhalgh, When a Cross Isn’t a Cross, Baltic Reports (13 January 2010). 43 Lautsi v Italy (2009) quoted in Lautsi and Others v Italy, 18 March 2011, para 31, http://​hudoc​ .echr​.coe​.int/​sites/​eng/​pages/​search​.aspx​?i​-001​-104040, last accessed 13 November 2019. 37 38

The legal regulation of religion and hierarchy of citizenship  53 liberty, equality, human dignity and religious toleration, and accordingly also of the secular nature of the state’.44 Mahmood draws specific attention to the ECtHR’s statement that it is possible to discern a thread that links the ‘Christian revolution of two thousand years ago to the affirmation in Europe of the right to liberty of the person’ in a secular state.45 Thus, the Court concluded that: [I]n the present day social reality the crucifix should be regarded not only as a symbol of a historical and cultural development and therefore of the identity of our people, but also as a symbol of a value system: liberty, equality, human dignity and religious toleration and accordingly also of the secular nature of the state.46

The right to display the crucifix thus fell within the due margin of appreciation and the Christian theological link with secularism remained uninterrogated. In welcoming the decision, the Catholic Church proclaimed that the Europe we know today would not exist without the crucifix.47 The case illustrates the central place of Christianity to European identity and the understanding of secularism. And of course, such statements are becoming more and more open and amplified in the context of the increased presence and visibility of the Muslim in Europe, who is cast as a threat to Europe’s civilizational identity, with Islam being equated with intolerance, homophobia and fanaticism. The Lautsi case asserts the state’s ability to define the scope of religion, its content and meaning in accord with values of the majority religion at the expense of minorities. The majoritarianism that is replete in the separation model of understanding of secularism finds its most explicit expression in the French doctrine of laïcité. This is made evident in a series of enactments by the French legislative assembly banning various manifestations of the veil and subsequent challenges to these enactments.

6.

THE LEGAL NARRATIVE

The doctrine of laïcité is based on the complete confinement of religion to the private sphere and a prohibition on signs or demonstrations of faith in the public space. The veil has continued to pose a challenge to French identity, both in the context of the country’s colonial past48 and in the challenge it poses to the doctrine of laïcité in contemporary times. The constitutional controversy on the wearing of the veil can be traced back to the ‘headscarf affair’ in 1989, when three junior high-school Muslim students were expelled from a public school for wearing the headscarf to class.49 The position of Muslim women and girls who choose to wear Italian Administrative Court judgment, quoted in Lautsi v Italy (2011), para 15. Mahmood, supra note 41, at 7. 46 Lautsi v Italy (2009) quoted in Lautsi v Italy (2011), para 15. 47 Mahmood, supra note 41, at 168. 48 Frantz Fanon, A Dying Colonialism 35–63 (1965). 49 Elisa T. Beller, The Headscarf Affair: The Conseil d’ État on the Role of Religion and Culture in French Society, 39 Texas International Law Journal 582–624 (2004); see also Nusrat Choudhury, From the Stasi Commission to the European Court of Human Rights: L’Affaire du Foulard and the Challenge of Protecting the Rights of Muslim Girls, 16 Columbia Journal of Gender and Law 199 ff. (2007). 44 45

54  Constitutions and religion the veil exposed the limited and myopic framework of French identity and belonging in their encounters with the doctrine of laïcité and its emphasis on cultural assimilation. The reading of the veil as a religious sign or manifestation of belief based on women’s subordination and hence challenging the state’s inviolable personality dominated the debates and understanding of the veil.50 However, such a reading obscures how this practice is integral to the very being of some adherents.51 In the subsequent national debates that followed, this understanding of the veil was fully eclipsed as the practice came to be increasingly linked to discussions about immigration and an aggressive assertion of the French politics of assimilation. These debates form the backdrop of the subsequent enactments by the French legislature that sought to restrict the wearing of the veil in the public sphere. 6.1

The Veil and a Secular Dressing Down

The first law, enacted in 2004, imposed a ban on the wearing of religious symbols and clothing – including the Islamic headscarf – in public schools.52 The law was based on the recommendations of the Stasi Commission Report, which stated that ‘young girls are pressured into wearing religious symbols’; and that ‘the familial and social environment sometimes forces on them a choice that is not theirs’.53 The second law, enacted in 2010, banned the wearing of the burqa – a traditional garment that veils both face and body – in public.54 Though couched in neutral terms and secular language that everyone must be treated the same, and that religion should be secluded to the private sphere, the 2004 legal ban on manifesting religious symbols and veils in France has had a disproportionate impact on Muslim women, who are also often racial minorities.55 While this law initially prohibited only overtly manifest markers of religious affiliation, a subsequent clarification by the Ministry of Education stated that ‘all forms of the Islamic veil, but only crucifixes of manifestly exaggerated dimensions, would fall within the purview of the ban’.56 The stark socio-political bias underlying the ban is evident in this clarification. The stipulated exceptions reflect the Bernard Stasi, Laïcité et république, Commission présidée par Bernard Stasi 69–70 (2004). Talal Asad, French Secularism and the ‘Islamic Veil Affair’, 8(1–2) The Hedgehog Review: Critical Reflections on Contemporary Culture 96 (2006). 52 On 15 March 2004 the French Parliament enacted Law No. 2004–228, inserting a new Article L. 141–5–1 in the Education Code which provides: ‘In State primary and secondary schools, the wearing of signs or dress by which pupils overtly manifest a religious affiliation is prohibited. The school rules shall state that the institution of disciplinary proceedings shall be preceded by dialogue with the pupil’ (Loi 2004–228 du 15 mars 2004 [Law 2004–228 of 15 March 2004], Journal Officiel De La République Française [J.O.] [Official Gazette Of France], 17 March 2004, p. 5190). 53 Commission de reflexion sur l’application du principe de laïcite dans la Republique. Rapport au President de la Republique (11 December 2003), http://​lesrapports​.ladocumentationfrancaise​.fr/​BRP/​ 034000725/​0000​.pdf, last accessed 25 April 2020. 54 Loi 2010–1192 du 11 octobre 2010 [Law 2010–1192 of 11 October 2010], Journal Officiel De La République Française [J.O.] [Official Gazette Of France], 12 October 2010, p. 18344, www​.legifrance​.gouv​.fr/​affichTexte​.do​?cidTexte​=​JORFTEXT000022911670​&​fastPos​=​1​&​fastReqId​ = ​ 1 433419319 ​ & ​ c ategorieLien ​ = ​ i d ​ & ​ n avigator ​ = ​ n aturetextenavigator ​ & ​ m odifier ​ = ​ L OI ​ & ​ f astPos ​ = ​ 1 ​ &​ fastReqId​=​1433419319​&​oldAction​=​rechTexte, last accessed 25 April 2020. 55 Adrien Katherine Wing and Monica Nigh Smith, Critical Race Feminism Lifts the Veil?: Muslim Women, France and the Headscarf Ban, 39 University of California, Davis Law Review 745 (2007). 56 Circulare no. 2004–084, Journal Officiel De La République Française [J.O.] [Official Gazette Of France], 18 May 2004. 50 51

The legal regulation of religion and hierarchy of citizenship  55 practices of the dominant religious community; and the very fact that ostentatious symbols of faith are not permitted to be worn in public is reflective of a religious and cultural ethos where such expression of selfhood, identity and community is not a common or pervasive aspect of popular religious or cultural practice. The benevolent rhetoric of purported equality across different cultures and religions actually signifies ‘the same as’ the dominant culture/religion, and raises concerns of subordination and coercion among religious and/or cultural minorities.57 In 2007, the ECtHR dismissed a petition that claimed the law violated the wearer’s right to religious freedom under Article 9 of the European Convention on Human Rights (ECHR). The central ground for upholding the law was based on the principle of secularism as being a founding principle of the French Republic, ‘to which the entire population adheres and the protection of which appears to be of prime importance, in particular, in schools’; the law was also upheld on the basis of protection of women’s rights.58 The uninterrogated logic of this position produces outcomes that seem reasonable and acceptable, despite evidence to the contrary. The 2010 law, popularly described as the burqa ban, outlawed the public wearing of the full veil or burqa.59 Here ‘public’ is defined as ‘public roads and places open to the public or used for the public service’.60 The initiative for the legislation came from several French members of Parliament concerned with the impact of the full-face veil on French secularism. They endorsed the position that France: cannot accept to have in our country women who are prisoners behind netting, cut off from all social life, deprived of identity [...] That is not the idea that the French republic has of women’s dignity [...] The burqa is not a sign of religion, it is a sign of subservience.61

One lawmaker specifically stated that: ‘[i]t is our living together based on the Spirit of the Enlightenment that is violated’ by the burqa.62 The French president at the time, Nicolas Sarkozy, similarly declared that the ‘the full veil is not welcome in France because it is contrary to our values and contrary to the ideals we have of a woman’s dignity’.63 These remarks demonstrate a prevalent anxiety that Islam is not simply a religion that is private and personal, but that it is visible and threatens to undermine the secular project. The Constitutional Council subsequently upheld the constitutional validity of the ban. These legal enactments – based on fear and defence of a narrow notion of the French state’s personality – reinforce the stigma that attaches to the wearing of the veil and the singular

57 See Susanna Mancini, The Power of Symbols and the Symbols of Power: Secularism and Religion and Guarantors of Cultural Convergence, 30(6) Cardozo Law Review 2638–42 (2009), who argues that in the jurisprudence of the ECHR, Christian norms are taken to reflect the neutral standard and Islam the irreconcilable other. 58 Dogru v France, 2008 Eur Ct H R 1579, paras 72 and 66, respectively. 59 Loi 2010–1192. For a detailed philosophical discussion on the headscarf and burqa see Alia Al-Saji, The Racialization of Muslim Veils: A Philosophical Analysis, 36(8) Philosophy and Social Criticism 875–902 (2010). 60 Loi 2010–1192, Article 2. 61 Vaiju Naravane, The Burqa Debate Splits France, The Hindu (14 July 2009). 62 Assemblée Nationale, Rapport d’information no. 2262, Au nom de la mission d’information sur la pratique du port du voile intégral sur le territoire national, 26 January 2010, p. 14. 63 See Steven Erlanger, Parliament Moves France Closer to a Ban on Facial Veils, The New York Times (13 July 2010).

56  Constitutions and religion view that Islamic religious practices are subordinating, misogynistic and utterly repressive in relation to women. The position of some French feminists in relation to both headscarf and burqa further reproduced the general social idea that Muslim women are always coerced into wearing the veil – the rhetoric of gender equality obscuring the liberal democratic state’s coercive act of banning the practice. Such skewed conviction completely forecloses any possibility of accepting the rationale that some women are in fact not oppressed by the veil; that such practitioners actively desire to veil and are freely exercising personal choice in this regard. The burqa ban was challenged in SAS v France as violating the claimants’ rights under a host of ECHR articles, though the ECtHR focused primarily on Articles 8, 9 and 14.64 The government’s central argument was based on public safety concerns as well as ‘respect for the minimum set of values of an open and democratic society’, which includes gender equality, human dignity and ‘respect for the minimum requirements of society’ or ‘living together’. Interestingly, the ECtHR rejected some of the central arguments that had been made in the earlier cases.65 Importantly, it accepted that the burqa is a choice, avoiding the essentialism and paternalism of earlier cases. Instead, its decision relied on the government’s justification of ‘respect for the minimum set of values of an open and democratic society’ or ‘living together’ as a legitimate ground for the restriction on the right to manifest religion or belief under Article 9. As this notion is not explicitly stated as a permissible ground in the ECHR – that is, under either Article 8(2) or 9(2) – the ECtHR interpreted it as falling within the broad ‘protection of the rights and freedoms of others’.66 Thus, even if the claimant wore the veil freely and as an exercise of her choice and liberty of expression, the ban would still be justified on the basis of the ECtHR’s reasoning that it was incompatible with the democratic precept of ‘living together’.

7.

IMPLICATIONS FOR CITIZENSHIP

Secularism or laïcité in France illustrates how the courts and legislature are implicated in drawing not only the parameters of religious freedom, but also the actual content of religious belief and expression, including what constitutes public and private expression. The question of the cultural specificity of France’s policy of laїcité or neutral ‘secularism’ is therefore suppressed, as is the hierarchy of citizenship on which it is based. As mentioned at the outset of this chapter, this doctrine features a number of embedded Christian cultural and religious prac64 S.A.S v. France, 2014 Eur Ct HR 695. Article 8 provides for the respect for family and private life, subject to Article 8(2), which states: ‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’ Article 9 protects freedom of thought, conscience and religion, subject to Article 9(2), which states: ‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’ Article 14 prohibits discrimination on a number of grounds, including race, sex and religion. The ECtHR completely dismissed the claims brought under Articles 3 (prohibition of torture), 10 (freedom of expression) and 11 (freedom of assembly). 65 For example, Sahin v Turkey, 2005 Eur Ct HR 819. 66 SAS v France, para 117.

The legal regulation of religion and hierarchy of citizenship  57 tices that are presented as neutral and unbiased. These include the perpetuation of Christian holidays in the Republican calendar; the government funding of hundreds of private Catholic schools in contrast to just a handful of Muslim schools, nationwide;67 and the definition of national culture as ‘Christian’. The state’s envisioning and enshrining of the Republican citizen is not a purely neutral act. Rather, it is a demand that the ‘other’ – even though a citizen of France – think beyond the upholding of minority difference, and conceptualise his or her selfhood entirely in terms of Republican French identity; that is, in alignment with majoritarian ideals. The call to think beyond difference and to assimilate moves in one direction. It usually ends up reinforcing the dominance of the dominant and the conditions in which the hierarchies of power that operate through the concept of citizenship do not vanish. Removal of the overt markers of difference ensures the stability of these hierarchical arrangements, as well as a distinct understanding of exactly who is adequately and appropriately a citizen within a seemingly pluralistic liberal society. The criteria for full citizenship include evidence of assimilation into the explicit cultural norms of the majority embedded in the doctrine of laïcité. In the SAS case, the Court took the unusual step of upholding the ban on the burqa on the grounds of ‘living together’ – a ground that is not stipulated in the ECHR. In upholding this justification, the ECtHR’s analysis focused on the ‘face’, stating that it played an important role in the civility of social interactions and open interpersonal relationships. These were important markers of the community life of a society, therefore wearing of the burqa in public was ‘incompatible in French society with the ground rules of social communication and, more broadly, the requirements of “living together”’.68 The ECtHR accepted the findings of a parliamentary commission tasked with drafting a report on the wearing of the burqa in France, which described the practice as being at odds with the values of the Republic, constituting a denial of fraternity and ‘a negation of contact with others and a flagrant violation of the French principle of living together’.69 This ruling privileges the concept of ‘living together’ over and above the right to manifest religion; it reflects the assimilationist impulse as well the dominant understanding of the state’s personality which underscores laïcité. The ECtHR’s holding further underscores the unstated religious majoritarianism that informs the requirements of ‘living together’, where manifestations of belief – for example, in the form of displays of the cross, recognition of Christian holidays in the secular calendar or state support for Christian-denomination schools in France – remain unscrutinized, yet continue to inform the principle of secularism or laїcité that is declared a cornerstone of the French Republic. ‘Living together’ operates exclusively in one direction – that is, in favour of majoritarianism; and remains somewhat problematic, given that it is not a right recognized under the terms of the ECHR. Nevertheless, juridical approval of this concept demands compliance by Muslim women who are French citizens. It does not require any simultaneous obligation on the part of the majority to live together with the veiled woman, for whom the practice is an inherent aspect of her subjectivity.

67 Catherine Nixey, A School Condemned to Death, The Guardian (16 May 2009), www​ .theguardian​.com/​education/​2009/​may/​26/​reussite​-france​-muslim​-school, last accessed 25 April 2020. 68 SAS v France, para 153. 69 Ibid, para 17.

58  Constitutions and religion

8. CONCLUSION The comparison between the different models of secularism presented in this chapter indicates that at the heart of the constitutional discourse on secularism in India and France is a policy of assimilation into a taut and narrow vision of the state’s identity or personality. It is a policy that aims at the erasure of cultural and religious minorities. It is a policy that is most specifically directed at the Muslim minority, but also includes other religious minorities which pose any threat to, or are in any way different from, the dominant religious norm. The imperatives of both the separation and administration of religion are integral to secularism. This tension is played out in the different models by being displaced onto religious minorities – invariably Muslims, who become the embodiment of this contradiction. Prejudice against French Muslim citizens or Indian Muslim citizens is constitutive of secularism, emanating from the idea of Europe as essentially Christian or India as essentially Hindu, while being simultaneously secular in their cultural and political ethos. It is about the very identity of the nation; and the fact that the preservation of this identity will be the primary consideration in any debates about secularism. The analysis encourages us to examine the work that secularism is doing in constitutional discourse as a project of governmentality, regulation and subject/citizenship constitution. It is critical to examine how the imbrication of religion and politics, rather than their separation, and the production and management of religious subjects, rather than guaranteeing the right to freedom of religion, are involved in the story of secularism and constitute part of a disciplinary regime. One way of understanding this is that in order for secularism to deal with religion, it first needs to identify what religion is, which religious groups are entitled to protection, and which pose a threat to the nation’s personality – invariably defined in majoritarian terms. It is possible that the model of secularism that acknowledges the presence of religion and the state’s involvement as well as investment in religion may better enable such an analysis than one based on neutrality and absolute separation. The separation model refuses this acknowledgement, despite the fact that religion is present in this model, and hence provides no starting point for us to begin a deeper analysis. This shift in understanding and approach may enable a democratic revitalization of the principle of secularism and move beyond the general self-explanatory invocation of secularism, which fails to turn the mirror on its own architecture and thus reveal how religion is foundational to its structure.

ACKNOWLEDGEMENTS My thanks to Susanna Mancini for the opportunity of presenting an earlier version of this chapter at the Bologna Institution for Policy Research, Johns Hopkins School of International Advanced Studies, in October 2016. I am also appreciative of the administrative support and time afforded by Francesco Biagi. I am also deeply grateful for the very careful editing and research assistance provided by Cate Read.

4. The theoretical framework of modern Islamic constitutionalism Andrew F. March

1.

A BRIEF HISTORY OF MODERN ISLAMIC CONSTITUTIONALISM

Unlike nineteenth century Europe – which, in the wake of the French Revolution, witnessed successive waves of populist political struggles against monarchy, aristocracy, the church and, eventually, the very liberal classes that triumphed in some of the earlier phases of revolution – the first constitutional movements of the Islamic world were elite-driven, top-down affairs. As Muslim rulers in the Ottoman and Persian spheres (including Ottoman satellite states such as Egypt and Tunisia) initiated reform movements in the eighteenth and nineteenth centuries in order to keep pace with European powers in the areas of technology, finance, administration, agriculture, industry and eventually law and education, new classes of elites were created. Some of these were the officials of newly empowered and rationalized bureaucracies, which in some cases came to wield dominance over their nominal sovereigns. There were also newly educated classes of intellectuals, writers, translators and educators, who often worked for the bureaucracies, but had their own ideas about modernization and political legitimacy. New (and old) merchant classes developed complex relationships with international capitalist markets and local structures of taxation and commerce. Military elites struggled with the imperative of modernization while wanting to preserve their traditional privileges. These developments occurred, above all, in conditions of increasing European military and financial hegemony over the southern and eastern Mediterranean. This, in the broadest possible terms, was the context for the first written constitutions in Muslim countries, namely in Tunisia (1861), the Ottoman Empire (1876), Egypt (1882) and Qajar Persia (1906−7). While often a response to European imperial pressure, the vision of certain local modernizing elites was that these constitutions would contribute to limiting the arbitrariness of both executives (sultans, beys and shahs) and bureaucrats, preempting nationalism on the part of non-Muslim subjects of those realms, and creating a legal and financial structure that would allow for economic stability and modernization, prevent further European encroachment and domination, and eventually create a public sphere where expert and popular consultation could be institutionalized. Thus, unlike in the case of European revolutions in 1789, 1830, 1848 and 1870, the first constitutions in the Muslim world were the products of efforts to stabilize and strengthen the existing state structure. As such, the defenses of constitutionalism and legal reform written by intellectuals during the nineteenth century were often modest, aiming mostly to defend limitations on traditional sovereign executives as compatible with the true commitments of Islam. The Persian constitutional revolution of 1906−11 was the great exception to this. There, high-ranking religious authorities (Grand Ayatollahs) were arrayed on both sides of the struggle, and the polemics produced in favor of and against a written constitution are some of the 59

60  Constitutions and religion most complex and sophisticated works of modern Islamic political thought. They prefigured not only the debates after the 1979 Islamic revolution in Iran, but also much twentieth century Sunni thought. After the First World War, there was a last gasp of calls for a restoration of a caliphate that would unite the Muslim world and a series of conferences that aimed to lay the groundwork for an elected caliphate. Some important works of political and constitutional theory emerged during the 1920s, including Rashīd Riḍā’s The Caliphate (al-Khilāfa) and the French doctoral dissertation of the outstanding Arab jurist of the twentieth century, Abd al-Razzāq al-Sanhūrī’s Le califat (only translated into Arabic in the 1980s). After this period, with the entrenchment of post-colonial nation states in some cases and continued European colonial occupation in others, the idea of an Islamic public law largely disappeared into irrelevance. It was restored not by elite jurists or legal scholars, but by the rise of political Islam as a mass movement. While the Egyptian Muslim Brotherhood is usually regarded as the first such organization, founded in 1928, it was in colonial India and then Pakistan that the popular demand for independence coincided with a founding political moment in which the Islamic identity of the state could not be ignored. The Islamic movement – led by Abū’l-Aʿlā Mawdūdī, as well as many of the leading religious scholars (ulamā) of the subcontinent – was successful in guaranteeing that the founding of Pakistan would include certain declarations of the Islamic character of the state, including the recognition of God as the true sovereign. After 1906–7 Persia, the 1949 Constitution of Pakistan is thus the first modern constitution with a distinctly Islamic character. Constitutions throughout the Muslim world gained an increasingly “Islamic” character throughout the second half of the twentieth century – sometimes at the moment of independence from colonial rule (Morocco); sometimes through revolution (Iran, Sudan); sometimes through political pressure on the state and the state’s strategic effort to coopt religious opposition (Egypt, Pakistan); and sometimes through elite bargaining after external “regime change” (Iraq, Afghanistan). A few common features characterize these constitutions. At the bare minimum, some constitutions declare Islam to be the religion of the state. Only a few Muslim majority states throughout the twentieth century did not have some form of this identification in their constitutions (e.g. Tunisia and Turkey). But the true hallmark of an “Islamic constitution” is an article declaring the obligation of the state to apply the Islamic sharīʿa. These “sharīʿa-guarantee” or “repugnancy” clauses differ from constitution to constitution in virtue of three features: (1) how they define the “sharīʿa”; (2) how they define the sharīʿa’s authority over the state’s positive law; and (3) whom they empower to adjudicate the harmony of sharīʿa and statutory law. Before turning to the deep theory of Islamic constitutionalism, consider the following paradigmatic modern Islamic constitutions: the Persian Constitution of 1906–7; the Pakistani Constitutions of 1949, 1956, 1973 and 1980; and the Egyptian Constitutions of 1971, 1980 and 2012.

2.

MODERN ISLAMIC CONSTITUTIONALISM IN PRACTICE

As noted briefly above, the Persian Constitution of 1906–7 came about as the result of a multi-year revolutionary process that divided the Shiʿite clerical class for the rest of the century. The original 1906 version created a National Consultative Assembly with expansive legislative powers. Articles 15–17 read:

The theoretical framework of modern Islamic constitutionalism  61 Art. 15. The National Consultative Assembly has the right in all questions to propose any measure which it regards as conducive to well-being of the Government and the People, after due discussion and deliberation thereof in all sincerity and truth; and, having due regard to the majority of votes, to submit such measure, in complete confidence and security, after it has received the approval of the Senate, by means of the First Minister of the State, so that may receive the Royal Approval and be duly carried out. Art. 16. All laws necessary to strengthen the foundations of the State and Throne and set in order the affairs of the Realm and the establishment of the Ministries, must be submitted for approval to the National Consultative Assembly. Art. 17. The National Consultative Assembly shall, when occasion arises, bring forward such measures as shall be necessary for the creation, modification, completion or abrogation of any Law, and, subject to the approval of the Senate, shall submit it for the Royal Sanction, so that due effect may thereafter be given to it.

After considerable conservative and clerical opposition, the 1907 Supplement to the Constitution revised the legislative powers of the National Consultative Assembly in a new Article 2: At no time must any legal enactment of the Sacred National Consultative Assembly, established by the favour and assistance of His Holiness the Imam of the Age (may God Hasten his glad Advent!), the favour of His Majesty the Shahinshah, of Islam (may God multiply the likes of them!), and the whole people of the Persian Nation, be at variance with the sacred rules of Islam or the laws established by His Holiness the Best of Mankind (on whom and on whose household be the Blessings of God and His Peace).

In order to guarantee the sharīʿa compatibility of all enacted laws, the same Article provided for a council of religious scholars to review legislation: It is hereby declared that, it is for the learned doctors of theology (the ʿulamāʾ) – may God prolong the blessing of their existence! – to determine whether such laws as may be proposed are or are not conformable to the rules of Islam; and it is therefore officially enacted that there shall at all times exist a committee composed of not less than five mujtahids [scholars of the highest rank] or other devout theologians, cognizant also of the requirements of the age.

Once constituted by the National Assembly with the advice and consent of the scholars, this committee would be authorized to: carefully discuss and consider all matters proposed in the Assembly, and reject and repudiate, wholly or in part, any such proposal which is at variance with the Sacred Laws of Islam, so that it shall not obtain the title of legality. In such matters the decision of this ecclesiastical committee shall be followed and obeyed and this article shall continue unchanged until the appearance of His Holiness the Proof of the Age (may God hasten his glad Advent!).1

The Iranian constitutional experiment was short-lived, although some of its innovations were to be resurrected in the post-revolutionary Constitution of the Islamic Republic of Iran. However, a few features of modern Islamic constitutionalism (in both Sunni and Shiʿite coun-

1 See the English translation of the 1906 and 1907 constitution at, for example, https://​fis​-iran​.org/​ en/​resources/​legaldoc/​iranconstitution, last accessed May 19, 2020.

62  Constitutions and religion tries) can be observed here. First, modern Islamic constitutional theory is an attempt to adapt the modern state to Islamic norms. As such, it begins with a commitment to some kind of representative, consultative body with some legislative and policy-making authority. Second, what makes this Islamic constitutional theory is the commitment to some form of authority for the sharīʿa. Third, the authority of the sharīʿa can range from a consultative role to outright sovereign superiority over any enacted positive law. Fourth, the meaning of the sharīʿa (“the sacred rules of Islam”) must be defined or some kind of body must be given the right to define it. Fifth, while the presumption (present in the 1907 Supplement) is that the custodians of the meaning and interpretation of the sharīʿa are the classically trained scholars of Islamic law, modern Islamic constitutional theory often divides that authority with other kinds of legal experts. For variation on these themes, consider the various iterations of the Pakistani Constitution. The 1949 “Objectives Resolution” issued at the birth of Pakistan declared that “Sovereignty belongs to Allah alone; but he has delegated it to the State of Pakistan through its people for being exercised within the limits prescribed by Him as a sacred trust;” but did not provide institutionally for any guarantee of the supremacy of the sharīʿa over any positive law. It was the 1956 Constitution that added Article 205(1): “no law shall be enacted which is repugnant to the Injunctions of Islam as laid down in the Holy Qurʾān and the Sunna.” But at this point, no institution was created to adjudicate this. The 1980 amendments to the Constitution created a Federal Shariat Court (FSC) with the powers: either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, to examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam.

But as noted above, the mere idea of sharīʿa-compatibility only opens up a series of more complex questions: what is meant by “the injunctions of Islam,” who defines it, and how the conflict between positive law and “the injunctions of Islam” is resolved. In the case of Pakistan, these questions are resolved in a number of fascinating ways. As to the composition of the FSC, it is composed of eight judges – all appointed by the president, but only three of whom are required to be traditionally trained Islamic scholars (ʿulamāʾ). So, an important feature of much modern Islamic constitutional practice is that the authority to speak in the name of the divine law is not monopolized by religious scholars, and those religious scholars who are appointed are chosen by the (“secular”) political authority rather than on the basis of their own epistemic claims. This is one reason why it has been argued this form of what has been referred to as “constitutional theocracy”2 is seen as less a way of asserting religious authority over law and more as a way of domesticating and constraining religious law. While the paradigmatic feature of Islamic constitutions is some form of “downstream” review of legislation, another important Pakistani constitutional innovation is the creation of an institution to reform legal codes to bring them into conformity with the sharīʿa at the legislative stage. Founded in 1962, the Council of Islamic Ideology is assigned by the Art. 230 of the constitution the follow powers:



2

Ran Hirschl, Constitutional Theocracy (2010).

The theoretical framework of modern Islamic constitutionalism  63 (a) to make recommendations to [Parliament] and the Provincial Assemblies as to the ways and means of enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in all respects in accordance with the principles and concepts of Islam as enunciated in the Holy Quran and Sunnah; (b) to advise a House, a Provincial Assembly, the President or a Governor on any question referred to the Council as to whether a proposed law is or is not repugnant to the Injunctions of Islam; (c) to make recommendations as to the measures for bringing existing laws into conformity with the Injunctions of Islam and the stages by which such measures should be brought into effect; and (d) to compile in a suitable form, for the guidance of [Parliament] and the Provincial Assemblies, such Injunctions of Islam as can be given legislative effect.

Finally, consider the various constitutional reforms in Egypt in 1971, 1980 and 2012. The 1971 Constitution introduced an Article 2, declaring that “the principles of the Islamic sharīʿa are a principal source of legislation,” which was amended in 1980 to read “the principles of the Islamic sharīʿa are the principal source of legislation” for Egypt. This language reveals at least two core questions about Islamic constitutionalism: is the sharīʿa one among many sources, or the primary and sovereign source; and what aspects of the “Islamic sharīʿa” have this status – the principles, traditional rulings or something else? One possibility is for the constitution itself to answer these questions. Instead, the pre-2012 Egyptian constitution assigned this interpretive task entirely to a Supreme Constitutional Court (SCC), comprised entirely of judges appointed by the president. Thus, we see that “Islamic constitutionalism” in Egypt represents an even further twist in the direction of ultimate “secular” (or at least political) control over the meaning of sharīʿa. Whether laws are constitutional in the sense of being sufficiency based on the sharīʿa is a question that is decided by judges trained not in al-Azhar, but in modern, “secular” universities. Accordingly, the entire question of what it means for laws to have the sharīʿa as their primary source is decided by judges who may have a range of political motivations, epistemic qualifications and ethical sensibilities. Of course, this is also true about so-called “religious” authorities – whether traditionally trained scholars or independent activists or intellectuals. But it is nonetheless noteworthy within the theory of Islamic constitutionalism to assign the definition and adjudication of sharīʿa compatibility to judges with no pretense to traditional religious knowledge. The jurisprudence developed by these judges for evaluating has thus received considerable academic attention.3 The short-lived 2012 Constitution, drafted by a constituent assembly dominated by Islamists, revised the place of sharīʿa in a few crucial ways. Article 2 was left in place according to the 1980 formulation, but two new articles were added. A new Article 4 read in part: Al-Azhar’s Body of Senior Scholars is to be consulted in matters pertaining to the Islamic sharīʿa. The state guarantees the financial means needed to fulfill these tasks. The Sheikh of al-Azhar is independent and cannot be dismissed from his position. The law determines the process by which he is selected from among the members of the Body of Senior Scholars.

But the more ambitious addition was found in Article 219. Where previous constitutions referred to the “principles of the Islamic sharīʿa” as the principal source of legislation, but left the definition of those principles and their being the “source” of law to the SCC, the 2012 Constitution made an effort to remove some of that judicial prerogative: “The principles of See Clark Lombardi, State Law as Islamic Law Sharīʿa into Egyptian Constitutional Law (2006).

3

the

in

Modern Egypt: The Incorporation

of

64  Constitutions and religion the Islamic sharīʿa include general evidence, the foundational principles of Islamic jurisprudence (uṣūl al-fiqh), and the reliable sources from among the Sunni legal schools of thought.” Had a new government remained in power long enough to change the composition of the SCC, new custodians of the idea of sharīʿa compatibility, alongside these new constitutional provisions, would certainly have led to quite different jurisprudence on the relationship between positive law and sharīʿa. In practice, before the July 2013 military coup, the Muslim Brotherhood-dominated government raised only one legal issue that involved consulting with al-Azhar religious scholars and grappling with the question of sharīʿa as positive law: the issue of government-issued bonds (sukūk) crafted to be compatible with Islamic finance rules.4

3.

MODERN ISLAMIC CONSTITUTIONAL THEORY

During this period, there was not only lots of constitutional law (particularly in Egypt and Pakistan), but also a voluminous discourse of constitutional theory that cumulatively created an ideal of a modern Islamic constitutional state (an Islamic rechtstaat) that exists nowhere exactly in reality. Some of the constitutional features introduced in the previous section (especially the idea of some form of sharīʿa supremacy over positive law) reflect this ideal constitutional theory. But modern Islamic constitutional theory itself does not, for the most part, take its bearings from the constitutional experiences of modern Muslim-majority states. This chapter seeks to summarize and comment on this modern Islamic constitutional theory. Where is Islamic constitutional theory found? While Islamic empires did not tend to pass down written covenants between rulers and the ruled, Sunni scholars developed a rich tradition of thinking about “the rules of governance” (al-aḥkām al-sulṭāniyya) and “religiously-legitimate governance” (al-siyāsa al-sharʿiyya). Many of the core themes at the heart of constitutionalism are all to be found in these texts – even if their institutionalization was often less developed than in their counterparts in medieval and early-modern European monarchies. Such themes include the source of a ruler’s authority; the fixed duties and obligations of a ruler; the limits on a ruler’s authority and the grounds for removing him; and the other authorities that the ruler must share power with. This tradition informed much of the nineteenth-century writing on constitutionalism and the rule of law. Such texts include the introduction to the multivolume history of Tunisia by the bureaucrat-historian Aḥmad Ibn Abī al-Ḍiyāf (Bin Ḍiyāf; 1804–74) Itḥāf ahl al-zamān bi-akhbār mulūk Tūnis wa-ʿahd al-amān; Khayr al-Dīn Pasha’s (c. 1820–90) Introduction (Muqaddimah) to his study Aqwam al-masālik fī maʿrifat aḥwāl al-mamālik (The Surest Path to Knowledge of the Conditions of States) (1867); the articles published by the activist Namık Kemal (1840–88) in the newspapers founded by the Young Ottomans (particularly Ḥürriyet and İbret); as well as various writings on the need for political and intellectual reform by such figures as Rifāʿa al-Ṭahṭāwī (1801–73), ʿAbd al-Raḥmān al-Kawākibī (1855–1902) and Muḥammad ʿAbduh (1849–1905). While many of these offered strong and persuasive defenses of the need for limited rule on religious grounds, and some even anticipated radical arguments for popular sovereignty (Kemal and Kawākibī in particular), these were not tech4 See, for example, Ahmed Lofty, Egypt amending sovereign sukuk bill after controversy, Reuters (January 15, 2013), www​.reuters​.com/​article/​egypt​-sukuk​-controversy​-idUSL6N0AK9J920130115, last accessed May 19, 2020.

The theoretical framework of modern Islamic constitutionalism  65 nical studies of constitutional law – or even ambitious treatises on the theological foundations and purposes of political power. A second discourse of Islamic constitutional theorizing was the period right after the Second World War. Two events in this period can be identified as particularly important in sparking an intense debate around the meaning of the Caliphate, one political and one intellectual. The political event is the abolition of the caliphate by the Turkish National Assembly on March 4, 1924 (although the sultanate had been abolished and the last sultan, Mehmet VI, had departed, in November 1922). The intellectual event is the 1925 publication of al-Azhar-trained scholar ʿAlī ʿAbd al-Rāziq’s al-Islām wa uṣūl al-ḥukm: Baḥth fī’l-khilāfa wa’l-ḥūkuma fi’l-Islām (Islam and the Foundations of Governance: A Study of the Caliphate and Government in Islam), which claimed that the Prophet Muḥammad had only been sent as a religious messenger to the world and did not reveal a political doctrine, and thus called for a strict removal of religious claims from political life. It is thus in the 1920s that we begin to see the first emergence of works forced to defend Islam’s claim to priority over the political sphere (at this stage still by defending the obligatoriness of the office of the caliphate), and to begin to elaborate the balance between divine and popular sovereignty. Of particular interest here are Rashīd Riḍā’s al-Khilāfa;5 the critiques of ʿAbd al-Rāziq’s treatise by al-Ahzar scholars Muḥammad al-Khiḍr Husayn (Naqḍ Kitāb al-Islām wa uṣūl al-ḥukm6) and Muḥammad Bakhīt al-Muṭīʿī (Ḥaqīqat al-Islām wa uṣūl al-ḥukm);7 and the (French) doctoral thesis of the great Egyptian jurist ʿAbd al-Razzāq al-Sanhūrī, Le califat (later translated into Arabic as Fiqh al-khilāfa). These debates immediately preceded the founding of the Muslim Brotherhood by Ḥasan al-Bannā in 1928 and the birth of political Islam as an oppositional movement. But while Bannā did author some lectures on politics and basic constitutional principles,8 arguably the most important early statements of Islamic constitutional theory came not from Egypt, but from South Asia. Abu’l-Aʿlā Mawdūdī gave a lecture on “The Political Theory of Islam” as early as 1939, in which he outlined basic principles of a renewed Islamic constitutional theory and authored more elaborate accounts of constitutional principles in the period after the founding of Pakistan during the debates surrounding the first post-independence Pakistani constituent assembly. Some of these lectures and articles from the 1949–53 period were gathered into a volume entitled Islamic Law and Constitution. In them, Mawdūdī articulates certain principles than can be said to characterize much Islamic constitutional thinking for the next decades. But during the period from the 1950s to the 2011 Arab Spring, the discourse on Islamic constitutional theory became a lot more academic and technically sophisticated. This discourse takes a variety of forms and is elaborated through different genres of writing. Some

Muḥammad Rashīd Riḍā, al-Khilāfa (Cairo: al-Zahrāʾ li’l-iʿlām al-ʿarabī, 1988 [1922]). Edited and reprinted in Muḥammad ʿImāra, Maʿrakat al-Islām wa uṣūl al-ḥukm (Cairo: Dār al-Shurūq, 1989), along with a number of primary source texts related to the controversy surrounding the publication of ʿAbd al-Rāziq’s manifesto, including an extract from al-Islām wa uṣūl al-ḥukm and other articles by ʿAbd al-Rāziq defending his views, proceedings from the hearing held by the Committee of Senior Scholars (Hayʾat kibār al-ʿulamāʾ) and their verdict condemning the book and stripping him of his title of “Islamic scholar.” 7 Muḥammad Bakhīt al-Muṭīʿī, Ḥaqīqat al-Islām wa uṣūl al-ḥukm (Cairo: al-Maṭbaʿa al-Salafiyya [1925]). 8 See, for example, his essay “Niẓām al-ḥukm” in Ḥasan al-Bannā, Majmūʿ rasāʾil al-Imām al-shahīd Ḥasan al-Bannā (Cairo: al-Maktaba al-Tawfīqiyya, n.d.). 5 6

66  Constitutions and religion influential mid-century works attempted to bring the classical theory of “religiously-legitimate governance” (siyāsa sharʿiyya) up to date with modern concerns, the pioneering works being those of ʿAbd al-Wahhāb Khallāf (d. 1956)9 and Muḥammad Ḍiyā al-Dīn al-Rayyis.10 Prominent Egyptian jurist and legal scholar Aḥmad Kamāl Abū al-Majd’s 1962 lectures on “constitutional jurisprudence” (fiqh dustūrī)11 are not the first effort to treat Islamic constitutionalism in comparative terms (as we saw with Sanhūrī’s Le califat) or address the question of an ideal Islamic state’s relationship to democracy;12 but are nonetheless often treated in the subsequent literature as a starting point and touchstone for treating the quest for an “Islamic state” as a matter of technical, constitutional law. The concern to distance the idea of an Islamic state from associations with tyranny and totalitarianism – not only by portraying it as regulated by law and responsible to the people, but also as safeguarding “civil freedom” or “public liberties” – also began fairly early.13 By now, this literature includes dozens (if not hundreds) of scholarly monographs on Islamic constitutional jurisprudence (fiqh dustūrī) in a comparative framework,14 “the principles of government” (uṣūl al-ḥukm) or “system of government” (niẓām al-ḥukm) in Islam,15 as well as some that continue to frame the inquiry

9 ʿAbd al-Wahhāb Khallāf, al-Siyāsa al-sharʿiyya fi’l-shuʾūn al-dustūriyya wa’l-khārijiyya wa’l-māliyyah (Cairo: Dār al-Anṣār, 1977). 10 Muḥammad Ḍiyā al-Dīn al-Rayyis, Naẓariyyāt al-siyāsiyya al-Islāmiyya (Cairo: Dar al-Turath, [1952] 1979). 11 Aḥmad Kamāl Abū al-Majd, Naẓarāt ḥawla al-fiqh al-dustūrī fī al-Islām (Cairo: Maṭbaʿat al-Azhar, 1962). 12 ʿAbbās Maḥmūd ʿAqqād, al-Dīmuqrāṭiyya fī al-Islām (Cairo: Dār al-Maʿārif, 1952). 13 See, for example, ʿAlī ʿAbd al-Wāḥid Wāfī, al-Ḥurriyya al-madaniyya fi’l-Islām: muḥāḍarāt li-ʿAlī ʿAbd al-Wāḥid Wāfī (Umm Durmān: Jāmiʿat Umm Durmān al-Islāmiyya, 1967) and ʿAbd al-Ḥakīm Ḥasan al-ʿAylī, al-Ḥurriyyāt al-ʿāmma fi’l-fikr wa’l-niẓām al-siyāsī fi’l-Islām: dirāsa muqārana (Cairo: Dār al-Fikr al-ʿArabī, 1974); Ṣubḥī ʿAbduh Saʿīd, al-Sulṭa wa’l-ḥurrīya fi’l-niẓām al-Islāmī: dirāsa muqārana (Cairo: Dār al-Fikr al-ʿArabī, 1982). The text of ʿAbd al-Ḥakīm Ḥasan al-ʿAylī is particularly widely cited in subsequent literature. 14 See, for example, Ḥāzim ʿAbd al-Mutaʿāl al-Ṣaʿīdī, al-Naẓariyya al-Islāmiyya fi’l-dawla: maʿa al-muqārana bi-naẓariyyat al-dawla fi’l-fiqh al-dustūrī al-ḥadīth (Cairo: Dār al-Nahḍah al-ʻArabiyyah, 1986); Fatḥī Waḥīdī, al-Fiqh al-siyāsī wa’l-dustūrī fi’l-Islām: dirāsa muqārana fī maṣādir al-niẓām al-dustūrī wa naẓariyyat al-siyāda wa tanẓīm al-dawla wa bayān ḥuqūq wa ḥurriyyāt al-insān wa-ḍamānāt taṭbīqihā fi’l-wathāʾiq al-dawliyyah wa’l-niẓām al-Islāmī (Gaza: Maṭābiʿ al-Hayʾa al-Khayriyya bi-Qiṭāʿ Ghazza, 1988); al-Sayyid Khalīl Haykal, Mawqif al-fiqh al-dustūrī al-taqlīdī wa’l-fiqh al-Islāmī min bināʾ wa tanẓīm al-dawla (Cairo: Dār al-Nahḍa al-ʿArabiyya, 1989); Muḥammad Kāẓim Muṣṭafawī, Naẓariyyāt al-ḥukm wa’l-dawla: dirāsa muqārana bayna al-fiqh al-Islāmī wa’l-qānūn al-dustūrī al-waḍʿī (Beirut: Maʿhad al-Rasūl al-Akram li’l-Sharīʿā wa’l-Dirasāt al-Islāmiyyah, 2002); Vazū Muḥammad Aklī, Durūs fi’l-fiqh al-dustūrī wa’l-nuẓum al-siyāsiyya: dirāsa muqārana (Algiers: Dār al-Khaldūniyya li’l-nashr wa’l-tawzīʿ, 2003); Aḥmad Muḥammad Amīn, al-Dawla al-Islāmiyya wa’l-mabādiʾ al-dustūriyya al-ḥadītha: dirāsah li-ahamm mabādiʾ al-dīmuqrāṭiyya al-gharbiyya fī ḍawʾ aḥkām al-sharīʿa al-Islāmiyya (Maktabat al-Shurūq al-Dawliyya, 2005); Ibrāhīm ʿAbd Allāh Ibrāhīm Ḥusayn, al-Iltizāmat al-siyāsiyya li’l-ḥākim wa’l-maḥkūm fi’l-nuẓum al-siyāsiyya wa’l-qānūn al-dustūri: dirāsa muqārana maʿa al-fiqh al-Islāmī (Cairo: Dār al-Nahḍa al-ʿArabiyya, 2009); Muḥammad Ismāʿīl Muḥammad Mashʿal, al-Ḍawābiṭ al-munaẓẓimah li’l-siyāsa al-sharʿiyyah fi’l-qānūn al-idārī wa’l-dustūrī wa’l-fiqh al-Islāmī: dirāsa muqārana (Alexandria: Maktabat al-Wafāʾ al-Qānūnīyah, 2013). 15 Muḥammad Yūsuf Mūsā, Niẓām al-ḥukm fī al-Islām (Cairo: Dār al-Maʿrifa, 1964); ʿAlī ʿAlī Manṣūr, Nuẓum al-ḥukm wa’l-idāra fi’l-sharīʿa al-Islāmiyya wa’l-qawānīn al-waḍʿiyya: muqāranāt bayna al-sharīʿa wa-al-qānūnayn al-dustūrī wa-al-idārī (Cairo: Maṭbaʿat Mukhaymar, 1965); ʿAbd al-Ḥamīd al-Mutawallī, Mabādiʾ niẓām al-ḥukm fi’l-Islām (Alexandria, Egypt: Manshaʾat al-Maʻārif,

The theoretical framework of modern Islamic constitutionalism  67 in terms of “religiously legitimate governance” (siyāsa sharʿiyya)16 or even the caliphate,17 written by professional academics, many of them in “secular” universities.18 One sophisticated recent work even frames the study of comparative constitutional law around the concept of constituent power.19 Alongside this technical academic literature on Islamic constitutional law lies the discourse developed by Islamist public intellectuals since the 1970s. Many thinkers, from a variety of intellectual backgrounds (some lay, some with scholarly credentials), have written treatises on the kind of Islamic state Islamists should be striving for. These include activist intellectuals such as Ḥasan al-Turābī,20 Yūsuf al-Qaraḍāwī,21 and Rāshid al-Ghannūshī.22 This set might also include treatises written by independent intellectuals sympathetic to political Islam, such as Muhammad Asad,23 Faḥmī Huwaydī,24 Muḥammad ʿImāra,25 Muḥammad Salīm

1966); Ṣubḥī ʿAbduh Saʿīd, al-Ḥākim wa uṣūl al-ḥukm fi’l-niẓām al-Islāmī: al-siyāsī wa’l-iqtiṣādī wa’l-ijtimāʿī wa’l-fikrī (Cairo: Dār al-Fikr al-ʿArabī, 1985); Ḥusayn Fawzī al-Najjār, al-Islām wa’l-siyāsa: baḥth fī uṣūl al-naẓariyya al-siyāsiyya wa-niẓām al-ḥukm fi’l-Islām (Cairo: Dār al-shaʿb, 1977);ʿAbd al-Hādī Bū Ṭālib, al-Ḥukm wa’l-sulṭa wa’l-dawla fi’l-Islām (Casablanca: Munaẓẓamat al-Muʾtamar al-Islāmī, 1988: 1988); Maḥmūd ʿAbd al-Majīd Khālidī, al-Islām wa uṣūl al-ḥukm (Irbid: ʿĀlam al-kutub al-ḥadīth, 2005). 16 Muḥammad Yusrī Ibrāhīm, al-Mushārakāt al-siyāsiyya al-muʿāṣira fī ḍawʾ al-siyāsa al-sharʿiyya (Cairo: Dār al-Yusr, 2011). 17 Muḥammad Ḍiyā al-Dīn al-Rayyis, al-Islām wa’l-khilāfa fi’l-ʿaṣr al-ḥadīth (Cairo: Manshūrāt al-ʿAṣr al-Ḥadīth, 1973); ʿAbd al-Karīm al-Khaṭīb, al-Khilāfa wa’l-imāma: diyānatan … wa-siyāsatan: dirāsa muqārana li’l-ḥukm wa’l-ḥukūma fī’l-Islām (Cairo: Dār al-Fikr al-ʿArabī, [1963]), Ṣalāḥ al-Dīn Dabbūs, al-Khalīfa: tawliyatuhu wa ʿazluh, ishām fī’l-naẓariyya al-dustūriyya al-Islāmiyya; dirāsa muqārana bi’l-nuẓum al-gharbīyya (Alexandria: Muʾassasat al-Thaqāfa al-Jāmʿiyya, [1972]); Ṣādiq Shāyif Nuʿmān, al-Khilāfa al-Islāmiyya wa qaḍīyat al-ḥukm bi-mā anzala Allāh (Cairo: Dār al-Salām, 2004). 18 Although the “Draft Islamic Constitution” drawn up by al-Azhar’s Academy for Islamic Research in 1977 to be made “available to any country that wishes to model itself after the Islamic sharīʿa” also deserves mention in this context. Both English and Arabic copies can be found at www​.tahrirdocuments​ .org/​2011/​07/​the​-project​-for​-an​-islamic​-constitution​-the​-distinguished​-al​-azhar​-academy​-for​-islamic​ -research/​, last accessed May 19, 2020. An English translation can also be accessed at https://​papers​.ssrn​ .com/​sol3/​papers​.cfm​?abstract​_id​=​2437590, last accessed May 19, 2020. 19 ʿAbd al-Majīd Ḥammādī ʿĪsāwī, al-Sulṭa al-taʾsīsiyya fi’l-qānūn al-dustūrī al-waḍʿī wa’l-fiqh al-dustūrī al-Islām: dirāsa muqārana (Cairo: Dār al-fikr al-ʿArabī, 2015). 20 Ḥasan al-Turābī, al-Siyāsa wa’l-ḥukm: al-nuẓum al-sulṭāniyya bayna al-uṣūl wa sunan al-wāqiʿ (Beirut: Dār al-Sāqī). 21 Yūsuf al-Qaraḍāwī, Fiqh al-dawla fi’l-Islām: makānatuhā – maʿālimuhā – ṭabīʿatuhā, mawqifuhā min al-dīmuqrāṭiyya wa’l-taʿāddudiyya wa’l-marʾa wa ghayr al-Muslimīn (Cairo: Dār al-Shurūq, 1997); al-Siyāsa al-sharʿiyya fī ḍawʾ nuṣūṣ al-sharīʿa wa maqāṣiduhā (Cairo: Maktabat Wahbah, 1998); and many of the fatwas from his Fatāwā muʿāṣira. 22 Rāshid al-Ghannūshī, Al-Ḥurriyyāt al-ʿāmma fi’l-dawla al-Islāmiyya (Beirut: Markaz Dirāsāt al-Wiḥdah al-ʿArabiyya, 1993). 23 Muhammad Asad, The Principles of State and Government in Islam (1980). 24 Faḥmī Huwaydī, al-Islām wa’l-dīmuqrāṭiyya (Cairo: Markaz al-Ahrām li’l-Tarjama wa’l-Nashr, Muʾassasat al-Ahrām, 1993). 25 Muḥammad ʿImāra, al-Islām wa falsafat al-ḥukm (Cairo: Dār al-Shurūq, 1989); al-Islām wa’l-siyāsa: al-radd ʿalā shubuhāt al-ʿalmāniyyīn (Cairo: Dār al-Tawzīʿ wa’l-Nashr al-Islāmīyyah, 1993).

68  Constitutions and religion al-ʿAwwa26 and Ṭāriq al-Bishrī27 (although here the overlap with strictly academic literature must be acknowledged: many of these more prominent Islamist public intellectuals have held legal academic positions and many of the lesser known scholars hold Islamist sympathies or inclinations). This discourse is also represented in some of the public pamphlets, communiques, platforms and essays issued officially by Islamist groups.28 This is a vast and diverse body of writing and discourse. However, it is possible to summarize some points of general consensus that together form a kind of modal modern Islamic constitutional theory. Governance itself (ḥukm) is a necessary condition for mankind, and this can be known through both reason and revelation. In other words, whatever freedom humans in general, and the Muslim umma in particular, have to extend and revoke authorization for rulers, they are not free to choose not to be governed at all.29 The Muslim umma pre-exists any particular political regime or contract of rulership, and so paradoxes familiar to Western philosophical treatments of the authority of a people to authorize government before it has actually formed itself as a people are less salient.30 The umma is almost always portrayed as the “source of all political authorities” (maṣdar al-suluṭāt).31 Most Islamic constitutional theorists will refer to the “sovereignty of the people” (siyādat al-umma or siyādat al-shaʿb) or to the people as the “source of sovereignty” (maṣdar al-siyāda) on the basis of it being the source of the legitimacy of all political authorities and having effective rights of appointment, supervision and removal over the government.32 Moreover, the grounding of the umma’s status as the source of political legitimacy on its collective status as God’s caliph, entrusted by God with the execution of law and political

26 Muḥammad Salīm al-ʿAwwa, Fi’l-niẓām al-siyāsī li’l-dawla al-Islāmiyya (Cairo: al-Maktab al-Miṣrī al-Ḥadīth, 1983) and al-Niẓām al-siyāsī fi’l-Islām (Beirut: Dār al-Fikr al-Muʻāṣir, 2004). 27 Ṭariq al-Bishrī, Dirāsāt fi’l-Dimuqrāṭiyya al-Miṣriyya (Cairo: Dar al-Shurūq, 1987); al-Waḍʿ al-qānūnī al-muʿāṣir bayna al-sharīʿa al-Islāmiyya wa’l-qānūn al-waḍʿī (Cairo: Dar al-Shurūq, 2003). 28 Particularly noteworthy here are the Egyptian Muslim Brotherhood’s 2004 “Reform Initiative” (Mubādirat al-Ikhwān al-Muslimīn ḥawwal mabādiʾ al-iṣlāḥ fī Miṣr) and 2005 electoral platform, which are widely understood to be popularized distillations of the ideas introduced by many of the preceding figures, particularly Abū al-Majd, al-Shāwī, Qaraḍāwī, al-ʿAwwa, Huwaydī, ʿImāra, and al-Bishrī (see Bruce Rutherford, Egypt after Mubarak 101–08 (2008)). In 2004 the Syrian Muslim Brotherhood released a much more extensive “Political Program for a Future Syria” (al-Mashrūʿ al-siyāsī li’l-Sūriyat al-mustaqbal). 29 al-Rayyis, Naẓariyyāt al-siyāsiyya al-Islāmiyya; Mūsā, Niẓām al-ḥukm fī al-Islām, p. 5; al-ʿAwwa, Fi’l-niẓām al-siyāsī li’l-dawla al-Islāmiyya, p. 133; ʿImāra, al-Islām wa falsafat al-ḥukm, p. 422; ʿImāra, al-Islām wa’l-siyāsa, p. 40; Saʿīd, al-Ḥākim wa uṣūl al-ḥukm fi’l-niẓām al-Islāmī. 30 al-Rayyis, Naẓariyyāt al-siyāsiyya al-Islāmiyya; Abū al-Majd, Naẓarāt ḥawla al-fiqh al-dustūrī fī al-Islām, p. 13; Huwaydī, al-Islām wa’l-dīmuqrāṭiyya, pp. 105–07, 126. 31 Khallāf, al-Siyāsa al-sharʿiyya; ʿAqqād, al-Dīmuqrāṭiyya fī al-Islām, p. 175; Abū al-Majd, Naẓarāt ḥawla al-fiqh al-dustūrī fī al-Islām, p. 14; Mūsā, Niẓām al-ḥukm fī al-Islām, p. 100. 32 ʿAqqād, al-Dīmuqrāṭiyya fī al-Islām, p.  64; Abū al-Majd, Naẓarāt ḥawla al-fiqh al-dustūrī fī al-Islām, p. 21; al-Azhar Draft Islamic Constitution (Art. 16); al-ʿAwwa, Fi’l-niẓām al-siyāsī li’l-dawla al-Islāmiyya, p.  251; Ṣaʿīdī, al-Naẓariyya al-Islāmiyya fi’l-dawla, pp.  282–83; Saʿīd, al-Ḥākim wa uṣūl al-ḥukm fi’l-niẓām al-Islāmī; ʿImāra, al-Islām wa’l-siyāsa, pp.  71–72; Huwaydī, al-Islām wa’l-dīmuqrāṭiyya, pp. 103, 114, 185; Waḥīdī, al-Fiqh al-siyāsī wa’l-dustūrī fi’l-Islām, p. 36–37; ʿĪsāwī, al-Sulṭa al-taʾsīsiyya, pp. 233–36, 240–44.

The theoretical framework of modern Islamic constitutionalism  69 power on Earth, has become essentially canonical. The doctrine of the caliphate of man is an almost ubiquitous trope in contemporary Islamic political and constitutional theory.33 Whatever the status of a particular executive office (e.g. the caliphate, sultanate or simply public authority (wilāya ʿāmma) as such), the holder of the office is seen by Sunnis as a legally constrained and accountable officer or civil servant. It is a ubiquitous theme in Islamic constitutional theory that government is a form of contract, and the ruler is an agent (or even servant) of the people chosen by some form of consultation among the people or its representatives. It follows that the ruler is constrained by law and is accountable to the people (or their representatives), and subject to removal when his violation of his duties exceeds certain boundaries.34 Government in general is characterized first and foremost as the application of a pre-existing law, the sharīʿa. The social contract between the ruler and the ruled is largely seen as a pact between a principal (the umma) and an agent (the ruler) for the latter to execute the former’s divinely imposed obligation to implement divine law in the world. Thus, the law is portrayed as largely pre-existing the political sphere and there to be discovered more than made, particularly through an independent judiciary.35 In constitutional terms, since the sharīʿa is declared to be the supreme law and the source of all legislation, there are certain ordained limits on the legislative authority of any state office or institution.36 This principle also implies limitations on the sovereignty of the people itself, which is not free to violate God’s law and its moral commands. This is the most commonly cited difference between Islamic and “Western” democratic theory by thinkers who wish to assert some kind of democracy within Islam, and who frequently see non-Islamic democratic theory as resting on a completely limitless (and thus amoral) popular sovereignty.37 It is very frequent for theorists to describe sovereignty in Islamic political theory as “dual”: divided between God and the people, but never the rulers, who are mere agents assigned the administration of government.38

33 Abū al-Majd, Naẓarāt ḥawla al-fiqh al-dustūrī fī al-Islām, p.  22; ʿImāra, al-Islām wa’l-siyāsa, pp.  13, 18, 21–24, 27–29, 36–37, 144, 211; Huwaydī, al-Islām wa’l-dīmuqrāṭiyya, p.  200; ʿĪsāwī, al-Sulṭa al-taʾsīsiyya, p. 207. 34 ʿAqqād, al-Dīmuqrāṭiyya fī al-Islām, p.  64; Abū al-Majd, Naẓarāt ḥawla al-fiqh al-dustūrī fī al-Islām, pp. 15–17; al-Azhar Draft Islamic Constitution (Arts. 4, 46); al-ʿAwwa, Fi’l-niẓām al-siyāsī li’l-dawla al-Islāmiyya, pp. 87, 126, 153, 248–52; al-Ṣaʿīdī, al-Naẓariyya al-Islāmiyya fi’l-dawla, p. 163; Waḥīdī, al-Fiqh al-siyāsī wa’l-dustūrī fi’l-Islām, p. 69, 247–48; ʿImāra, al-Islām wa falsafat al-ḥukm, pp.  423, 472; ʿImāra, al-Islām wa’l-siyāsa, pp.  31–32, 46–47; Huwaydī, al-Islām wa’l-dīmuqrāṭiyya, pp. 104, 118–20, 134–41; ʿĪsāwī, al-Sulṭa al-taʾsīsiyya, p. 206. The right of the people to choose its rulers through some form of consultation is even enshrined as an “Islamic human right” (“Cairo Declaration of Human Rights in Islam” (1990), http://​hrlibrary​.umn​.edu/​instree/​cairodeclaration​.html, last accessed May 19, 2020). 35 ʿAqqād, al-Dīmuqrāṭiyya fī al-Islām, pp. 114–16; al-Azhar Draft Islamic Constitution (Art. 61); al-ʿAwwa, Fi’l-niẓām al-siyāsī li’l-dawla al-Islāmiyya, p. 127; ʿImāra, al-Islām wa’l-siyāsa, p. 40–41; Waḥīdī, al-Fiqh al-siyāsī wa’l-dustūrī fi’l-Islām, p. 37; Huwaydī, al-Islām wa’l-dīmuqrāṭiyya, p. 143. 36 Abū al-Majd, Naẓarāt ḥawla al-fiqh al-dustūrī fī al-Islām, p. 26; al-Azhar Draft Islamic Constitution (Art. 2); al-ʿAwwa, Fi’l-niẓām al-siyāsī li’l-dawla al-Islāmiyya, p.  144–46; Huwaydī, al-Islām wa’l-dīmuqrāṭiyya, pp. 113, 143, 186. 37 Abū al-Majd, Naẓarāt ḥawla al-fiqh al-dustūrī fī al-Islām, pp.  25–26; al-ʿAwwa, Fi’l-niẓām al-siyāsī li’l-dawla al-Islāmiyya, pp.  141, 152–53; ʿImāra, al-Islām wa falsafat al-ḥukm, pp. 428–29; ʿImāra, al-Islām wa’l-siyāsa, p. 21, 33–37; Huwaydī, al-Islām wa’l-dīmuqrāṭiyya, pp. 127, 143–44, 186. 38 al-Rayyis, Naẓariyyāt al-siyāsiyya al-Islāmiyya; Abū al-Majd, Naẓarāt ḥawla al-fiqh al-dustūrī fī al-Islām, pp. 27–8; Amīn, al-Dawla al-Islāmiyya wa’l-mabādiʾ al-dustūriyya al-ḥadītha, pp. 32–35;

70  Constitutions and religion Of course, no one holds that the sharīʿa has legislated fixed and unalterable pre-existing rules for every conceivable area of social life. The task of government is not only to apply the law that the jurists discover (fiqh law), but also to issue policy and administrative directives in areas left over or intended to be flexible. Thus, (modern) Islamic constitutional theory explicitly anticipates a realm of lawmaking that is distinct from law derived from classical fiqh, including in the area of constitutional design itself. Almost always, this kind of lawmaking is framed in terms of the Qurʾanic concept of “consultation” (shūrā).39 But such laws are not legislated without limitations. They must aim at the welfare of the umma (maṣlaḥa ʿāmma), and they must not violate the sharīʿa. Thus, a major theme in modern Islamic constitutional theory is the idea that all laws made and enforced by a state must be either compatible with the sharīʿa or otherwise not repugnant to it.40 Modern Islamic constitutional theory stresses the participatory role of the umma not only in electing and appointing the government, but also in whatever process is imagined for institutionalizing shūrā and policy-oriented lawmaking.41 Finally, an important feature of modern Islamic constitutional theory is that constitutions are often used as important sites for declaring ideologically transformative goals within society. In addition to the symbolic declaration of the sharīʿa as the source of all legislation, moral goals related to the family, social solidarity, religious education, social welfare, public dress and modesty, and the ethical conduct of politics are often articulated as constitutional obligations of an Islamic state.42 Thus, the aspects of constitutionalism that are more or less subject to agreement in modern Sunni Islamic thought are that the people are, broadly speaking, the source or origin of the legitimacy of political institutions; can elect and supervise political officers; and can participate in various forms of consultation and lawmaking. Similarly, it is broadly agreed that elected rulers are agents or civil servants subject to the law and limited in their authority; and that all laws and enactments are subject to some kind of sharīʿa review. This is what is meant when some contemporary Islamic constitutional theorists claim that the state in Islam is neither theocratic nor fully secular, but rather a “civil state.” But any scheme that is capable of garnering so much agreement across the full ideological spectrum of modern Islamic thought must be masking some significant ambiguities. The points of disagreement and debate within modern Islamic constitutional theory include the following.

ʿImāra, al-Islām wa’l-siyāsa, p.  159; Huwaydī, al-Islām wa’l-dīmuqrāṭiyya, p, 128; Waḥīdī, al-Fiqh al-siyāsī wa’l-dustūrī fi’l-Islām, pp. 42–49. 39 ʿAqqād, al-Dīmuqrāṭiyya fī al-Islām, p.  43; Abū al-Majd, Naẓarāt ḥawla al-fiqh al-dustūrī fī al-Islām, p.  18; al-Azhar Draft Islamic Constitution (Arts. 83–84); al-ʿAwwa, Fi’l-niẓām al-siyāsī li’l-dawla al-Islāmiyya, pp.  160–61, 191–98, 209–12; Huwaydī, al-Islām wa’l-dīmuqrāṭiyya, p. 208; ʿĪsāwī, al-Sulṭa al-taʾsīsiyya, p. 264–69. 40 al-ʿAwwa, Fi’l-niẓām al-siyāsī li’l-dawla al-Islāmiyya, p.  148–49; al-Ṣaʿīdī, al-Naẓariyya al-Islāmiyya fi’l-dawla, p. 282. 41 Abū al-Majd, Naẓarāt ḥawla al-fiqh al-dustūrī fī al-Islām, pp.  18–19; al-Ṣaʿīdī, al-Naẓariyya al-Islāmiyya fi’l-dawla, p. 282; Huwaydī, al-Islām wa’l-dīmuqrāṭiyya, pp. 115–17. 42 See, for example, al-Azhar’s 1977 “Draft Islamic Constitution.” See also Muhammad Asad, The Principles of State and Government in Islam (1961), which includes a set of reflections on social rights and ideological goals beyond the structure of governance.

The theoretical framework of modern Islamic constitutionalism  71 How far does the constituent authority (sulṭa taʾsīsiyya) of the umma extend? Is the umma free to create new institutions and forms of governance suitable to its time and place? Or is the specific office of the caliphate a permanent obligation of the sharīʿa in principle? How broadly based must the election of the ruler or other representatives be? While Sunni legal thought has always held that the caliph is an elective office (by ikhtiyār rather than the Shiʿite naṣṣ, or designation), it does not follow that participation in the election of the caliph needed to involve a wide segment of the population. Technically, the election was by the “People Who Loose and Bind” (ahl al-ḥall wa’l-ʿaqd), which could be an ad hoc council of notables; or even just the sitting caliph, who could “elect” his successor on the grounds that he was best placed to know what was in the ummah’s interest. By and large, modern Islamic constitutional theory is not comfortable with limiting the election of the ruler to a limited group of “People Who Loose and Bind,” but this nonetheless remains an issue of disagreement. Similarly, there is disagreement about the source of authority of other intermediary or representative bodies. Traditionally, scholar-jurists and whoever constituted the “People Who Loose and Bind” of the time stood in between the ruler and the people and to that extent mediated the ruler’s power. But they occupied this role on their own authority – whether epistocratic (in the case of the scholars) or functional (in the case of military and other bureaucratic elites who claimed to fulfil the role of the “People Who Loose and Bind”) – rather than by any authorization or consent of the people, and thus are often said to be the ones who represent sovereignty.43 By contrast, even where modern Islamic constitutional theory preserves a role for religious scholars or elite representatives in lawmaking, adjudication, consultation, policymaking and limiting the arbitrary power of the executive, it is an active point of debate whether the source of their practical political authority is only the consent and authorization of the people; or whether it can be imposed on the people because of their intrinsic capacity to govern in the people’s interest. While all Islamic constitutional theorists make some kind of “application of the sharīʿa” central to the understanding of political legitimacy, there is substantial disagreement about what it means to apply the sharīʿa; what is timeless and what is flexible in the sharīʿa; and whether the sharīʿa is more or less identical to the classical fiqh tradition, or is instead a living process of rediscovering the meaning of revelation based on present circumstances (ijtihād). Thus, there is ambiguity as to the core constitutional question of how free political authorities are to legislate about public matters from pre-political legal and moral constraints. Related to this problem, there is disagreement about the meaning and institutionalization of sharīʿa adjudication. A number of Muslim countries have articles in their constitutions declaring that the Islamic sharīʿa is the basis of all legislation, and that any new legislation must be compatible with, or not repugnant to, the sharīʿa. But there is little agreement on what this means in principle, never mind in practice. What is modern codified state law evaluated against for sharīʿa compatibility purposes – traditional fiqh law as found in the compendia and summaries of the legal schools; some new direct evaluation of what the primary sources of revelation require; or some combination of the two? Are all bodies of law treated equally in terms of the requirement of sharīʿa compatibility? Or is there a distinction between areas of law where the sharīʿa is thought to speak directly, and possibly definitively, and areas of the law where the umma and its representatives have greater freedom to pursue mundane welfare

Mūsā, Niẓām al-ḥukm fī al-Islām, p. 105.

43

72  Constitutions and religion (maṣlaḥa)? That is, does something like the classical distinction between fiqh (jurists’ law) and siyāsa (rulers’ law) persist, or is all legislative activity to be subject to divine restrictions? Finally, how should legislation beyond the strict confines of revealed texts be conceived? When the ummah or its representatives make law in areas that do not directly implicate the Qurʾān, the Sunnah, or traditional fiqh rulings, should this be regarded as lawmaking “outside the sharīʿa” or is the pursuit of the umma’s maṣlaḥa in this world – the dunyā – part of God’s will and thus part of what it means to enact a “living sharīʿa”? There is a further dimension to the question of sharīʿa adjudication: who decides on the question of the compatibility of state law with the sharīʿa and what is the implication of a finding one way or the other for the bindingness and validity of law within a given state? There is significant disagreement on who holds the authority to speak in the name of the sharīʿa in the modern state. The natural answer would be the experts in knowledge of the divine law (the ʿulamāʾ); but at least since the Persian Constitution of 1906, traditional scholars have shared this authority with lay jurists and other legislators. Thus, speaking in the name of the sharīʿa is not necessarily the monopoly of traditional experts. But more intriguing, perhaps, is the question of the authority of the sharīʿa as such. Suppose a new law is held to be in violation of sharīʿa principles. Does this immediately invalidate a law, or does it merely subject it to further scrutiny or revision? When other branches or authorities of government override an initial judgment of sharīʿa incompatibility, should this be seen as governing beyond the limits of the “sharīʿa;” or rather might the overall dialectical process of enacting law and policy in consideration of revealed texts, traditional scholarly knowledge and temporal considerations of the ummah’s best interest (maṣlaḥa) itself be what it means to govern in a religiously legitimate way (i.e. the idea of siyāsa sharʿiyya)?

4.

AFTER ISLAMIC CONSTITUTIONALISM? ISLAMIC CONSTITUTIONAL THEORY AFTER THE ARAB SPRING

The pragmatism (if we wish to avoid the more normatively loaded term “moderation”) of political Islam is almost an essential feature of a movement that is based on Islam’s presumed flexibility and applicability to all mundane historical conditions. But there is, nonetheless, something distinctive about the post-2011 condition. It is one thing to choose to accommodate or collaborate with a political order not of one’s making. This can always be portrayed as a tactical decision, or a compromise, which defers to the future some moment in which the ideological vision can be realized – whether through revolution, societal transformation or a democratic re-founding moment. And so, the non-utopian, non-ideal outcomes of post-2011 constituent politics are, I submit, a special moment for the trajectory of Islamism as ideology. In Egypt, that process was obviously destroyed by the military coup of July 2013, and thus an ideological reckoning can be deferred by pointing to the overwhelming anti-democratic power of the military and the permanent “deep state.” But in Tunisia, the new constitutional and political order is one produced solely by the ideological and demographic divisions internal to the political community, and the Islamist party was as much of a democratic author of this order as any other political formation. Given the systematic ideal theory available to Islamists there (using Rāshid al-Ghannūshī’s most elaborate theories, referenced in the previous section, as a paradigm), and the gap between that ideal theory and the politically negotiated result, it is

The theoretical framework of modern Islamic constitutionalism  73 reasonable to ask what distinct theory of legitimacy and sovereignty undergirds the religious commitment to this order. In the case of Tunisia – important because it is the primary context in which an Islamist party shares power within a genuinely open, competitive democratic system – the acceptance of a pluralist political system was followed by the decision by the Islamist party Ennahda to publicly rebrand itself as longer representing “political Islam,” but rather “Muslim democracy.” However, the exact theory of “Muslim democracy” and how it differs from “Islamism” remains only an outline at this point. That notwithstanding, based on my reading of post-2014 discourse in this context, I think it is possible to note some of the following shifts in approach to constitutionalism. The distinctive features of these post-Islamist writings on Islam and constitutionalism are: (1) the view that political life must be seen primarily as a contract to jointly pursue shared worldly and social goals; (2) that the existing range of moral and political pluralism in Tunisian society must be treated as a more or less fixed fact about society; (3) that (Islamic) morality requires pursuing political agreement given the existing ideological disagreement that presently exist; and thus (4) that the “sharīʿa” is now an almost generic commitment to the rule of law and limited government, rather than a denser corpus of rules, methods and principles. The arch legitimating frame for all of this is not the tradition of Islamic constitutional theory, but the lessons of the Prophet’s Covenant of Medina, as Ghannūshī now understands it. There is almost a Rawlsian view of the purpose of the basic structure of society: it is to guarantee a moral conception of social life, but one which can be subject to the widest possible reasonable agreement. Controversial matters should be left aside as long as a fully just political order can be achieved without resolving them. What remains to be seen, of course, is not only whether this more pragmatic and pluralist approach to religious and the constitutional order will become the norm for Muslim intellectuals and constitutional theorists, but also what kind of moral consensus it represents. It is most probable that the present relationship of Islamic doctrine (as understood by Ghannūshī and others) to the 2014 constitution is as no more than a constitutional consensus that Islamists can nonetheless be content with for principled reasons (some of them “Islamic” and some of them “free-standing,” derived from political experience.) One possibility, as theorized by Rawls, is that the practice of politics will make the liberal principles embedded in the 2014 Constitution seem attractive and irreplaceable, given the permanence of moral pluralism around questions of religion and lifestyle. Over a long enough period of time, the political compromises involved in accepting the Constitution will be given some kind of deeper theological justification.

74  Constitutions and religion Another possibility is that with demographic change (and perhaps political crisis), future Islamists feel entitled to embrace the consequences of being the social majority.44

44 One telling example emerged in 2018. In response to the proposal of the Tunisian President’s Committee on Individual Freedoms and Equality to enact law guaranteeing the equality of inheritance rights, the decriminalization of homosexuality, the abolition of the death penalty, the cancellation of the dowry and the right of women to pass on citizenship to a foreign husband (see www​.hrw​.org/​news/​2018/​ 07/​24/​tunisia​-pact​-equality​-individual​-freedom, last accessed May 19, 2020), Ghannūshī’s Ennahda party issued an official statement rejecting these changes. The head of the party’s Shūrā Council, ʿAbd al-Karīm al-Hārūnī, declared that the party “rejects any proposal that contradictions the constitution and the Qurʾanic texts.” This formulation encapsulates the very dilemma: is the present constitutional order already committed to upholding Islam in the form of divine sovereignty or are these two commitments contradictory? Hārūnī also articulates the ideal of an Islamic democracy, that the sovereign people would not violate divine will if acting with the proper virtue: “Al-Nahḍa rejects the change to laws on inheritance and any proposal that violate the constitution and contradicts the identity of the country,” since “Tunisia is a civil state for a Muslim people that adheres to the teachings of the constitution and the teachings of Islam, a civil state that expresses the will of the people [...] Al-Nahḍa will participate in the defense of the rights of women related to inheritance, but within the context of proposals and laws that respect the identity of the country [...] Al-Nahḍa supports interpretation [al-ijtihād] and initiatives to improve the status of women and will participate in the development of rules while adhering to the fixed teachings of Islam.” http://​nabdapp​.com/​jump​.php​?id​=​54231216, last accessed August 30, 2018.

5. The modern architecture of religious freedom as a fundamental right Peter G. Danchin

[T]he modern state and its political rationality have played a [...] decisive role in transforming preexisting religious differences, producing new forms of communal polarization, and making religion more rather than less salient to minority and majority identities alike. Furthermore, [...] insomuch as secularism is characterized by a globally shared form of national-political structuration, the regulation of religious difference takes a modular form across geographical boundaries.1

1. INTRODUCTION What do the following pairs of cases have in common? 1. The European Court of Human Rights (ECtHR) holds that the wearing of an Islamic headscarf by a schoolteacher in Switzerland is a “powerful external symbol” that may be legally proscribed to protect the religious beliefs of pupils and parents, and applies the principle of neutrality toward religion;2 while in a later case it finds that the compulsory display of a crucifix in Italian public school classrooms is an “essentially passive symbol” which neither threatens the religious beliefs of students or parents nor infringes the state’s duty of neutrality in the classroom.3 2. The U.S. Supreme Court holds that the sacramental use of peyote is an “outward physical act” which can claim no exemption or accommodation on the basis of religious liberty from neutral laws of general application;4 while in a later case it recognizes on the basis of religious liberty a “ministerial exception” to generally applicable employment discrimination law which is held to interfere with an “internal church decision that affects the faith and mission of the church itself.”5 3. The U.K. Supreme Court upholds a racial discrimination claim brought by a Jewish student who is denied admission to a Jewish school in London on the basis that he is not recognized as Jewish according to Orthodox interpretation of halakhah;6 while in earlier cases the

Saba Mahmood, Religious Difference in a Secular Age: A Minority Report 2 (2016). Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 463. 3 Lautsi v. Italy, App. No. 30814/06 (Grand Chamber, March 2011). 4 Employment Div. v. Smith, 494 U.S. 872 (1990). 5 EEOC v. Hosanna-Tabor, 132 S. Ct. 694, 706 (2012). 6 R. (on the application of E) v. The Governing Body of JFS, [2009] UKSC 15, [2010] 2 A.C. 728 (S.C.). 1 2

75

76  Constitutions and religion U.K. courts consistently recognize the right of religious schools under English law to deny admission to or limit the clothing of students on the basis of “religion.”7 4. The European Commission on Human Rights decides that the British government’s refusal to apply its blasphemy laws to the publication of Salman Rushdie’s The Satanic Verses is not a violation of religious freedom;8 while an earlier case decided by the ECtHR case upholds the British government’s seizure of a film on the basis it constituted an attack on the Christian religion by its “provocative portrayal of objects of religious veneration,” thus violating respect for the “religious feelings of believers” as guaranteed by the right to religious liberty.9 5. The Egyptian Administrative Court of Justice upholds the right of Bahais to have their religion listed on national identity cards on the basis of Islamic jurisprudence that indicates that “Muslim lands have housed non-Muslims with their different beliefs;”10 while on appeal, the Supreme Administrative Court holds, on the basis of the right to religious freedom as enshrined in the Egyptian Constitution, that such a listing on national identity cards is a violation of public order in “a country whose foundation and origin are based on Islamic sharia.”11 Despite their differences in spatial geography, culture and religious traditions, and despite divergences in reasoning and result, the first thing we might notice in common about these cases is that they are all contested in terms of the right to religious freedom. This, in itself, is not contested. In every case, the parties assert their claims in terms of the right to religious freedom before a national or international court or commission, which then proceeds to interpret the right and issue a legally binding judgment. Despite such differences, then, the thesis of this chapter is that we may discern a distinctive logic or common grammar that simultaneously grounds and shapes the normative structure of religious freedom as a modern constitutional or international right.12 Importantly, this logic is shared across the Western and non-Western divide. As the epigraph to this chapter suggests, this logic operates in two main forms: first, in the political rationality of the modern state (“political secularism”); and second, in the legal adjudication and realization of the right to religious freedom, with the result that “the regulation of religious difference takes a modular form across geographical boundaries” (“universal right.”) The juxtaposed cases in (1) to (5) above are drawn from a wide variety of jurisdictions and nation states, and involve a diversity of both majority and minority religious traditions and claims of right. Nevertheless, there is an unmistakable similarity in the conundrums entailed 7 R. (X) v. Headteachers and Governors of Y School, [2008] 1 All ER 249; R. (Begum) v. Governors of Denbigh High School, [2007] 1 AC 100. 8 Choudhury v. United Kingdom, App. No. 17439/90 (1991). 9 Otto–Preminger–Institut v. Austria, 295 Eur. Ct. H.R. (ser. A) (1994). 10 Husam Izzat Musa & Ranya Enayat Rushdy v. Ministry of Interior, Case 24044 of the forty-fifth judicial year, issued on 4 April 2006 (Court of Administrative Justice). 11 Cases No. 16834 and 18971 of the fifty-second judicial year, issued on 16 December 2006 (Supreme Administrative Court). 12 Cognizant of the many differences between national and international legal orders, I use the word “constitutional” here in a broad sense to include the right to religious freedom as recognized in regional and global human rights treaties such as Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and Article 18 of the International Covenant on Civil and Political Rights.

The modern architecture of religious freedom as a fundamental right  77 in regulating religious differences that crosses the Western and non-Western divide, and that reveals a distinctive set of contradictions internal to the concept of the right to religious liberty itself. The reasoning in the apparently conflicting cases in (1) and (2) can be seen to be premised on a shared distinction between internal and external spheres of religiosity, with ensuing consequences for conceptions of legal authority and the scope of state regulation. The cases in (3), (4) and (5) illustrate how the form of demarcation and meaning of these spheres is fiercely contested in terms of competing understandings of the object of the freedom protected by the right – whether construed as “belief,” “conscience,” or “religion.” The cases in (2) and (3) further illuminate how such contestation is complicated by unsettled questions concerning the proper subject of the right – whether an “individual,” a majority or minority “religious group,” a “religious institution” (e.g. “the Church”) or an entire “discursive tradition.” The cases in (5) finally present a yet deeper puzzle concerning what the terms “secular” and “religious” mean in modern accounts of political secularism, and how this question relates to competing justifications of the right to religious freedom itself. While the subject, object and meaning of the right are contested by the parties in all these cases, two matters remain beyond dispute: first, the need to apply the right to religious liberty itself to resolve the case at issue; and second, the authority of the courts of the sovereign state (whether at the national or international level) to determine what religion is for legal purposes, and the spaces and sensibilities it may inhabit in the legal and political order. This raises a second common feature: the deep anxiety generated by the adjudication of the right to religious freedom regarding contemporary conditions of secularity and individual freedom. Questions concerning the meaning of the right and the ensuing need to delimit the “religious” from the “secular” are axiomatically viewed as having the utmost consequence for the protection of fundamental rights and freedoms, and affecting the conditions more broadly of pluralism in a diverse polity. As observed by Agrama, this question is “always suffused with affects, sensibilities, and anxieties that mobilize and are mobilized by power,”13 as challenges to extant understandings of the secular and religious are viewed as posing threats to the continued existence of liberal rights and freedoms. Third, and finally, it is striking how the apparently conflicting reasoning in each pair of cases correlates with the outcome in each case being in favor of the majority religion in the state. A Muslim schoolteacher in Switzerland loses in her bid to wear religious symbols in the classroom, while the Catholic Italian majority is accorded a wide margin of appreciation in the same sphere. A Klamath Indian loses his claim to manifest his religion; while the Evangelical Lutheran Church is accorded a sphere of associational religious autonomy immune from general antidiscrimination law. The Jewish Free School in London loses its bid to maintain the freedom to apply its own criteria and authority regarding religious identity and membership, in contrast to the purportedly neutral criteria regarding religious subjectivity and discrimination employed by the Protestant majority. Speech directed at ridiculing, insulting or otherwise attacking Islamic symbols and traditions in Europe is defended as protected expression not violating religious freedom; while similar speech directed at Christian symbols and icons

Hussein Ali Agrama, Questioning Secularism: Islam, Sovereignty, and the Rule of Law Modern Egypt 27 (2012). For Agrama, political secularism is “a set of processes and structures of power wherein the question of where to draw a line between religion and politics continually arises,” and the ensuing distinctive sensibilities and anxieties are “indissolubly linked to the sovereign power of the modern state.” Id. 13

in

78  Constitutions and religion evokes different (albeit varied) responses in legal, moral and ethical registers. In the final pair of cases, the Bahai community in Egypt ultimately loses, while the Muslim majority prevails as regards the recognizability of the Bahai faith in the realm of religion and of the Bahais themselves in the realm of civil affairs. The discussion that follows explores these themes against the background of the paired sets of cases in order to advance two primary arguments. Section 2 argues that a core element of modern political secularism is the doctrine of state neutrality toward religion (the “neutrality thesis”). The genius of modern discourse is to define secular neutrality in terms of the right to religious freedom itself: that is, the state is neutral toward religion when, and indeed because, it protects the right to freedom of religion and belief. As we shall see, this move has significant implications not only for the constitutional relation of the modern state toward religion, but also for contemporary conceptions of religion and religious subjectivity. Section 3 then argues that a central and inescapable feature of the right to religious freedom is a bifurcation internal to the right itself between an inner domain of religious thought, conscience and belief on the one hand, and an outer domain of manifestation of religion or beliefs on the other. Modern constitutional and human rights law regard the former – known as the forum internum – to be absolute and immune from state interference; while the latter – known as the forum externum – is subject to state limitation where necessary to protect public order, morals or the rights of others (the “universality thesis.”) The bifurcated structure of the right explains the central paradox in modern religious freedom discourse: on the one hand, the constant intervention by the state and making of substantive judgments about religion, a domain toward which it claims to be neutral; on the other, the tendency of the courts to privilege the values and sensibilities of the majority religion and discriminate against minority religions, especially through recourse to the secular concept of public order.

2.

POLITICAL SECULARISM AND STATE NEUTRALITY TOWARD RELIGION

The conventional wisdom of modern constitutional doctrine is that the separation of religion and state is foundational to liberal democracy. On this view, the political authority of the state is understood not in terms of any formal relation between the state and religion(s), but rather in terms of secular neutrality. Consider the cases in (1) to (3). The question at issue in (1) is whether the presence of an Islamic headscarf or a crucifix in public school classrooms violates the state’s duty of neutrality toward religion. Similarly, the question in (2) is whether certain exemptions should be granted by the state on religious grounds from so-called neutral laws of general application. And in (3) the question is what it means exactly for the state to be neutral in the application of antidiscrimination law to both a majority (Christian) and minority (Jewish) religion. Today, we still see a tremendous variety of constitutional arrangements in the world prescribing different forms of relation between the state and religion(s).14 This includes a variety

14 On the relation between religion and state in various national constitutions, see Peter G. Danchin, Of Prophets and Proselytes: Freedom of Religion and the Conflict of Rights in International Law, 49 Harvard International Law Journal 249, 297–307 (2008).

The modern architecture of religious freedom as a fundamental right  79 of forms of recognition of, and formal relation to, both majority and minority religions.15 In the United Kingdom, for example, British legal policy toward majority and minority religious groups has moved through at least three phases, with the first in the early nineteenth century consisting of political compromises accommodating conflicting interests.16 But increasingly, such forms of negotiated relation are viewed as either historical anachronisms or obstacles to be overcome in order to achieve a properly neutral state. The result is that state neutrality toward religion is today understood in terms of the right to religious freedom itself. The neutrality of the political order is said to be achieved by the constitutional guarantee of the right to religious liberty. In this conceptual maneuver lies the genius of modern rights discourse: the neutrality thesis is in fact defined, and constitutionally interpreted, in terms of the universality thesis and, as we shall see in Section 3, vice versa. This applies as much to European states, with their deep history of church-state entanglement, as to states such as France or Turkey, with their traditions of laïcité; and the United States, with its tradition of nonestablishment.17 In this move, however, a seismic shift occurs in the relationship between conceptions of religious subjectivity, normativity and authority. The disciplinary structure and secular practices of the public sphere combine to produce the freely believing subject and concomitant Protestant conceptions of religion (especially in relation to scripture and rituals) and religious subjectivity (especially as regards moral and ethical sensibilities). Rather than neutrality toward religion, it is more accurate to say that the right to religious freedom purports to treat all rights holders equally. There is a rich and complex history behind the emergence of this particular conception of political secularism. Its roots lie in the civil enlightenment of the mid-seventeenth century,

15 For example, both Spain and Italy have established “concordat” systems of recognition that provide different rights and privileges to religious communities which are characterized by the use of negotiated agreements between the state and federations of religious institutions often formed for the purpose of concluding and administrating the agreements. See Gloria M. Morán, The Spanish System of Church and State, Brigham Young University Law Review 544 (1995); Silvio Ferrari, The Emerging Pattern of Church and State in Western Europe: The Italian Model, Brigham Young University Law Review 428–29 (1995). 16 Christopher McCrudden, Multiculturalism, Freedom of Religion, Equality, and the British Constitution: The JFS Case Considered, 9 Int’l J. Const. L. 200 (2011). This approach has two features: first, judicial abstinence, on the theory that matters of religious controversy are better left to the legislature; and second, pragmatic empiricism in the legislature, where compromises are sought in direct negotiations between religious communities and the government, often resulting in technical and nuanced statutory schemes as opposed to disputes of high constitutional principle. Id. 17 Unlike the United States and France, a number of European nation states – including Greece, Denmark, Iceland, Norway, Sweden and the United Kingdom – have official or established churches; while others have different forms of endorsed church or cooperationist regimes. This is an embarrassment for liberal theories of religious freedom and the notion of state neutrality. The ECHR contains no non-establishment norm and thus does not prohibit states from either endorsing or cooperating with religions, provided they respect the right to religious freedom in Article 9 and the right to nondiscrimination on the basis of religion in Article 14. The ECHR regime thus illustrates how neutrality is understood to mean protecting the right to religious freedom rather than any particular relationship or degree of separation or attachment between religion and the state, notwithstanding the obvious tension this generates in states with established or dominant religions (see the Lautsi case in (1)). See further Peter G. Danchin, Islam in the Secular Nomos of the European Court of Human Rights, 32 Michigan Journal of International Law 663, 671 (2011).

80  Constitutions and religion when the public sphere came to be understood in terms of social peace and religious liberty conceived in jurisdictional terms.18 The goal of the civil enlightenment strategy was not to protect religious freedom as a natural right against the state, but to end religious civil war by establishing a “neutral” juristic mode of governance over a multi-confessional society as the means of maintaining a legally enforced toleration between rival religious communities. Employing philosophical-theological notions such as adiaphora, the crucial point was that “should any form of worship pose a threat to public peace then, as something morally indifferent, it was legitimately subject to the civil sovereign, who had absolute authority over all matters capable of threatening public order.”19 In this civil philosophy, we can already see the emergent features of modern political secularism: the statist drawing of a line between a private sphere of religiosity understood to be free from sovereign interference and a public sphere of secular law which maintains the right to limit manifestations of religion where necessary to protect social peace and public order. This early philosophy, which predated the philosophical or “metaphysical” Aufklärung by more than a century, sought to desacralize the state and led over time to both the churches losing their civil and political authority and to the gradual “spiritualization” of religion.20 The notion of religious authority as axiomatically “private” in relation to the public authority of the state explains only in part, however, the modern picture. Another central strand of the story traces its origins to developments later in the eighteenth century and explains how the normativity of religion comes to be understood not only as privatized, but now as “interiorized” relative to a radically new conception of individual subjectivity. We see this emerging already in John Locke’s late seventeenth century argument for religious toleration. Unlike the civil philosophers, for whom religious toleration was a right of the state against intolerant religious communities, toleration for Locke was a right of individuals against an intolerant state.21 Locke’s empiricist epistemology led to a conception of civil power as directed to the regulation of things that can be “objectively known,” whereas religious belief was relegated to the status of “subjective conviction.”22 On this view, the neutrality of civil law

18 Although this “civil” jurisdictional conception differed markedly from the older “Two Realms” or “Two Kingdoms” tradition of church-state separation, under which all authority was viewed as ultimately derived from God and only question was to demarcate what was properly God’s and what was Caesar’s. 19 This employed a “juridical-ecclesial category to narrow the array of doctrine and liturgy where salvation was at stake and to expand the array that could be regarded as soteriologically indifferent and hence to be seen not from a sacramental-religious standpoint but from a juridical-political one.” Ian Hunter, Religious Freedom in Early Modern Germany: Theology, Philosophy, and Legal Casuistry, 113 South Atl. Q. 37, 56 (2014). 20 The civil enlightenment resulted in a remarkable shift in the understanding of religious authority as Erastian control of churches by the state was effected to deny the coercive authority of religious institutions in enforcing the demands of conscience. This was the condition of freedom in the private sphere – a sphere defined, protected, delimited and increasingly regulated by the state itself: see Danchin, supra note 17, at 731. 21 Hunter, supra note 19, at 40. 22 Locke’s theory of toleration thus equally relies on a particular conception of adiaphora: religious matters, properly understood, have no civil bearing as properly religious practices concern only a care for salvation and cannot harm the life, liberty or estate of civil subjects. Conversely, there can be no coercion in “religious matters,” as one cannot correct belief, which is a matter of private concern. Kirstie McClure, Difference, Diversity, and the Limits of Toleration, 18 Political Theory 361, 377 (1990).

The modern architecture of religious freedom as a fundamental right  81 with respect to religion and the truth of particular religious practices was guaranteed epistemologically by relegating religious belief to the “realm of speculation.”23 The idea of religion as a “subjective belief” which is unable to be coerced because located in a private mental space marks the beginning of a new religious psychology and corresponding shift from the privatization of religious authority in the early modern period to its normative interiorization in modernity. As Talal Asad has suggested, it is the idea that the mind is the impregnable bastion of true religious experience that provides the modern view with its plausibility – that is, that coercion of religious belief is irrational because impossible.24 Given that force can only secure an insincere profession of faith and outward conformity, true authenticity rests on the modern subject’s ability to choose his or her beliefs and act on them. This conception of belief as “singular and inaccessible to other locations” reinforces the idea of an autonomous “buffered” subject able to separate itself from objects by contemplation, reasoning and interpretation and choose from available beliefs.25 On this view, the essential nature of religion is understood in creedal terms – that is, as a “set of beliefs in a set of propositions (about transcendence, causality, cosmology) to which an individual gives assent.”26 Importantly, this conception of religion “emphasizes the priority of belief as a state of mind rather than as constituting activity in the world.”27 Noting that the boundary between the secular and religious has been constantly redrawn in the history of Christianity, Asad similarly traces the major shift in understanding of the category of religion to the mid-seventeenth century, when the Roman church lost its authority to make these distinctions: “What comes to be called ‘religion’ is now both universal in the widest sense, as in ideas about Natural Religion, existing in every society, and individual in the deepest sense, that is really in the inner beliefs of individuals.”28 This intellectual disposition and religious sensibility prefigured the second, later liberal tradition which saw the public sphere reconceived in terms of a moral theory of justice and religious liberty grounded in a complex (and unstable) notion of a right to freedom of conscience and belief. This conception derived from a metaphysical (or more accurately “transcendental”) philosophical tradition that simultaneously sacralized reason and rationalized religion in a morally grounded state.29

23 It is the “discursive separation from other-worldly concerns” that therefore underpins the capacity of civil discourse to convert incommensurable expressions of religious “difference” into a politically indifferent “diversity” of religious practices. McClure, supra note 22, at 385. On this account, religion as a matter of facticity loses its epistemological privilege joining other mundane objects subject to civil regulation. 24 See Talal Asad, Comments on Conversion, in Conversion to Modernities: The Globalization of Christianity 263, 269 (Peter van der Veer ed., 1996) (discussing the new psychology adopted by Locke of “identifying ‘religious belief’ as a phenomenon of ‘consciousness’ along with other internal phenomena”). 25 Charles Taylor, A Secular Age 27 (2007) Part I (The Work of Reform). 26 Saba Mahmood, Can Secularism Be Other‒wise?, in Varieties of Secularism in a Secular Age 283 (Michael Warner, Jonathan VanAntwerpen and Craig J. Calhoun eds., 2010). 27 Talal Asad, Genealogies of Religion: Discipline and Reasons of Power in Christianity and Islam 47 (1993). 28 Peter van der Veer, Review Article: The Modernity of Religion, 20 Social History 365, 367 (1995). 29 Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (2001).

82  Constitutions and religion This late eighteenth century Kantian philosophy generated a new secular morality and theory of liberal political order premised on broadly Protestant conceptions of the individual, freedom and religion. Unlike the civil philosophy of the early modern period, the subject of this moral philosophy was not “religion” per se, but the individual as both the subject and bearer of rights. The category of religion was rationalized and naturalized into a generically Protestant notion of conscience or belief understood as internal to human subjectivity, while the notion of autonomy was asserted as the universal basis for political authority.30 While Kant himself maintained the distinction between public and private spheres – reason for him being “submissive” in the private sphere on account of the moral duty to follow one’s conscience, while “free” in the public sphere by virtue of the right to “use reason publicly in all matters”31 – over the last two centuries these distinctions have substantially been reversed in the modern secular imaginary.32 This has had a profound effect on conceptualization of the public and private spheres. If, for the civil philosophers and Kant alike, a spiritualized notion of religion as faith or conscience characterized the private sphere, today the duty to follow conscience has been reimagined as freedom of conscience, now understood in terms of autonomy as an individual right to do what one believes is right.33 The private sphere remains a (reconceptualized) space of freedom from state interference; but the basis for this restraint is not respect for religion or conscience per se, but rather respect for the individual’s right to choose not only the dictates of his or her religion or conscience, but indeed any belief at all. This is reflected in the contemporary formulation of the forum internum of the right as “freedom of thought, conscience and religion,” which comprises the modern category of the essentially religious – that is, as purportedly not subject to limitation by the state.34 This modern conception of the right to religious freedom as essentially grounded in individual belief has generated three recurring paradoxes or puzzles for contemporary rights jurisprudence concerning first the subject, second the object and third the justification or source of the right itself. Let us consider each briefly in turn. Danchin, supra note 17, at 733–34. Immanuel Kant, An Answer to the Question: What Is Enlightenment?, in What Is Enlightenment? Eighteenth-Century Answers and Twentieth-Century Questions 58, 59–60 (James Schmidt ed., 1996). 32 As Foucault observed, Kant’s conception of public and private is “term for term, the opposite of what is ordinarily called freedom of conscience.” Michel Foucault, What Is Enlightenment?, in The Foucault Reader 32, 36 (Paul Rabinow ed., 1984). 33 Thus, in Religion Within the Boundaries of Mere Reason, Kant develops the notion of a purely “rational religion,” which is premised on the exclusion of theology from theoretical reason and the grounding of faith in solely practical (moral) reason. In this way, religion is to be controlled by and subject to the demands of (secular) morality. Immanuel Kant, Religion within the Boundaries of Mere Reason, in Religion Within the Boundaries of Mere Reason And Other Writings 31 (Allen Wood and George di Giovanni eds., trans., 1998). 34 The formulation “[e]veryone has the right to freedom of thought, conscience and religion” is repeated identically in all the major international human rights instruments: see, for example, Universal Declaration of Human Rights art. 18, G.A. Res. 217 A (III), U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (12 December 1948); ECHR art. 9, Nov. 4, 1950, E.T.S. No. 5, 213 U.N.T.S. 222; International Covenant on Civil and Political Rights art. 18, Dec. 16, 1966, 999 U.N.T.S. 171; Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief arts. 1, 6, G.A. Res. 36/55, U.N. Doc. A/36/684 (November 25, 1981). 30 31

The modern architecture of religious freedom as a fundamental right  83 2.1

The Individual as Subject of the Right

While at an epistemological level, there is considerable divergence in the interpretation and application of religious freedom norms in national and international jurisdictions, at an ontological level there is a remarkable underlying convergence and consensus on the question of the subject of the right. Consider the two primary modern genealogies of the right: one understood as grounded in apodictic reason and viewed in broadly Kantian terms as an a priori subjective right that the individual gives to himself or herself in accordance with a universal moral law;35 the other understood as grounded in natural reason and viewed in broadly Thomist and later Lockean terms as an objective right to conscience in accordance with natural law.36 Despite deep differences in their modes of justification and authority, these two genealogies interestingly converge, from opposite directions, on the same basic normative picture: the individual as subject either autonomously choosing (as a classic liberal right) or freely believing (as a natural right) his or her ultimate ends and values. Despite their internal tensions, the two conceptions are often fused together and asserted in a single form as a universal human right to “freedom of thought, conscience and religion.” As a matter of ontology, it is now the rational, autonomous human being, as opposed to heteronomous “religion,” that is the proper subject of normativity. The individual – now as a matter of right – decides for himself or herself (as authority) questions of religion, conscience and belief (as object). As discussed above, religion is thereby reformulated in accordance with a distinctive normative model of religiosity: a privatized belief in a set of creedal propositions to which an autonomous individual gives assent. This generates the distinctive and unstable co-imbrication of conscience and autonomy as the “buffered” self simultaneously chooses autonomously and believes freely.37 Virtually all modern rights theories trace the genealogies of some version of this proposition to the legacies of nominalism, the collapse of medieval scholasticism, the Protestant Reformation, humanism and the civil and philosophical Enlightenments. Charles Taylor’s landmark A Secular Age is a prominent recent example.38 Importantly, these accounts are all told from within the Western Christian tradition – often expressly in opposition to religious traditions such as Judaism and Islam, where individual choice or belief is not the normative starting point in comparison to more collective concep35 As noted by Connolly, Kant elevated a universal philosophy of “rational religion” above Christian theology by anchoring “rational religion in the law of morality rather than anchoring morality in ecclesiastical faith.” This “shifts the proximate point of command from the Christian God to the moral subject itself,” with the result that “morality as law now itself becomes anchored only in the ‘apodictic’ recognition by ordinary human beings of its binding authority.” See William Connolly, The Conceits of Secularism, in Why I am Not a Secularist 30–31 (2000). 36 See, for example, John Finnis, Why Religious Liberty is a Special, Important and Limited Right, Notre Dame Legal Studies Paper no. 09–11 (April 22, 2009) at 8 (citing John Paul II, Encyclical Veritatis Splendor (1993): “In any event, it is always from the truth that the dignity of conscience derives. In the case of the correct conscience, it is a question of the objective truth received by man; in the case of the erroneous conscience, it is a question of what man, mistakenly, subjectively considers to be true.)” For an analysis of the natural law arguments of Aquinas and Locke, see Ginna M. Pennance-Acevedo, St. Thomas Aquinas and John Locke on Natural Law, 6 Studia Gilsoniana 221 (April–June 2017). 37 See Danchin, supra note 17, at 708 ff. 38 See Taylor, supra note 25. For another perceptive recent account, see Michael Allen Gillespie, The Theological Origins of Modernity (2008).

84  Constitutions and religion tions of religious subjectivity. Consider, for example, Immanuel Kant’s depiction of Judaism in his Religion within the Boundaries of Mere Reason (1793): Strictly speaking, Judaism is not a religion at all but simply the union of a number of individuals who, since they belonged to a particular stock, established themselves into a community under purely political laws, hence not into a church [...] We cannot, therefore, begin the universal history of the Church [...] anywhere but from the origin of Christianity, which, as a total abandonment of the Judaism in which it originated, grounded an entirely new principle, effected a total revolution in doctrines of faith [...] The subsequent discarding of the corporeal sign which served wholly to separate this people from others is itself warrant for the judgment that the new faith, not bound to the statutes of the old, nor, indeed, to any statute at all, was to contain a religion valid for the world and not for one single people.39

Or in the present day, consider the depiction of Islam in Refah Partisi where the ECtHR found that both sharia and “plural religiously-based legal systems” were – even if democratically adopted – inherently incompatible with the European Convention on Human Rights and its concomitant notions of democracy and the rule of law.40 Even within these Western narratives, however, unsettled questions remain regarding the moral status, scope and justification of the right to religious liberty as regards institutions and collective subjects such as “the church” (libertas ecclesiae)41 and religious majority and minority groups. Consider, for example, the Lautsi case in (1). In 2009, the Second Chamber of the ECtHR held unanimously that the presence of crucifixes in Italian public school classrooms violated the right of children to religious freedom under Article 9.42 The decision was immediately met with outrage in Italy which, in conjunction with seven other intervening European states, appealed to the Grand Chamber of the ECtHR. The argument of the Italian government was that the presence of crucifixes in classrooms was: the expression of a ‘national particularity,’ characterized notably by close relations between the State, the people and Catholicism attributable to the historical, cultural and territorial development of Italy and to a deeply rooted and long-standing attachment to the values of Catholicism.43

Further, the government contended that “account must be taken of the fact that the Catholic religion was that of a large majority of Italians;” and that the ECtHR should “acknowledge and protect national traditions and the prevailing popular feeling, and leave each State to maintain a balance between opposing interests.”44 The Grand Chamber by a majority of 15:2 reversed the judgment of the Second Chamber, holding that “the decision whether crucifixes should be present in State-school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State,” and Kant, supra note 33, at 132. Refah Partisi v. Turkey, App. No. 41340/98, 37 Eur. H.R. Rep. 1, 41 (2003). 41 The term libertas ecclesiae is often traced to Pope Gregory VII in 1079 and encompasses the notion of freedom of ecclesiastical authority from secular or temporal power. See Harold Berman, Law and Revolution 87 (1983). 42 Lautsi v. Italy, App. No. 30814/06, paras. 48–58 (Eur. Ct. H.R. Second Section, 3 November 2009). 43 Lautsi v. Italy, App. No. 30814/06 (Grand Chamber, March 2011), para. 36. 44 Ibid. para. 37. 39 40

The modern architecture of religious freedom as a fundamental right  85 that this did not infringe the State’s duty of neutrality and impartiality.45 What remains deeply unresolved in the ECtHR’s reasoning, however, is what right exactly a majority people or religion can assert as a matter of constitutional or international law and how such a claim relates conceptually and doctrinally to the right to religious freedom.46 Finally, consider also the recent Hosanna-Tabor case in (2). In its interpretation of the Religion Clauses of the First Amendment, the U.S. Supreme Court recognized a new “ministerial exception” to antidiscrimination law. The dilemma for the court was how to justify religious liberty as a collective right, here attaching to religious groups and institutions, as opposed to individual persons. Religious institutions do not have consciences per se; only their individual members do – although religious entities do have texts, traditions, rituals and practices. If such groups or institutions are bearers of rights, what is the scope of that right, what forms of conduct and activity does it include, and with what legal consequences? Does the right correlate to a duty on the state not to interfere in some “autonomous” sphere (as yet undetermined) or officially to recognize certain group manifestations of religious practice? If so, why does this not pose the same threat to the modern administrative state recognized in Employment Division v. Smith, where Justice Scalia argued that “permitting [a person] by virtue of his beliefs ‘to become a law unto himself,’ contradicts both constitutional tradition and common sense”?47 Writing for a unanimous court, Chief Justice Roberts neatly distilled and wove together distinctly Protestant terms such as “church,” “minister,” “ecclesiastical,” “belief,” “faith,” and “mission” to hold that “the authority to select and control who will minister to the faithful – a matter ‘strictly ecclesiastical’ – is the church’s alone.”48 In so doing, the court made two doctrinal maneuvers: first, by broadening the liberal notion of autonomy to include “the church” as a legal subject with a right to a certain sphere of freedom; and second, by analogizing the “inner conscience of the church” to individual conscience conceived in some sense as extra-legal and pre-political. The court thus sought to justify a realm not merely of autonomy but of sovereignty – a jurisdiction in some sense independent of the state.49 Such lines of jurisprudence in both the U.S. Supreme Court and the ECtHR seeking to justify recognition of claims to collective religious autonomy remain in deep tension with the normative structure of modern rights discourse. The difficulty is that some argument is needed to justify this particular conception of collective religious subjectivity and demarcation of spheres – an argument which itself must not violate the core tenets of liberal political secularism; that is, it must be neutral toward “religion,” while at the same time respecting the right to religious freedom.50

Ibid. paras. 60–8. For discussion, see Danchin, supra note 17, at 720–23. 47 Employment Division v. Smith, 494 U.S. 872, 879 (1990). 48 132 S. Ct. 694, 706 (2012). 49 See further Peter G. Danchin, Religious Freedom in the Panopticon of Enlightenment Rationality, in Politics of Religious Freedom 249–50 (Winnifred Fallers Sullivan, Elizabeth Shakman Hurd, Saba Mahmood and Peter G. Danchin eds., 2015) (arguing that “[i]n this set of historically and culturally contingent moves, a Protestant understanding of ‘the church’ and an Enlightenment conception of freedom are simultaneously asserted and naturalized.”) 50 On the one hand, it is difficult within the strongly individualistic and humanistic structure of modern religious freedom discourse to justify recognition of religious institutions (“the church”) and collective religious subjects (“peoples,” “nations,” “minorities”) as subjects of the right, as illustrated 45 46

86  Constitutions and religion 2.2

Belief or Conscience as Object of the Right

The second recurring puzzle for religious freedom discourse concerns the object of the right. This is currently a matter of deep controversy in the field: certain law and religion scholars, such as Winnifred Fallers Sullivan, argue for the impossibility of religious freedom on account of the impossibility of defining religion;51 while certain legal philosophers, such as Brian Leiter, argue that current forms of constitutional accommodation and toleration of religion are rationally unjustifiable.52 As discussed above, when constitutions or international treaties speak of freedom of “thought,” “conscience,” “religion” or “belief” as the object of the right, they do so as if these terms are conceptually related in some self-evident way. But this assumption fails to pay attention to the closely intertwined ontological and theological genealogies of these terms. If on a Kantian view, for example, “belief” is an object of choice by an autonomous individual, what conceptions of God or the divine does such a moral economy imagine or even make possible? Is God thereby a “concept” or “postulate” internal to human thought and practical reason? What authority does God have if posited as a concept subject to the overarching authority of universal reason and the rational discipline of the categorical imperative?53 Conversely, if on a more Thomistic view, “conscience” or “belief” is a feature of or deduction from natural reason, to what extent is this a universal moral category as opposed to being entangled with and resting on premises internal to Christian moral thought and doctrine?54 Does the meaning and normative valence of “conscience” differ if considered internally to halakha or sharia-based traditions of thought and deliberation?55 by cases such as Lautsi and Hosanna-Tabor. On the other hand, adopting “the individual” as the sole or primary subject of the right leads to distorting effects and failures of recognition in cases involving non-Western, or even simply non-Protestant, religious traditions and conceptions of religious subjectivity, as cases such as Smith illustrate, where a claim to religious freedom was brought by the member of a Native American religious tradition. 51 Winnifred Fallers Sullivan, The Impossibility of Religious Freedom (2005). 52 Brian Leiter, Why Tolerate Religion? (2012). For a discussion of these two arguments, see Silvio Ferrari, Religion Between Liberty and Equality, 4 Journal of Law, Religion and State 179 (2016). 53 In Opus Postum, Kant argues that “[t]he commanding subject is God [where] [...] this commanding being is not outside man as a substance different from man.” As Insole observes, this is a quasi-theological proposition: “our giving to ourselves the moral law has the mark of divinity, such that, in a sense, we are God-like in this function. We have a sort of theoisis, where human beings become transformed in the image of God; but where God disappears into the human being as this happens.” In Kant’s transcendental idealism, this theoisis in fact “eclipses God, rather than being an increasing participation in God.” Christopher J. Insole, Kant and the Creation of Freedom: A Theological Problem 170 (2013). See also Christopher J. Insole, Kant’s Transcendental Idealism, Freedom and the Divine Mind, 27 Modern Theology 608 (2011). 54 See, for example, Talal Asad, The Construction of Religion as an Anthropological Category, in Genealogies of Religion: Discipline and Reasons of Power in Christianity and Islam 48 (1993) (discussing the “assumption that belief is a distinctive mental state characteristic of all religions” and arguing “[i]t is preeminently the Christian church that has occupied itself with identifying, cultivating, and testing belief as a verbalizable inner condition of true religion.”) See also Talal Asad, Medieval Heresy: An Anthropological View, 11 Social History 345 (1986). 55 For an extended discussion of this issue, see Peter Danchin and Louis Blond, Unlawful Religion? Modern Secular Power and the Legal Reasoning in the JFS Case, 29 Maryland Journal of International Law 419, 467–75 (2014).

The modern architecture of religious freedom as a fundamental right  87 Finally, if it is in fact “religion” per se that is the proper object of the right, how can we speak meaningfully today of entire discursive traditions encompassing their own sources, justification and hermeneutics, and thus their own conceptions of religious identity, membership and practice, as being the objects of and subject to the regulation of individual rights? The elision of the term “religion” with “belief” is arguably the most striking feature of contemporary rights discourse. Any non-Christian or non-Western religion which deviates from this notion of religion as private belief and subjective experience thus faces a double charge: not only is it a threat to the secular political order, but it is also not religion in its true, modern form.56 This applies as much to the Coptic Orthodox Church in Egypt or the Russian Orthodox Church as to traditions in Islam, Judaism, Buddhism or African traditional religions. 2.3

The Source or Justification of the Right

The third, and arguably deepest, puzzle concerns the theoretical justification and apparent unity of the right itself. What is the ontology and normative source of the right? What is “universal,” “apodictic” or “natural” reason exactly? Are these metaphysical claims to some form of natural reality, or transcendental claims to some form of non-natural or, in Kantian terms, noumenal reality? In either case as we have seen, the modern picture is grounded on and dominated by the concept of a knowing moral or rational subject understood itself to be the proper source of normativity which simultaneously chooses autonomously as a matter of moral right and believes freely as a matter of theological conviction. It is the apparent convergence and complementarity of these moral and theological claims – and the ever-present danger that their latent antinomies will pull them apart – that provides the momentary appearance of a unified theory of religious liberty. While there are conflicting accounts of how to understand post-Enlightenment conceptions of modernity, in all of them it is the autonomous self-legislating individual that stands as the ontological foundation. This in itself is not contested: the right is a “human” right, not a right ultimately derived from or dependent on any divine heteronomous order or source. If in certain religious traditions norms are divinely revealed or given by revelation to humans as objects, then in the modern secular imaginary the human as subject stands in an entirely new relation to normativity and authority. An end independent of choice internal to which morality stands (“religion”) is now itself an object of choice of a knowing subject in the form of freely chosen conscience or belief. This is the work that rights discourse and secular morality seeks to do.

56 Charles Hirschkind, Religious Difference and Democratic Pluralism: Some Recent Debates and Frameworks, 44 Temenos 123, 126 (2008) (regarding secular modernity in Europe, “it turns out that the modern concept of religion as private belief conforms to religion in its essence,” and that a “certain post-Reformation understanding of Christianity is valorized as true religion in its undistorted form, while all other religious traditions and forms of religiosity are recognized as incompatible with modernity, lacking all the doctrinal resources that would enable them to accede to the modern”).

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3.

UNIVERSAL RIGHT AND CONSTITUTIONAL ADJUDICATION

Each of these puzzles regarding the subject, object and justification of the right raises serious tensions and sites of contestation internal to the modern architecture of religious freedom discourse. This helps to explain the paradox we see in the pairs of cases in (1)–(5) of seemingly opposed outcomes on the one hand, but commonly structured “modular” reasoning on the other. This in turn raises the question of how the right to religious freedom operates in the praxis of constitutional and international rights-based adjudication and jurisprudence. Here, there is a reversal of the logic of defining the neutrality of the political order toward religion in terms of the right to religious liberty. Rather, it is now the universality of the right that is understood in terms of construing and securing the neutrality of the public sphere toward religion. As a matter of legal praxis, this requires the state or supranational judicial bodies constantly to recognize or limit claims regarding the manifestation of religious belief and practice. It is this process of ever-deepening constitutional and supranational adjudication of rights claims that generates the distinctive entanglement of religion and law we see in different domains of the public and private spheres. Before proceeding, it is important to observe how this aspect of modern secular governance generates a paradox at the heart of the logic of political secularism. Recall again that the neutrality thesis is premised on the need for the separation of religion and politics as being foundational to liberal democratic governance.57 But rather than withdraw from the religious domain, the modern state has been shown constantly to intervene and seek to reconfigure substantive features of religious life by distinguishing between what is properly religious and what is not in order to render certain practices indifferent to religious doctrine and bring them legitimately under the domain of civil law.58 The result is the constant intertwining of religion and governance as modern secular power operates incessantly to determine the scope of religion in the political order.59 As a matter of both constitutional and international jurisprudence, this is achieved doctrinally through the bifurcated structure of the right as between a putative forum internum and forum externum. The forum internum is regarded as absolute, conventionally in the form of the unstable co-imbrication between autonomy and belief or conscience discussed in Section 2 above; but in certain cases courts have held this to be broader, encompassing wider aspects of religious doctrine and practice. The forum externum, on the other hand, encompasses the

57 See, for example, Cécile Laborde, Dworkin’s Freedom of Religion Without God, 94 Boston University Law Review 1255, 1260 (2014) (stating the doctrine as requiring that “government respects citizens’ ethical independence when it only appeals to neutral justifications in the pursuit of its policies – in particular, when it does not endorse the truth of one religious or ethical view”). 58 See supra note 22 and accompanying text discussing Locke’s empiricist epistemology, and how the neutrality of civil law with respect to religion and the truth of particular religious practices was guaranteed epistemologically by relegating religious belief to the “realm of speculation.” 59 Hussein Ali Agrama, Secularism, Sovereignty, Indeterminacy: Is Egypt a Secular or Religious State?, 52 Comparative Studies in Society and History 495, 499 (2010) (noting that recent critical scholarship on the nature of secularism emphasizes that it “involves less a separation of religion and politics than the fashioning of religion as an object of continual management and intervention, and the shaping of religious life and sensibility to fit the presuppositions and ongoing requirements of liberal governance”).

The modern architecture of religious freedom as a fundamental right  89 manifestation of religious belief and practice and is held to be subject to state limitation where necessary to protect public order, morals or the rights of others. Let us consider each domain briefly in turn. 3.1

Forum Internum as “Rational Religion”

In its modern liberal guise, the forum internum encompasses religion in its rational form (“rational religion” in Kantian philosophy), which is internal to the rational subject and thus presumes or depends on a particular genealogy of rationality. For Kant, rational religion is “pure religious belief.”60 As William Connolly has observed, Kant elevates a generic Christianity called “rational religion” above sectarian faith, anchoring the former in a metaphysic of the supersensible that, so the story goes, is presupposed by any agent of morality. In the process, Kant degrades ritual and arts of the self without eliminating them altogether, for these arts work on the ‘sensibility’ rather than drawing moral obligation from the supersensible realm, as practical reason does. The point is to deploy them just enough to render crude sensibilities better equipped to accept the moral law drawn from practical reason.61 Both the U.S. Supreme Court and the ECtHR have long struggled with the issue of how to define the content and scope of the forum internum, and the religious liberty jurisprudence of both jurisdictions unsurprisingly provides no clear guidance on the proper object of the protected sphere of the forum internum. The two recent cases of Hosanna-Tabor in (2) and Jews Free School in (3) provide powerful illustrations of this doctrinal indeterminacy. As discussed above,62 in Hosanna-Tabor the U.S. Supreme Court employs and broadens the notion of liberal autonomy to include “the church” as a legal subject with a right to a certain sphere of collective freedom. But unlike in Smith, as soon the forum internum is interpreted to include certain broader manifestations of religious practice, potential conflicts arise with the legal authority and sovereign interests of the state. The court responds to this by shifting to the language of “conscience” and in effect analogizing the “inner conscience of the church” to individual conscience conceived as a sovereign realm free from state interference.63 But how exactly does the court know which matters are “strictly ecclesiastical” or which affect “the faith and mission of the church”? From a religious point of view, the scope of the “inner conscience of the church” is likely to be more broadly conceived than that permitted under the ministerial exception as delimited in Hosanna-Tabor. Conversely, from a secular point of view there are likely to be a host of activities and actions pertaining to the “inner conscience of the church” that raise interests and concerns pertaining to the proper exercise of legal jurisdiction.64 60 Immanuel Kant, The Conflict of the Faculties, in Religion and Rational Theology 273 (Allen W. Wood and George di Giovanni trans. and eds., 1996). 61 Connolly, supra note 35, at 30–31. 62 See supra note 49 and accompanying text. 63 As Winnifred Sullivan has observed, the idea appears to be that “Churches are prior to conscience,” for it is in churches that the individual conscience is formed. As I have argued elsewhere, this is a deeply theological argument which seeks to identify the proper attributes of religion and religious subjectivity: see Danchin, supra note 49, at 250. 64 This has become an acute subject of contestation, as antidiscrimination law is increasingly seen to apply within the sphere of religious liberty traditionally understood as being free from sovereign

90  Constitutions and religion Given these complexities, the nature and scope of the relation between autonomy and conscience remain unclear in the court’s formulation of the ministerial exception. What appears pivotal for the court is that the church “freely decide” ecclesiastical matters as a matter of right, and that it have autonomy to control matters, even on non-religious grounds, provided these pertain to the “inner conscience of the church.” As I have argued elsewhere, the first argument defines conscience in terms of autonomy, while the second defines autonomy in terms of conscience, thereby intertwining and naturalizing a Protestant view of “the church” and a classical liberal conception of freedom.65 A similar ambiguity is evident in the reasoning of the U.K. Supreme Court in the Jews’ Free School case concerning the right of a Jewish school in London to deny admission to a student not recognized as being Jewish according to Orthodox interpretation of halakhah (the student’s family practice of Judaism nothwithstanding). As the reasoning in the majority, concurring and dissenting judgments unfolds, we see the same antinomies and contradictions that are present in Hosanna-Tabor as the twin premises of neutrality toward religion and universality of the right are continually entangled with and defined in terms of their opposites.66 The five-judge majority implicitly interprets the forum internum as encompassing the right to choose one’s beliefs, but not the immunity of those beliefs themselves.67 The two-judge concurrence, however, expresses anxiety about the direct interference by the majority’s reasoning in the forum internum of the Jewish religion and adopts a more internal perspective that seeks instead to accommodate, subject to the constraints of liberal autonomy in the forum externum, the duty to comply with Orthodox religious law.68 Finally, the two-judge dissent relies on more classical liberal ideas of negative liberty and judicial abstention to recognize a space of collective religious freedom where the questions of religious identity, authority, membership and practice are not subject to English antidiscrimination law or judicial supervision.69 Finally, it is important to recognize again that this modular form of reasoning and need to demarcate a forum internum as integral to the right to religious freedom is a phenomenon that cuts across the Western/non-Western divide. We thus see strikingly similar patterns of normative legal contestation in countries such as Egypt, which is a self-avowedly Islamic state that regards the Islamic sharia to be the source of all of its laws. As Saba Mahmood and I have discussed regarding the Bahai cases in (5), the “dilemma of how to demarcate the meaning and scope of the forum internum has been shown necessarily to involve the courts in making sub-

interference: see, for example, David E. Bernstein, Antidiscrimination Laws and the First Amendment, 66 Missouri Law Review 83, 138 (2001) (noting that “[a]s the scope of antidiscrimination laws has grown, the political constituency supporting such laws at the expense of constitutional rights has grown apace”); Ira C. Lupu, Free Exercise Exemption and Religious Institutions: The Case of Employment Discrimination, 67 Boston University Law Review 391 (1987). 65 Danchin, supra note 49, at 251. 66 For analysis of the reasoning in the case, see Danchin and Blond, supra note 55. 67 Any inquiry into the reasoning behind the matrilineal test and related conversion criteria and how these are understood within Jewish religious law are viewed by the majority as “subjective” motives which are then rejected as irrelevant to the factual question of direct racial discrimination: JFS [2009] UKSC 15, ¶ 35 (Lord Phillips). Implicit in this reasoning is the assumption that religion is a matter of choice (assent to beliefs), while race and ethnicity are immutable, unchosen characteristics. 68 JFS [2009] UKSC 15, ¶ 201 (Lord Hope); ¶ 227 (Lord Roger). 69 JFS [2009] UKSC 15, ¶ 258 (Lord Brown).

The modern architecture of religious freedom as a fundamental right  91 stantive judgments on what falls within the protected category.”70 Paradoxically then, courts must make judgments that are entangled with and premised on religious criteria and concepts in order to identify and demarcate a private sphere “free” from state authority. 3.2

Forum Externum and Public Order

The second part of the bifurcated structure of the modern right to religious freedom ensues from the first. Unlike the forum internum, the notion of the forum externum is understood to be subject to the authority of the state in two respects: first, in terms of state recognition of religious practices and rites – as we see, for example, in cases such as Lautsi in (1) and Hosanna-Tabor in (2); and second, in terms of state-imposed limitations on and regulation of such practices on grounds of public order – as we see in cases such as Choudhury in (4) – or to protect the rights of others, as we see in cases such as Dahlab in (1). Here, the dilemma for the courts is to specify what constitutes both a recognized manifestation of religion or belief and an exceptional ground of limitation. In both cases, the jurisprudence in all jurisdictions reflects how, over time, the shape and content of the forum externum inevitably result in privileging the religious sensibilities, values, traditions and customs of the majority, which become intimately linked with the legal and political order. In this respect, there is a dynamic relation between the forum internum and forum externum, as the space demarcated by the state as both essentially religious and free from sovereign interference is increasingly entangled with, and indeed presumed by, what the state recognizes in the forum externum as falling within the right to manifest religion, conscience or belief. This dynamic generates the second great paradox of modern secular governance. Not only does the right to religious freedom lead to constant intervention and reconfiguration of substantive features of religious life; but the values and commitments of the religious majority become ever more suffused within the normativity of the public sphere as the norm against which the religious practices of minorities are then either recognized or limited. This is not the result of any malfeasance or bad faith on the part of the state. Rather, it is a product of the two propensities internal to modern political secularism of constructing the category of religion as a space free from state intervention on the one hand (forum internum) and increasingly regulating religious life on the other (forum externum). As Saba Mahmood observes: Secularism, in this understanding, is not simply the organizing structure for what are regularly taken to be a priori elements of social organization – public, private, political, religious – but a discursive operation of power that generates these very spheres, establishes their boundaries, and suffuses them with content, such that they come to acquire a natural quality for those living within its terms.71

The two primary grounds of limitation on the manifestation of religion or belief which we see embedded in the textual structure of virtually all modern human rights instruments in 70 Saba Mahmood and Peter Danchin, Immunity or Regulation? Antinomies of Religious Freedom, 113 The South Atlantic Quarterly 129, 154–55 (2015) (discussing how in the Izzat-Rushdie case the Administrative Court of Justice and Supreme Administrative Court construct the forum internum in different ways in terms of either “belief” or “religion,” the latter encompassing the collective identity and religious practices of distinct communities). 71 Mahmood, supra note 1, at 3.

92  Constitutions and religion fact mirror and trace their genealogies to the seventeenth and eighteenth century civil and philosophical Enlightenments discussed in Section 2 above. Each of these genealogies thus points us today to “how diverging histories and theories of state and subject coexist within the capacious language of freedom of conscience, submerging or reemerging in new ways to refract current contentious political conflicts.”72 The legal rubric of “public order” traces to the early modern civil Enlightenment tradition and the notion that regulation of worship is necessary to ensure civil peace and ameliorate the risk of conflict between rival religious communities. It is this underlying logic that animates the recent decisions of the ECtHR in (1). In cases such as Dahlab and subsequent cases such as Sahin v. Turkey,73 the ECtHR’s reasoning reflects a preoccupation not just to preserve individual freedom of religion (the rights of others), but to avoid religious conflict in the name of “denominational and religious neutrality.”74 But as we see in cases such as Lautsi, not all religious symbols – such as the crucifix – are axiomatically seen to threaten public order and social peace. As observed by Bhuta: The equation of Islamic religious practices with intolerance, discrimination and inequality could be understood as evincing a rationalist critique of religious values per se and a purely secular vision of democratic politics. But in Lautsi, this is not the case at all. When it comes to Christian values, their potential inconsistency with democracy, equality, and tolerance is never in doubt, revealing sharply the degree to which this line of cases rests not on a thoroughgoing rationalist secularism but on a political theology of Christian democracy in which the identity of democratic values with an imagined Christian civilizational tradition is unquestioned.75

Arguably more hegemonic in modern rights discourse, however, is the legal rubric of protection of the “rights of others” as a ground of limitation. This traces directly to the later eighteenth century Kantian liberal philosophical tradition and runs seamlessly through the religious freedom jurisprudence of the ECtHR. Thus, the wearing of a headscarf by a Muslim schoolteacher in Dahlab is said to pose a risk to both parents and children who may be “influenced or offended” in their own beliefs by such a powerful “external” symbol;76 whereas in Lautsi the compulsory display of the crucifix is said to be a “passive” religious symbol which “cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.”77

72 Nehal Bhuta, Two Concepts of Religious Freedom in the European Court of Human Rights, 113 The South Atlantic Quarterly 9, 11 (2014). 73 Leyla Sahin v. Turkey, no. 44774/98 [2005] E.C.H.R. 74 In Sahin, the ECtHR more explicitly accepts a line of Turkish jurisprudence which characterizes the headscarf as a symbol of political Islam and thus a direct threat to republican values and civil order in Turkey. See Danchin, supra note 17, at 35–39. 75 Bhuta, supra note 72, at 26. 76 “The court accepts that it is very difficult to assess the impact that a powerful external symbol such as the wearing of a headscarf may have on the freedom of conscience and religious of very young children [...] [I]t cannot be denied outright that the wearing of the headscarf might have some kind of proselytizing effect, seeing that it appears imposed on women by a precept which is laid down in the Koran.” Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 463 (“The Law). 77 Lautsi v. Italy, App. No. 30814/06 (GC, March 2011), at para. 72.

The modern architecture of religious freedom as a fundamental right  93 This Kantian mode of reasoning is what Ian Hunter has referred to as the “sacralization” of reason, which animates modern liberal rights discourse in the form of “public reason.”78 The effect has been the steady “rationalization” of religion as the process of constitutional and international rights-based adjudication has both strengthened and deepened. In many respects, however, this constitutional politics founded in moral self-governance in Kantian and Rawlsian modes remains in deep tension with the statist character of early modern liberalism and the project of maintaining external order by withdrawing civil power from the moral domain. 3.3

The Double Structure of the Right to Religious Freedom

If we view these two elements together, we can see that the double structure of the rationality of the forum internum on the one hand (religion as individual belief), and the reason of the forum externum on the other (manifestation of religion as subject to the demands of public reason), necessarily generates two interrelated paradoxes. First, by defining the secular neutrality of the public sphere in terms of the right to religious freedom as discussed in Section 2, the authority of religion is privatized relative to state authority and its normativity interiorized relative to individual subjectivity. Second, and as a result, religious freedom is secured through the subordination of religion to the secular power and public reason of the sovereign state as discussed in Section 3. In differing ways, in each case religion is not only “tamed,” but also “free.”79 By defining the meaning and scope of the freedom protected by the right in terms of secular neutrality, the claims of individuals and communities to religious liberty are in fact limited through a continuing praxis of legal recognition and regulation. Inevitably, this prioritizes the values and sensibilities of the majority religion through recourse to the secular concepts of public order and the rights of others with corresponding discriminatory implications for minority religious traditions. As Mahmood acutely observes: despite the commitment to leveling religious differences in the political sphere, modern secular governance transforms – and in some respects intensifies – preexisting interfaith inequalities, allowing them to flourish in society, and hence for religion to striate national identity and public norms.80

This normative structure is what generates the three key controversies concerning the subject, object and justification of the right discussed in Section 2. This becomes especially evident when the right to religious liberty becomes internally conflicted – that is, when both sides to the dispute assert their claims in terms of the right to religious freedom. Each of the paired cases in (1) to (5) reflects the dynamics of these tensions and propensities internal to political secularism and the right to religious freedom.

78 See Hunter, supra note 29; John Rawls, A Theory of Justice (1971); Id., Political Liberalism (1993). 79 Peter G. Danchin, Exceptional and Universal? Religious Freedom in American International Law, 3 Critical Analysis of Law 175, 178 (2016) (discussing religion as “tamed in the form of ‘inner conscience’ and free as a matter of ‘individual authority,’” but also tamed “under the constitutional authority of the state, but also free as a matter of normative right as an object of autonomous choice”). 80 Mahmood, supra note 1, at 2.

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4. CONCLUSION This chapter has argued that a distinctive bifurcated logic simultaneously grounds and shapes the normative structure of religious freedom as a modern constitutional right. Today, this logic is global and is shared across the Western/non-Western divide. Such a constellation of intelligibility has far-reaching implications for our understanding not only of the modern category of religion and conceptions of religious subjectivity, but also of conceptions of religious freedom understood as a fundamental right subject to the political rationality of the modern secular state. The paradoxes and antinomies we observe of constant state intervention in the domain of religion despite the norm of religious neutrality on the one hand, and the constant privileging of majoritarian values and sensibilities despite the norm of religious equality on the other, are thus neither accidental nor outside of the discursive operation of modern secular power.

PART II CONSTITUTIONAL COEXISTENCE: MODELS OF MANAGING RELIGION AND THE STATE

6. Constitutional models of law and religion relations in Western Europe Silvio Ferrari

1. INTRODUCTION Does a European model of religious freedom exist?1 Is it possible to speak of the right to freedom of religion in terms that apply equally to countries as diverse as Spain, Norway and the Czech Republic?2 The answer will differ depending on the level at which this question is analyzed. If the examination is based on the territorial state units into which Europe is divided, it is clear that there are significant differences. The history of Italy is different from that of Sweden; it is thus easy to understand that, at the national level, the right to freedom of religion reflects the variety that constitutes the wealth (and the drama) of Europe. However, if the question is examined at a continental level – that is, comparing Europe with Africa, Asia and America – these national differences are flattened out; it becomes clear that the distance between, say, France and the United Kingdom is far less than that between any European country and, say, India or China. This geopolitical approach, which considers the issue of freedom of religion by dividing the world into states and continents, must be further refined in order to be meaningful. It lacks a historical perspective and therefore cannot reflect the dynamics of change at play. Ideas (and consequently norms) have a tendency to migrate – to move from one place to another and, in the process, to change, assuming new meanings. The idea of, and the corresponding right to, religious freedom are no exception. Their roots can be traced back to different times and places; but – at least in the legal form that has been adopted in contemporary constitutions and international conventions – they originated in Europe and then spread to the Americas and subsequently to other parts of the world, with varying degrees of success. In modern times, the European model of religious freedom has thus become a transatlantic model, and to some extent a global model. At the same time, through the process of migration across the Atlantic, the right to freedom of religion has assumed different characteristics; and today – though it maintains the imprint of its European origins – it presents some specific traits in the United States and other American countries.3

1 Except where indicated, in this chapter the terms ‘Europe’ and ‘European’ refer to Western Europe. 2 On this topic, see Silvio Ferrari, The Legal Dimension, in Muslims in the Enlarged Europe. Religion and Society 219–54 (Brigitte Maréchal, Stefano Allievi, Felice Dassetto, and Jørgen Nielsen eds., 2003). For some critical considerations, see Veit Bader, The Governance of Islam in Europe: The Perils of Modelling, 33 Journal of Ethnic and Migration Studies 871–86 (2007). 3 See Peter Berger, Grace Davie and Effie Fokas, Religious America, Secular Europe? A Theme and Variations (2008); Gret Haller, The Limits of Atlanticism: Perceptions of State, Nation, and Religion in Europe and the United States 17–26 (2007).

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Constitutional models of law and religion relations in Western Europe  97 Other factors must be kept in mind when drawing a map of the right to religious freedom. One of these is colonialism, which has been a powerful tool for exporting the European model. The colonial experience not only involved the imposition of conceptions and regulations of religious freedom that were extraneous to the history and culture of colonized countries; more subtly, it also involved the internalization of such conceptions by large parts of the ruling classes of those nations. In this way, what was originally a European model of freedom of religion has become a global model, reflected in the constitutions of countries which do not have the same cultural backgrounds and historical experiences that fostered the development of this right in Europe. International law, and especially international human rights conventions, have played an important role in this process of globalization, giving a mantle of universality to rights that – at least in their formulation (but perhaps also in their content) – are marked by their Western origin.4 Equally significant is the hybridization of religious freedom models that has resulted from recent migration flows. The European model must now come to terms, in its native territory, with the growing presence of individuals and communities that view religious freedom in the light of historical, religious and cultural traditions that are very different from their European counterparts. In this way, immigration has brought an element of dynamism to the European landscape, contributing to the transformation of a model that was largely rooted in the Christian tradition.5 The increasing number of people who are not affiliated to any religious community is another significant element that is likely to affect the legal regulation of religious freedom in Europe. Finally, the dominant religious traditions of different countries and regions cannot be ignored. Each religion has its own specific conception (and often regulation) of religious freedom. In many cases, these have influenced – more or less profoundly – the legal discipline of religious freedom as codified in the constitutions of modern states. These legal texts would be incomprehensible if they were not read in light of the religious traditions that have informed the political and legal culture of a specific country or region. The map of religious freedom is therefore very complex and reflects the interactions between geographical spaces and historical processes, religious traditions and legal and political cultures. In this chapter, I shall first describe the main historical steps that led to the emergence of the concept and right of religious freedom in Europe. I shall then highlight the characteristics that differentiate the European model from those in other parts of the world. Finally, I shall devote some remarks to the internal variations of the European model, concluding with a few observations on its possible future.

2.

THE EMERGENCE OF THE RIGHT TO FREEDOM OF RELIGION IN EUROPE

In Europe, and subsequently throughout the West, the right to freedom of religion has taken shape in three stages, which correspond to its three fundamental dimensions.

See Johannes A. van der Ven, Human Rights or Religious Rules? 245 (2010). See Augustin Motilla (ed.), Immigration, National and Regional Laws and Freedom Religion (2012). 4 5

of

98  Constitutions and religion The institutional dimension, which has its deepest roots in the Christian dualism between God and Caesar, was the first to emerge. From this perspective, two authorities – one religious, the other political – guide the whole of humanity. Each has its own sphere of competence and jurisdiction: the first governs the spiritual, sacred, religious aspects of human life; the second the temporal, profane, political aspects. The Gelasian doctrine of the two swords provided the first theological formulation of this conception. Beginning from the Gregorian revolution of the eleventh century, it was legally translated into the notion of libertas Ecclesiae: the native right of the church to be free from any interference by the political power in its sphere of action, and therefore to enjoy full doctrinal and organizational autonomy. Over the centuries, this idea has fueled the conviction that church and state are two distinct entities, and that separation is the best way to regulate their relationship.6 The second stage in the emergence of the right to freedom of religion brought to light another dimension of this right: the individual dimension.7 Although this dimension dates back to the origins of Christianity, it came to prominence during the Lutheran Reformation. The essence of religion is identified through the relationship between each individual and God, without the need for any public or institutional intermediation. Consequently, freedom of religion is conceived as an individual right that primarily protects the conscience of each person, which constitutes a sort of “inner Church,” entitled to the same freedom from state control as is guaranteed to the “external Church.”8 The third stage of the development of the right to religious freedom took shape at the end of the eighteenth century, with the American and French declarations of rights – both inspired by the Enlightenment doctrines. The right to religious freedom is now seen as a human right – that is, a right that belongs to every human being simply because he or she is a person. As a universal right, freedom of religion must be granted to every individual, regardless of the religion that is professed. In this way, the right to freedom of religion is secularized. Previously, it was recognized only for the faithful of a particular church, on the assumption (accepted by the confessional states of the time) that the church possessed the monopoly on truth. This also explains why the followers of other churches and religions were excluded from this right. Today, the right to freedom of religion no longer guarantees any one church the freedom to proclaim the truth, because liberal states no longer consider any church or religion as the custodian of the truth. Churches and religions are instead regarded as subjects that propose competing conceptions of life and the world, and individuals are free to choose which they prefer (or none). In the modern age, freedom of religion guarantees individuals the right to seek their own personal truth without suffering any limitation of civil or political rights due to their religious or non-religious choices. This is the point at which the secular state and freedom of religion are linked, as emphasized on several occasions by Wolfgang Böckenförde.9 In Europe in the last two centuries, religious freedom has been granted through the secularization 6 See Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (1983); Hauke Brunkhorst, Critical Theory of Legal Revolutions: Evolutionary Perspectives 90 ff. (2014). 7 See Marie A. Failinger and Ronald W. Duty (eds.), Lutheran Theology and Secular Law. The Work of the Modern States (2018). 8 Steven D. Smith, The Rise and Decline of American Religious Freedom 25–28 (2014). 9 See Ernst W Böckenförde, Religion im säkularen Staat, in Kirche und christlicher Glaube in den Herausforderungen der Zeit. Beiträge zur politisch-theologischen Verfassungsgeschichte 1957–2002 425–38 (2004).

Constitutional models of law and religion relations in Western Europe  99 of law and public institutions; and in this sense, it is possible to affirm that it represents the measure of the secular state. The combination of these three dimensions of the right to freedom of religion plays a fundamental role in defining the position assigned to religion in the public sphere. The first dimension – underlining the distinction between religion and politics – has been legally translated into the principle of separation between church and state, contributing to the definition of the public sphere as a secular space. The second – by identifying the essence of religion with the believer’s personal relationship with God – led to the conception of freedom of religion as primarily an individual and private right. The third grants individuals the right to seek their own personal truth, be it religious or non-religious, without any consequence for their enjoyment of civil and political rights. These three dimensions converge in what constitutes the characteristic feature of the European model of religious freedom: the dissociation of religion and rights in the definition of public space. The result of this process is that the specific religions or beliefs of individuals no longer have an impact on their right to religious freedom. On the one hand, individuals have the right to profess and practice their chosen religion or belief; and the limits that restrict the manifestations of this right must be the same for all religions (a point that is not always respected in practice). On the other hand, individuals have the right to profess and practice their own religion without this affecting their enjoyment of civil and political rights, which belong to all citizens equally, regardless of religious or non-religious affiliations and beliefs. In this way, the secularization of the right to freedom of religion affects both aspects of this right: the positive (i.e. the right to profess and practice freely the religion of one’s choice), and the negative (i.e. the right not to suffer from discrimination due to the individual’s religious or non-religious choices).

3.

EUROPEAN AND NON-EUROPEAN MODELS OF FREEDOM OF RELIGION

As a result of this short analysis, it is possible to identify the central features of the European model of religious freedom. It is grounded on the principle that the law of the state – with its characteristics of uniformity and secularism – is the best instrument to ensure religious freedom, in both its positive and negative dimensions. On the one hand, the right to profess one’s religion or beliefs is guaranteed regardless of their content: in principle, the same rules apply both to the faithful of different religious communities and to individuals who profess non-religious beliefs. On the other hand, the right not to suffer from discrimination because of one’s religious or belief convictions is assured by providing all citizens with the same civil and political rights, regardless of the religion or beliefs they profess. In this system, legal uniformity and secularism go hand in hand. Diffidence toward legal pluralism combines with the accent on the secular nature of state law: both factors come into play in defining citizens’ legal status independently from their religious differences, which are considered a risk to the hegemonic, all-encompassing character of state law. In short, the right to religious freedom is situated within the framework of the notion of citizenship, which in contemporary Europe presupposes a state that is capable of guaranteeing the same legal status to all citizens,

100  Constitutions and religion regardless of their religious convictions.10 From this perspective, equality is the best way to ensure religious freedom, as it gives citizens the power to make their own religious choices in absolute freedom, safe in the knowledge that these choices will have no impact on the enjoyment of their civil and political rights.11 This background explains why, in Europe, there are no religion-based systems of personal laws (with the exception of Thrace; but in this case, the special regime for the Muslim community was largely imposed on Greece as part of a larger settlement concerning the definition of the border with Turkey following the collapse of the Ottoman Empire). Such systems were not unknown in European history, but they have progressively been abandoned on the premise that freedom of religion can be better granted through the equal treatment of citizens than through the legal recognition of religion-based diversity.12 In other parts of the world – and particularly in many regions of Asia and Africa – the right to freedom of religion is situated within a profoundly different framework, largely defined not by citizenship, but by religious affiliation. In these countries, the freedom of religion is based on the idea that diversity (instead of equality, as in Europe) is the best way to ensure liberty. From this perspective, systems of personal laws based on religious affiliation are seen as the best tools to grant citizens the right to manifest and practice their religious beliefs in different areas of life. This second model presents many variations, but its central pillar is legal pluralism based on religious affiliation; and its main characteristic is the recognition of different civil and sometimes political rights (as in Lebanon), according to the religions professed by citizens. While in Europe, religious freedom is granted through the link between state secularism and uniform law, in these countries the central link is between religion and legal pluralism.13 The connection between uniform law and state secularism is reflected in European constitutions. The constitutional provisions on the sources of law are a good indicator of the strength of this element. The question of the sources of law is strictly related to that of state sovereignty. If the most important attribute of sovereignty lies in the exercise of the legislative function,14 the role that a constitution attributes to religions or religious communities in the production of state law is a significant indicator of the status that is accorded to them in the juridical organization of power. Although not all constitutions contain clauses on the sources of law (which at times may be included in other legal texts), an examination of the constitutional provisions devoted to this argument reveals a significant difference between Europe and other parts of the world. No European constitution includes provisions that list the law of a religion among the sources of state legislation; while 17 non-European constitutions (all of them pertaining to countries in which Islam is the majority religion) list Sharia among the sources of state law.15

10 See Silvio Ferrari, Religious Rules and Legal Pluralism: An Introduction, in Religious Rules, State Law, and Normative Pluralism. A Comparative Overview 13–18 (Silvio Ferrari, Rinaldo Cristofori, and Rossella Bottoni eds., 2016). 11 See Frederick Mark Gedicks, Religious Freedom as Equality, in Routledge Handbook of Law and Religion 135–44 (Silvio Ferrari ed., 2015). 12 See Ferrari, supra note 10, at 13–18. 13 See Ferrari, supra note 10, at 10–13. 14 See Francis Hamon and Michel Troper, Droit constitutionnel 193 (2007). 15 See Silvio Ferrari, Constitution et religion, in Traité international de droit constitutionnel, v. 3, Suprématie de la Constitution 454–60 (Michel Troper and Dominique Chagnollaud eds., 2012). The data on constitutions and blasphemy contained in the paragraph concern all European states. On

Constitutional models of law and religion relations in Western Europe  101 Whatever the verdict on its impact on religious freedom, the reference to Sharia introduces an element of legal pluralism. Religious law (in this case, Islamic law) limits the legislative power (and therefore the sovereignty) of the state, which is obliged to take into account the legislative power and sovereignty of another subject – God.16 The direct efficacy that the norms of Sharia can have in the legal systems of some countries (e.g. Saudi Arabia), and the control to which the laws of the state are subject to ensure that they respect religious norms in others,17 confirm this statement. An analysis of the preambles of the European constitutions clearly illustrates the significance of state secularism.18 Comparative analyses of constitutions often tend to overlook the preambles because of their limited legal value. However, this omission is not possible when dealing with religion – as demonstrated by the fierce debate around the opportunity to insert, in the preamble of the constitutional treaty of the European Union, a reference to the Christian roots of the Old Continent. The preambles reveal the ideals and values that inspired the constitutions, and the mention of God or religion among the values and principles that inspired a constitution provides an initial indication of the orientation that a state intends to follow: it would be surprising, for example, if a preamble in which the secular nature of a state was declared were followed by a provision proclaiming the existence of a state religion. Not all constitutions open with a preamble: just under one-fifth do not have one.19 Of those with a preamble, more than 40 percent include no reference to God or religion.20 In percentage terms, these constitutions with a “silent” preamble are more common in Europe (67 percent of all European constitutions with a preamble) than elsewhere (36 percent). A second group of constitutions contain a reference to religion or divinity formulated in general terms, so that the God that is invoked is not identifiable with that of a particular religion. Again, there is a significant difference between Europe (only 18 percent of the European constitutions are included

the insertion of Islamic law among the sources of law, see in general Bassam Tibi, Islamic Shari’a as Constitutional Law? The Freedom of Faith in the Light of the Politicization of Islam, the Reinvention of the Shari’a and the Need for an Islamic Law Reform, in Church and State Towards Protection for Freedom of Religion, the Japanese Association of Comparative Constitutional Law 126–70 (2006), and the bibliography cited therein. 16 The idea that only God has sovereignty and the power to make laws is stated explicitly in some constitutions: see Arts. 2 and 56 of the Iranian Constitution and the preamble of the Pakistani Constitution. It constitutes a cornerstone of the models of Islamic constitution drawn up by the University of Al-Azhar (1979) and by the Islamic Council of Europe (1983): on them, see Agostino Cilardo, I diritti dell’uomo, la concezione di sovranità e potere secondo il diritto islamico, in Il dialogo delle leggi. Ordinamento giuridico italiano e tradizione giuridica islamica 110–11 (Ida Zilio-Grandi ed., 2006). 17 Some constitutions entrust this task to the courts (Egypt: see Sabine Lavorel, Les constitutions arabes et l’islam. Les enjeux du pluralism juridique 119–23 (2005)); others provide for the creation of an ad hoc body (Iran, Arts. 4 and 91; Pakistan, Art. 203c); and in some cases, the creation of a body with only consultative powers is established (Algeria, Art. 171; Mauritania, Art. 94; Pakistan, Arts. 228–30). 18 For an analysis of the constitutional preambles, see Wim Voermans, Maarten Stremler and Paul Cliteur, Constitutional Preambles. A Comparative Analysis (2017). 19 There are 36 constitutions with no preamble. Therefore, the following data concerns 156 constitutions. See Ferrari, supra note 15, at 442. 20 There are 66 constitutions with a “silent” preamble: they amount to 42 percent of the constitutions with a preamble. See Ferrari, supra note 15, at 442.

102  Constitutions and religion in this group) and the rest of the world (38 percent).21 Other preambles incorporate a reference to a “specific” God or religion: here the gap between Europe and the other countries becomes much wider. Only 9 percent of the European constitutions present this type of reference, against 21 percent of non-European constitutions.22 A second area where the specificity of the European model is clearly visible concerns provisions which forbid the recognition of a religion or a church – whether official, established or a state religion or church (in some cases different expressions are used, but the meaning is the same). The percentage of European constitutions that include these provisions (ten constitutions – that is, 21 percent of the total) is higher than the percentage of non-European constitutions (17 percent). An analogous remark concerns provisions that affirm the separation between states, religions and religious communities. More than 23 percent of European constitutions opt for a regime of separation, against 14 percent of constitutions of the remaining countries. Finally, the existence of a religion or a church that is constitutionally defined as a national, established, official, dominant or state religion or church is declared in seven European constitutions (15 percent of all European constitutions) and in 27 non-European constitutions (19 percent).23 This data clearly shows the difference between the prevailing constitutional models of religion-state relations in Europe and in other parts of the world. It comes as no surprise, then, that this difference is reflected in provisions that regulate freedom of religion, affecting both its positive and negative profiles. Starting from the former and limiting the analysis to criminal law, the data provided by the Pew Research Center shows that apostasy is forbidden in 25 countries around the world, none of which are in Europe. Proselytism is punished in 66 countries, of which only 11 are in Europe; and blasphemy in 50 countries, of which seven are in Europe. In all these cases the percentage of European states that criminalize apostasy, proselytism and blasphemy is lower than that in the rest of the world.24 It is interesting to note that the data concerning the American countries is similar to the European data. The American model of freedom of religion is closer to the European model than to those of Africa or Asia. This seems to be an argument in favor of how significantly the common Christian background influences countries that otherwise are very different in terms of social and cultural conditions. An assessment of the influence of different religious traditions on the legal regulation of freedom of religion is beyond the scope of this chapter. However, no exhaustive analysis of the constitutional rules concerning this right can be conducted without taking into account this element. Moving to the negative dimension of religious freedom, other important differences emerge. In many non-European countries, the faithful of different religions enjoy different civil and political rights. Family law shows clearly how wide these differences are. The regulation of the celebration and dissolution of marriage, parental rights, adoption and succession depends to a significant extent on the religion professed by spouses, parents and family members. In See the data provided by Ferrari, supra note 15, at 442–44. See Ferrari, supra note 15, at 444–45. 23 For this data, see Ferrari, supra note 15, at 460–65. 24 For the data concerning apostasy and blasphemy, see www​.pewresearch​.org/​fact​-tank/​2016/​07/​ 29/​which​-countries​-still​-outlaw​-apostasy​-and​-blasphemy/​, last accessed May 15, 2020; for proselytism, see Question GRI.Q.6 in Pew Research Center, Religious Hostilities Reach Six Years High (January 14, 2014), Appendix 6: results by Countries, in www​.pewresearch​.org/​wp​-content/​uploads/​sites/​7/​2014/​01/​ RestrictionsV​-results​-by​-country​.pdf , last accessed May 15, 2020. 21 22

Constitutional models of law and religion relations in Western Europe  103 Europe, all these legal institutions are regulated in uniform terms for all citizens, regardless of religious faith.25

4.

FREEDOM OF RELIGION IN EUROPE – WHAT FUTURE?

The main question mark concerning the European model of religion-state relations and regulation of freedom of religion may be summarized in the following terms: is the secular state capable of managing the increasing religious plurality of Europe? From a historical point of view, the secularization of the political and legal systems has put an end to religious conflicts in Europe. This has been possible because Christianity – that is, the dominant religion of the land – did not exclude the possibility of secularization.26 As we have seen, the European model of religious freedom presupposes the secularization of this right, which has an autonomous foundation in the human rights system and is granted independently from the religion that is professed. Today, Europe is increasingly populated by individuals and communities that are less familiar with and less sympathetic to a secular configuration of the public sphere. In their traditions, the foundation of freedom of religion is not secular; it is religious. Freedom of religion is ensured according to and within the limits of the religion they profess. Can Europe face the challenges presented by religious diversity and, more specifically, by this different conception of freedom of religion? This question cannot be answered by focusing on secularization only. The European model has another central component: legal uniformity. Therefore, the question may be reformulated in the following way: how much internal diversity does the European model of the secular state tolerate? The future of freedom of religion in Europe largely depends on this answer.

5.

EUROPEAN MODELS OF FREEDOM OF RELIGION OR BELIEF

The gap that divides Europe and other parts of the world in the regulation of religious freedom should not obscure the existence of different legal models within Europe. An analysis of the constitutional provisions specifically devoted to freedom of religion is not very helpful to ascertain the diversities that affect the structure of the religion-state relationship. A clearer perspective on the internal variations of the European model is afforded by the regulation of freedom of religion or belief in some key areas of states’ legal systems. Here different national traditions maintain their weight and the regulation of freedom of religion (particularly in its collective dimension) largely depends on the historical, cultural and social background of each country. An examination of the different systems of regulation of freedom of religion in Europe reveals at least three distinct models, each based on a different principle. These models will be discussed in the following pages with reference to some national legal systems. However, On this difference see Ferrari, supra note 10, at 15. See Silvio Ferrari, The Christian Roots of the Secular State, in Mapping the Legal Boundaries of Belonging. Religion and Multiculturalism from Israel to Canada 25–40 (René Provost ed., 2014). 25 26

104  Constitutions and religion none of these models may be identified with a specific country. Although one may be stronger in some places and weaker in others, they cut across state borders and frequently overlap in the same country. 5.1

The Model of Laïcité

The first model is based on the understanding that there is a set of secular principles and values – liberty, equality, tolerance and so on – that have sufficient appeal to bond all citizens, providing a shared ground to manage diversity and build a cohesive society. These principles and values are the “civil religion” of the country and must be accepted by all its inhabitants, independently from their religious affiliations, ethnic membership, political opinions or cultural traditions. From this perspective, religion is often regarded with some distrust as a potentially divisive factor: hence the impulse to limit its presence in the institutional and more generally public space. This model was on the rise until the end of the last century, concomitant with the understanding that religion was eventually bound to lose much of its public significance. However, this prediction has not been fulfilled; and today the supporters of this secular model are divided between those who favor a “soft” or “inclusive” laïcité, and those who think laïcité should be defended in its integrity, as it is the last bastion against the reconfessionalization (and particularly, in the opinion of many, the Islamization) of Europe. The country in which this secular model is most clearly in evidence is France. In this country, laïcité is conceived as a general principle that can include and reconcile the particular values of the religious, racial, ethnic, cultural and political communities living in the country. From this perspective, laïcité is seen as a cluster of universal and abstract values that all citizens and groups must embrace, independently from their origins, preferences and affiliations. Citizenship is built on these values and, consistently with this approach, the contract “d’intégration républicaine” establishes that before entering France, each immigrant must follow a training programme where laïcité figures prominently among “les valeurs de la République,” next to “liberté, ègalité et fraternité.”27 These central components of the French model shape relations between the state and religions. Three examples confirm this statement. In the field of education, the curriculums of French schools (with the exception of Alsace and Moselle) include neither the teaching of religion nor teaching about religion. This is an exceptional case in Europe, as all EU states and almost all European countries include religion in the school curriculum as a compulsory or optional subject.28 Second, France is spearheading the fight against new religious movements at the European level: laws have been enacted and a governmental body has been created to combat sects and the “derive sectaires.”29 Finally, with regard to religious symbols, France has taken a very clear-cut position by passing a law that prohibits the wearing at school of religious symbols that are highly visible and another that bans the full-face veil in all public spaces.30 27 See www​.immigration​.interieur​.gouv​.fr/​Accueil​-et​-accompagnement/​La​-nationalite​-francaise/​La​ -charte​-des​-droits​-et​-devoirs​-du​-citoyen​-francais, last accessed May 15, 2020. 28 See Luce Pépin, Teaching about Religions in European School Systems: Policy Issues and Trends (2009). 29 See Susan Palmer, The New Heretics of France: Minority Religions, la Republique, and the Government-Sponsored “War on Sects” (2011). 30 See John R. Bowen, Why the French Don’t Like Headscarves: Islam, the State, and Public Space (2006). The ban of religious symbols has been recently strengthened both at school (see

Constitutional models of law and religion relations in Western Europe  105 There is a link between the secular conception of national identity that prevails in France and these legal and political choices. If national identity must be built around the notion of laïcité, “it is the role of the state to create laïque citizens”31 by educating them on the values of laïcité and shielding them from the competing values upheld by religions. This attitude explains the exclusion of the teaching of religion from school curriculums, the prohibition on wearing religious symbols in schools and the need to protect citizens from the threat to their freedom posed by the new religious movements. Through these prohibitions, the secular state safeguards the religious neutrality of the public space and the equality of citizens, irrespective of their religious convictions. The other side of the coin, which confirms the link between secularism and systems of uniform state law, is the rigid exclusion of any form of legal pluralism. France is one of the European countries that are less sympathetic to minority rights, as indicated by its reluctance to sign the Framework Convention for the Protection of National Minorities.32 Whether the French model can cope with the two driving forces that are changing the European religious landscape – the increasing plurality of religions and their increasingly public character – is open to discussion. The distinctive characteristic and strongest point of this model consists in stressing that public institutions must be secular, to avoid the impression that they identify with a specific religion or with religious versus non-religious worldviews. In spite of the criticisms, the “neutrality” of public institutions can perform a helpful role in a religiously diversified society and is therefore a principle that deserves to be safeguarded and reaffirmed. However, to achieve this goal, manifestations of religion are sometimes pushed to the margins of public life, trespassing the border between institutional and social secularization. As a consequence, the French policy raises some doubts about the respect of the positive dimension of freedom of religion, which is sometimes sacrificed to the need to affirm the “neutrality” of the state and its institutions. According to many analysts, abandoning its extensive interpretation of secularism and moving toward an “open” or “friendly” laïcité is the most promising route that France can take.33 5.2

The Majority Religion Model

The second model is based on the role that a specific religion – in most cases Christianity, the majority religion in Europe – has played in the formation of a country’s national identity. As this role is an undeniable historical fact, some claim that the majority religion is entitled to preferential legal status, and that the privileges it enjoys do not infringe the prohibition of discrimination on the basis of religion, as they protect a central component of a nation’s historical and cultural heritage.

www​.thelocal​.fr/​20180531/​six​-rules​-from​-the​-french​-governments​-new​-school​-secularity​-guidelines, last accessed May 15, 2020) and in other public institutions (see http://​en​.rfi​.fr/​france/​20180125​-french​ -parliamentarians​-banned​-wearing​-religous​-symbols, last accessed May 15, 2020). 31 Berger, Davie and Fokas, supra note 3, at 76. 32 France is one of four European countries that have neither signed nor ratified the Convention. 33 The address given by the French President Emmanuel Macron on April 9, 2018 (see Transcription du discours du Président de la République devant les Evêques de France, at www​.europe​-solidaire​ .org/​spip​.php​?article44044 , last accessed May 15, 2020) has been read in this sense by many political observers.

106  Constitutions and religion This model is in evidence in a recent Bavarian law ordering that the crucifix be displayed in every public building;34 and in the law amending the preamble of the Hungarian Constitution, which now explicitly recognizes “the role Christianity has played” in preserving the nation.35 These reforms are an expression of the nationalistic wind that is blowing in many European countries. Stressing a nation’s Christian roots is a way to protest against the secular project of unification of Europe pursued by European Union “bureaucrats.” It also plays the (politically valuable) card of furthering the struggle against Islam, whose public manifestations can easily be labelled as incompatible with the Christian national tradition. As it gives voice to the concerns of a growing number of citizens, this model is increasingly likely to be followed by European countries – particularly those with an Orthodox or in some cases a Catholic tradition. Italy is one country in which this model prevails. At the core of the Italian model is an attempt to govern the country’s ethical, cultural and religious plurality through the values of Catholicism, elevated to the rank of civil religion. More precisely, Catholicism supplies the cultural and ethical principles on which full citizenship is based: provided they are prepared to accept this condition, non-Catholics can fully enjoy religious freedom rights (although not religious equality rights). Governing diversity by stressing (Catholic) identity is the delicate balancing act that Italy is trying to achieve. The debate on the crucifix exemplifies the Italian approach to the problems of social plurality and fragmentation. In Italian public schools, a crucifix must be displayed on the walls of every classroom. Faced with requests to remove it, the Italian courts have stated that the crucifix is not only a religious symbol, but also a symbol of Italian identity: it reflects the historical and cultural traditions of Italy and represents a value system based on freedom, equality, human dignity and religious tolerance. As citizenship is grounded on these same values, which must be respected by everybody, the presence of the crucifix in the classroom cannot be made dependent on the religious convictions of students or teachers. These decisions express in legal terms the idea – supported by most of the Catholic hierarchy, the country’s political parties and public opinion – that the Catholic tradition is Italy’s civil religion and provides the fundamental principles and values on which social cohesion is founded. If we now consider the same points that were examined in relation to France, the impact of the two models on religion-state relations becomes clear. In Italian public schools, the teaching of Catholicism is compulsory, in the sense that the state is obliged to provide it – although attendance is optional, at the discretion of students or their parents. Other religions can be taught, but only on the request of students, and teachers of other religions are not paid by the state (unlike teachers of Catholicism).36 In Italy, there are no specific laws on new religious movements and no official institution that controls them: but these movements nonetheless do not enjoy the same legal status as other religious communities. Finally, the symbols of minority religions – such as the Islamic headscarf, the Jewish kippa and the Sikh turban – are not a matter of concern in Italian schools; instead, the public debate has focused on the symbols of

34 See https://​edition​.cnn​.com/​2018/​06/​01/​opinions/​bavaria​-cross​-rule​-opinion​-ghitis/​index​.html, last accessed May 15, 2020. 35 See https://​tasz​.hu/​files/​tasz/​imce/​alternative​_translation​_of​_the​_draft​_constituion​.pdf last accessed May 15, 2020. 36 See Marco Ventura, Religion and Law in Italy 533 ff. (2017).

Constitutional models of law and religion relations in Western Europe  107 the majority religion. When those symbols were threatened, almost everyone – from the president of the Republic to the mayor of the smallest village – felt compelled to defend them.37 This picture reveals that, to a certain extent, minority religions are sheltered by Catholicism against the harshness of the “laïcité à la française” and indirectly benefit from the dominant position of Catholicism in Italian society. However, this comes at a price: the integration of non-Catholic religious communities in Italian society depends on an acceptance of the dominant position of Catholicism as the country’s civil religion. As some scholars have underlined, “the cross in Italy’s state school is the main defender of the headscarves of Muslim pupils”: but non-Catholic religions must accept “the Catholic Church’s role of gate-keeper” of Italian identity.38 The Italian model of the secular state is different from the French model, in that it takes into account the historical weight of the country’s religious tradition and translates this into a set of cultural principles and values on which to build citizenship and social cohesion. The legal system reflects the social presence of the Catholic Church, which is stronger in Italy than in France and in other European countries. The weight of the country’s Catholic background prevents the construction of a “neutral” public space from which religions are excluded. To some extent, non-Catholic religious communities also benefit from this inclusive attitude. However, such inclusion is not on an equal footing: state support of religious communities is selective and privileges Catholicism. This is the main weakness of the Italian model when it comes to freedom of religion. Its negative profile – the right to nondiscrimination on the basis of religion – implies that the gap between the Catholic Church and the other religious communities should not become too wide; but this is not always the case. For example, in some parts of Italy, restrictions on the right to build places of worship apply to all religions except Catholicism. In a future characterized by the growing presence of non-Christian immigrants, these measures may become untenable and raise tensions that could ultimately result in the collapse of the whole system. 5.3

The Multi-Religious Model

Both the French and the Italian models are based on a presupposition that social cohesion requires a homogeneous set of values – whether secular or religious – shared by a majority of citizens and reflecting the country’s prevailing identity (laïcité in France; Catholicism in Italy). By contrast, the English model is inspired by the conviction that this type of homogeneity is an outdated legacy of the past: in a multicultural and multireligious society, social cohesion must be founded on different and even competing sets of values, provided that these remain within the boundaries of the human rights framework. This model entails some degree of dissociation between the national state, seen as the site of loyalty; and the different cultural, ethnic and religious communities that live within it, seen as the site of identity.39 37 Susanna Mancini, The Power of Symbols and the Symbols as Power: Secularism and Religion as Guarantors of Cultural Convergence, 30 Cardozo Law Review 2629–68 (2009). 38 Alessandro Ferrari, Religious Education in a Globalized Europe, in Religion and Democracy in Contemporary Europe 119 (Gabriel Motzkin and Yochi Fisher eds., 2008). 39 The distinction between loyalty and identity is made by Hanne Petersen, Beyond National Majority/Minority Dichotomies: Towards Legal Traditions and Religions of World Society, in Law and Religion in the 21st Century. Nordic Perspectives 321–44 (Lisbet Christoffersen, Kjell Ǻ. Modéer and Svend Andersen eds., 2010), speaking of the situation in the Nordic countries before the nineteenth

108  Constitutions and religion The first element to be taken into consideration when analyzing the English model is the weakness of the Westphalian state in the age of post-modernity. At least to a certain extent, the state recognizes its inability to forge the identity of its citizens and limits itself to providing a legal framework for the peaceful coexistence of different individuals and groups in a plural society. The debate in England about “what it means to be English” and the weak concept of “Englishness” are symptomatic of this transformation.40 The task of promoting commitment, solidarity and responsibility – the ingredients that constitute a collective identity – is largely left to individual communities, in which it is still possible to experience the feeling of belonging that was once provided by the nation. Legal pluralism, without which these communities cannot develop and maintain their collective identities, is integral to this model. It is no coincidence that the debate on alternative dispute resolution is much more advanced in England than in any other European country.41 As in the case of France and Italy, the English system of religion-state relations reflects this background. In state schools, religious education involves the teaching of all religions – which differs from both the Italian teaching of one religion and the French teaching of no religion.42 It is equally significant that the presence of different religious symbols in the public space – from the Sikh turban to the Muslim scarf – is so pronounced (much more so than in Italy and especially in France);43 and that new religious movements have been accepted without excessive concern.44 Interestingly, this is despite the fact that England has an established church, where the sovereign is the head of the Church of England and bishops (appointed by the sovereign) have a seat in the House of Lords. From a strictly legal point of view, the state in England is much less secular than in Italy and especially in France; but from a sociological and cultural perspective, the situation is the reverse – the Catholic tradition of Italy is stronger than the Anglican tradition of England. However, the English version of the secular state is very different not only from the Italian version, but also from the French version: while the latter is secular through the exclusion of religion from the public space, the former is secular through the inclusion of different religions in the public space. Equal treatment of citizens is granted through (limited) recognition of their religious specificities – as is shown, for example, by the recent development of faith schools.

century, when “loyalty was probably more important than identity. Ordinary people would identify with neither God nor King, but they might seek privilege and protection from these sources of authority by showing obedience, loyalty and faith.” 40 On this debate, see Krishan Kumar, The Idea of Englishness, English Culture, National Identity and Social Thought (2015); Robert Colls, Identity of England (2002). 41 See Rowan Williams, Civil and Religious Law in England, 10 Ecclesiastical Law Journal 262–82 (2008). On the debate about legal pluralism in the United Kingdom, see Rubya Mehdi, Hanne Petersen, Erik Reenberg Sand and Gordon R. Woodman (eds.), Law and Religion in Multicultural Societies (2008), in particular the contributions of Werner Menski, Law, Religion and Culture in Multicultural Britain (at 43–62) and Prakash Shah, Religion in a Super-Diverse Legal Environment: Thoughts on the British Scene (at 63–82). 42 See Pépin, supra note 28, at 63–67. 43 Daniel J. Hill and Daniel Whistler, The Right to Wear Religious Symbols (2013). 44 See Eileen Barker, General Overview of the ‘Cult Scene’ in Great Britain, in New Religious Movements in the 21st Century 22–28 (Phillip Charles Lucas and Thomas Robbins eds., 2004); Anthony Bradney, New Religious Movements: The Legal Dimension, in New Religious Movements: Challenge and Response 81–100 (Bryan Wilson and Jamie Cresswell eds., 1999).

Constitutional models of law and religion relations in Western Europe  109 It is difficult to assess the prospects of success of the English experiment. Its most interesting feature is an attempt to distinguish between social cohesion and cultural homogeneity: in a multicultural society, social cohesion is founded less on a shared set of values and more on a common interest in a legal framework within which different ethnic, religious and cultural groups can flourish. This framework is provided by human rights; and sometimes the concern to preserve this framework has led to the rigid implementation of the principle of nondiscrimination – as seen, for example, in Ladele v. London Borough of Islington and R(E) v. Governing Body of JFS. Sometimes, the capacity to resist the centrifugal forces generated by religious plurality has been questioned and a more “muscular liberalism” invoked. Although the United Kingdom is the European country that has gone furthest in building a multicultural, multireligious society, it remains to be seen whether this is the right response to the challenges of religious diversification.

6. CONCLUSION In the coming years, it is likely that the right to religious freedom will be the source of increasingly significant conflicts in Europe. Most European constitutions still regulate freedom of religion as the right of every individual, regardless of the religion being professed. However, this approach – which is a byproduct of the secularization of European legal systems – cannot be reconciled with the conviction that some religions, or at least some religious practices, are incompatible with Europe’s Christian and secular traditions. At the level of infra-constitutional law, this conviction has already been translated into law, especially with reference to Islam. In a number of countries, restrictions have been imposed on the construction of mosques or the use of some religious symbols in the public space; in others, the granting of citizenship has been subordinated to the signing of commitments that may conflict with an individual’s religious convictions. In the coming years, these limitations of religious freedom may find some kind of endorsement in the constitutions of the European states (as already happened in the Swiss one). These transformations of the legal discipline of freedom of religion are largely due to the convergence of two different dynamics. On the one hand, the scope of freedom of religion tends to be limited by the urge to grant security, which has made the regulation of this right more restrictive in most European countries. Until a couple of decades ago, national legal systems were slowly but steadily converging toward an expansive notion of freedom of religion, open to the inclusion of all individuals and communities under the umbrella of a secular conception of this right. Today, the point of convergence is the fight against religious extremism and radicalization, which informs the distinction between “good” and “bad” religious communities; and the assurance of the freedom of religion to the former, but only to a limited extent to the latter. On the other hand, the structure of the right to freedom of religion is affected by the resurgence of nationalisms, which are frequently linked to the exploitation of religion or secularism (depending on the prevailing cultural tradition) to consolidate policies aimed at supporting (real or fictitious) national identities. This trend, which is gaining ground everywhere, has consolidated the models of the secular state discussed in the previous pages, driving countries such as France and Italy to emphasize the unifying function of laïcité in the former case and Catholicism in the latter. At the same time, this thirst for identity that is feeding nationalistic forces across Europe is also increasing mistrust in the multicultural,

110  Constitutions and religion multi-religious model that represents a secular alternative to the identification between the culture of a country and the religion of its citizens. What is happening in Europe is a response to transformations that are affecting the entire planet. They are rooted in the processes of globalization, migration flows and the decline of the great secular ideologies, which have created a gap filled by religious faiths. However, the general framework within which the debate on freedom of religion is taking place in the Old Continent is more problematic than in other parts of the world. The process of European unification has been blocked and this impasse is fueling the claims of individual member states; the gap between Northern Europe and Southern Europe is widening; the feeling that Europe has entered a spiral of decline – confirmed by many demographic, economic and political indicators – has become widespread and is reinforcing resentment toward immigrants; and instances of religiously motivated violence are fueling demands to regulate religious freedom more restrictively or to assure it in differentiated terms that privilege a country’s mainstream and traditional religions. The solution to this crisis requires us to answer the question that has already been posed in this chapter: is the secular state capable of managing the increasing religious and cultural plurality of European countries? Given the philosophical, political and legal background of Europe, I would answer this question in the affirmative, provided that one point is clear: the core of the secular state is the equal freedom of all religions or Weltanschauungen, and the non-identification of the state with any of them. Once this is ensured, each European country should be free to adopt the model of the secular state that best corresponds to its tradition.

7. Constitutionalism and religion in common law North America1 Dia Dabby and Jean-François Gaudreault-DesBiens

1. PREMISE At first glance, Canada and the United States may share more than a border when it comes to religious freedom.2 However, upon closer examination, subtle yet significant differences emerge between these two countries, resulting from distinct constitutional and historical trajectories. This chapter first seeks to contextualize religion in Canada and the United States. It then sets out particular “transversal” frameworks used to grasp religious phenomena. Lastly, it draws out particular sites of divergence or convergence between these countries to illuminate the interplay of constitutionalism and religion.

2.

CONTEXTUALIZING RELIGION IN CANADA AND THE UNITED STATES

Although Canada has close to one-tenth the inhabitants of the United States, the countries’ populations resonate in terms of the place of religious diversity in society.3 Three salient points must be mentioned here: (1) there is a two-thirds Christian majority in both countries;4 (2) there is a similarly growing contingent of religious “nones” (23.9 percent in Canada;5 22.8 percent in the United States);6 and (3) rates of immigration are changing the face of both Canada (21.9 percent of the population was foreign-born in 2016)7 and the United States (where 13.5 percent 1 We limit our study in North America to Canada and the United States because they share a common law tradition. We acknowledge, however, the presence of mixed jurisdictions in both countries (Quebec and Louisiana). We are grateful to Vanessa Ntaganda for research assistance. 2 “Religious freedom” emanates from the American constitutional context, whereas “freedom of religion” is derived from the Canadian constitutional context. 3 In 2016, Canada’s population was just over 35 million, according to Statistics Canada, Canada at a Glance 2017, www​.statcan​.gc​.ca/​pub/​12​-581​-x/​2017000/​pop​-eng​.htm, last accessed May 6, 2020. By contrast, the American population is around 326 million, according to the United States’ Census Bureau, www​.census​.gov/​data​.html. 4 Pew Research Centre, Religious Landscape Study (2014), www​.pewforum​.org/​religious​-landscape​ -study/​#religions (70.6 percent Christian), last accessed May 6, 2020; Statistics Canada, Immigration and Ethnocultural Diversity in Canada (2011), www12​.statcan​.gc​.ca/​nhs​-enm/​2011/​as​-sa/​99​-010​-x/​99​-010​ -x2011001​-eng​.cfm​#a6 (67.3 percent Christian), last accessed May 6, 2020. 5 Pew Research Centre, supra note 4, www​.pewforum​.org/​religious​-landscape​-study/​#religions (22.8 percent marked as unaffiliated or religious “nones”), last accessed May 6, 2020. 6 Statistics Canada, supra note 4, www12​.statcan​.gc​.ca/​nhs​-enm/​2011/​as​-sa/​99​-010​-x/​99​-010​ -x2011001​-eng​.cfm​#a6 (23.9 percent had no religious affiliation), last accessed May 6, 2020. 7 Statistics Canada, Immigration and Ethnocultural Diversity: Key Results from the 2016 Census (2016), www​.statcan​.gc​.ca/​daily​-quotidien/​171025/​dq171025b​-eng​.pdf, last accessed May 6, 2020.

111

112  Constitutions and religion of the population was foreign-born in 2015).8 In the context of shifting religious boundaries and increasing diversity – and hence the importance of disaggregated data when looking at the space that religion occupies – it is evident that religion’s place is at once foundational and tenuous in the two countries’ constitutional frameworks. Despite some resemblances, there is an intermingling of national and religious identities in the United States that does not find a constitutional foothold in the Canadian context.9 Religion is arguably part of the initial constitutional conversation in both the United States and Canada; however, its evolution in each country has been distinct. Indeed, the protection of religion in the American Bill of Rights is twofold: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”10 The First Amendment offers a two-pronged protection, namely the right to religious freedom (“free exercise clause”) and the prohibition of a state-imposed or sanctioned religion (“anti-establishment clause”).11 American authors have been critical of the very meaning of these words – “establishment”, “religion” and “free exercise” – which have been tracked as being unstable through the jurisprudence.12 Religious freedom, albeit tenuous in terms of content, constitutes nevertheless a significant “founding myth” in American public rhetoric.13 This can be understood through the initial European inhabitants of the United States, who had fled persecution in Europe. By contrast, while religion has been part of the seminal constitutional conversation in Canada, its constitutional entrenchment has occurred in a more piecemeal manner.14 This reflects the singular patterns of relationships between settler nations and the careful balance between religious minorities. The most significant example of this cautious crafting occurred in Section 93 of the Constitution Act, 1867,15 which recognized the education rights of religious minorities in the founding provinces – a debate that is still a going constitutional 8 Migration Policy Institute, Frequently Requested Statistics on Immigrants and Immigration in the United States, Table 1 (Numerical Size and Share of the Foreign-born Population in the United States, 1970–2015), which tabulated data from the U.S. Census Bureau’s 2010 and 2015 American Community Surveys, and 1970–2000 decennial Census, www​.migrationpolicy​.org/​article/​frequently​-requested​ -statistics​-immigrants​-and​-immigration​-united​-states​#CurrentHistoricalNumbers, last accessed May 6, 2020. 9 A Grzymała-Busse, Nations Under God: How Churches Use Moral Authority to Influence Policy 228 (2015). One such example is the American pledge of allegiance, which is both to the flag and God. 10 U.S. Const. amend. I. 11 In addition to the aforementioned constitutional protections, the Religious Freedom and Restoration Act of 1993 (RFRA) (Pub. L. No. 103-141, 107 Stat. 1488, codified at 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4) is a federal law which safeguards a person’s exercise of religion, except when faced with compelling governmental interest (42 U.S. Code § 2000bb-1). We will return to the RFRA later on in this chapter. 12 See Mark Tushnet, Mark A. Graber and Sanford Levinson (eds.), The Oxford Handbook of the U.S. Constitution (2015), at 608, citing Kent Greenawalt, Religion and the Constitution, Volume 1: Free Exercise and Fairness (2008); Kent Greenawalt, Religion and the Constitution, Volume 2: Establishment and Fairness (2008). 13 T. Jeremy Gunn, Under God by not the Scarf: The Founding Myths of Religious Freedom in the United States and laïcité in France, 46(1) Journal of Church and State 10 (2004). 14 Both the Treaty of Paris (1763) and the Quebec Act (1774) recognized early rights to Catholics under British rule; Anglicans were also afforded particular constitutional protection. See Benjamin L. Berger, Freedom of Religion, in The Oxford Handbook of the Canadian Constitution 755−76 (Peter Oliver, Patrick Macklem and Nathalie Des Rosiers eds., 2017). 15 Constitution Act, 1867 (U.K.) 30 and 31 Vict, c 3, reprinted in RSC 1985, App II No 5.

Constitutionalism and religion in common law North America  113 concern.16 This “fundamental compromise of Confederation,”17 which facilitated religious minorities’ control over education in the provinces, had one striking exception: namely the federal government’s control over Aboriginal peoples’ education via the residential schools system.18 While confederation recognized the rights of certain religious minorities to offer education in line with their beliefs, it was the Canadian Charter of Rights and Freedoms that entrenched protection for all, through freedom of conscience and religion (Section 2(a)), and non-discrimination on the basis of religion (Section 15).19 Nevertheless, the Canadian Charter applies only to governmental action, by virtue of its Section 32. Nondiscrimination measures in human rights codes have also been developed at the provincial and territorial level to ensure broad protection of religion on the basis of equality.20 The legal contours of religion and religious beliefs have been drawn by the Supreme Courts in both the United States and Canada. In the American context, for instance, “religious beliefs” are understood as any beliefs “playing a role of a religion and function as a religion in the registrant’s life.”21 Within the Canadian context, freedom of religion has been articulated as having both positive and negative components,22 attuned to an individual’s deeply personal beliefs.23 In recent years, the Supreme Court of Canada has broadly defined “religion” as typically involv[ing] a particular and comprehensive system of faith and worship [...] In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.24

See Saskatchewan v Good Spirit School Division No. 204, 2020 SKCA 34. Re: An Act to Amend the Education Act, [1987] 1 SCR 1148, 1152. 18 Truth and Reconciliation Commission of Canada, What we Have Learned: Principles of Truth and Reconciliation, http://​nctr​.ca/​assets/​reports/​Final​%20Reports/​Principles​_English​_Web​.pdf, last accessed May 6, 2020; Janet Epp Buckingham, Fight over God: A Legal and Political History of Religious Freedom in Canada 33−34 (2014). 19 Canadian Charter of Rights and Freedoms, Par I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Canadian Charter]. Multicultural heritage is protected and promoted under Section 27 of the Charter, which is understood as an interpretative clause. It has been employed in freedom of religion cases, most notably in Bruker v. Marcovitz, [2007] 3 SCR 607. 20 Nondiscrimination on the basis of religion or creed is included is all provincial human rights codes. The Quebec Charter of Human Rights and Freedoms, CLRQ c-12, affords much broader protection since it is considered both a human rights code and a bill of rights. The Quebec Charter functions as a quasi-constitutional document and has precedence over all other laws, except when explicitly stated: see Dia Dabby, Constitutional (Mis)Adventures: Revisiting Quebec’s Proposed Charter of Values, 72 The Supreme Court Law Review (2d) 353, 376 (2015). By contrast, the Canadian Human Rights Code, RSC 1985, c H-6, applies “within the purview of matters coming within the legislative authority of Parliament” (s. 2); religion is included as a proscribed ground of discrimination (s. 3). 21 Welsh v. United States, 398 U.S. 333, 339 (1970). 22 R. v. Big M Drug Mart Ltd, [1985] 1  S.C.R.  295 at 336−37 and 351, as cited in Amselem v. Syndicat Northcrest, [2004] 2 SCR 551, para. 40. 23 R. v. Edwards Books and Art Ltd., [1986] 2 SCR 713, 759 as cited in Amselem, supra note 22, para. 41. 24 Amselem, supra note 22, para. 39. 16 17

114  Constitutions and religion While the Supreme Court of Canada has recognized certain collective elements to freedom of religion,25 this approach fits awkwardly with the individualistic framing of freedom of religion under the Charter. This tension was exacerbated in Law Society of British Columbia v. Trinity Western University (TWU),26 where the Supreme Court of Canada had to determine the validity of law society’s decision to refuse to approve the law school proposed at TWU. At the heart of the debate was the requisite community covenant at the only private Christian Evangelical University in Canada – which is mandatory for all students, staff and professors – prohibiting “sexual intimacy that violates the sacredness of marriage between a man and a woman.”27 Such a covenant, the law society determined, would create tangible harm to lesbian, gay, bisexual, trans and queer students who wished to attend law school. While the majority of the Supreme Court recognized that religious rights of the TWU community were engaged, these rights had to be proportionally balanced with other competing interests emerging from the Law Society’s public interest role. In this context, the majority discerned that “minor limits on religious freedom are often an unavoidable reality of a decision-maker’s pursuit of its statutory mandate in a multicultural and democratic society.”28 Understood here, a mandatory community covenant only facilitated “optimal religious learning environment,”29 rather than a requisite learning setting. While there is much more to unpack in this very recent case, it is sufficient to underscore that the recognition of an institution’s right to freedom of religion in Canada remains elusive; this is in stark contrast to the prevalence of both recognized institutional religious freedom, as discussed below, and the presence of Christian law schools in the legal education landscape in the United States. Despite religion’s general and legally delineated parameters, as seen above, both Supreme Courts have cautioned against authority over religion.30

3.

TRANSVERSAL FRAMEWORKS

3.1

Indigenous Spiritualities31

Perhaps more than any other subject, Indigenous spiritualities question the boundaries of religious freedom. Indeed, while Indigenous peoples benefit from the same protections under

25 See Loyola High School v. Quebec (Attorney General), [2015] 1 SCR 613 and Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 SCR 567. 26 Law Society of British Columbia v. Trinity Western University, [2018] 2 SCR 293. See also companion appeal: Trinity Western University v. Law Society of Upper Canada, [2018] 2 SCR 453 SCC 33. 27 Law Society of British Columbia v. Trinity Western University, supra note 26, para. 1 (Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ). 28 Ibid, para. 100. 29 Ibid, para. 87 [emphasis in original]. 30 See Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 715−16 (1981) (Burger CJ); Amselem, supra note 22, para. 45 and 50 (Iacobucci J.). 31 In this section, we employ “Aboriginal” and “Indigenous” interchangeably in the Canadian context.

Constitutionalism and religion in common law North America  115 constitutional frameworks in both Canada32 and the United States,33 theirs is a world where territory is intertwined with the sacred,34 rendering ever more complex the legal recognition of Indigenous spiritualities. In the two countries, a multi-layered constitutional framework governs Indigenous rights, and by extension, Indigenous spiritualities. At its core, relationships with Indigenous peoples fall under the jurisdiction of the federal governments in both countries,35 detailing not only who is considered as “Indian,” but also how land ownership is defined, as well as where they can live and what rights they hold. From the mid-nineteenth century until recently, education was employed as a central mechanism through which to exert control over Indigenous peoples in both Canada and the United States: this missionary model ensured not only the devastation of Indigenous spiritualities, but also the destruction of generations of Indigenous peoples. The disciplinary and punitive approaches – lest to say civilizing Christian relationships – that both Canada and the United States entertained with Indigenous populations foreshadow some of the difficulties faced when Indigenous spiritualities are before the courts. Under the current constitutional framework in Canada, the conversation on Indigenous rights is mainly articulated around Section 35 of the Charter, which recognizes and affirms existing aboriginal and treaty rights of the Indian, Inuit and Métis36 peoples of Canada. Defining the scope and content of “Aboriginal (or ancestral) rights,” however, has been of the purview of the courts and has been understood as “an activity [that is] an element of practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.”37 Recognition of this right is dependent on the practice’s existence prior to contact with settlers,38 thereby inhibiting the full recognition of Indigenous legal orders as living ones. This 32 Noted most recently by the Supreme Court of Canada in Ktunaxa Nation v. British Columbia (Forests, Land and Natural Resource Operations), [2017] 2 SCR 386, at para. 54 (McLachlin CJ). 33 Tribal governments are considered “quasi-independent nations” (Talton v. Mayes, 163 U.S. 376 (1896)) and as such, not subjected to the U.S. Constitution (Cherokee Nation v. Georgia, 202 U.S. 101 (1906) and Worcester v. Georgia, 31 U.S. 515 (1832)). Nevertheless, tribal governments are bound by the Indian Civil Rights Act of 1968, which protects the religious practices of American Indians, Eskimos, Aleut and native Hawaiians, as well as the American Indian Religious Freedom Act, Public Law No. 95–341, 92 Stat. 469, which requires the executive branch and certain federal agencies to take action to protect “Native Americans’ religious cultural rights and practices” (s. 2). 34 Jean Leclair, Le droit et le sacré ou la recherche d’un point d’appui absolu in Le Droit, la Religion et le “Raisonnable” (Jean-François Gaudreault-DesBiens ed., 2009), 475 at 481. 35 In Canada, the Constitution Act, 1867, supra note 15, s 91(24). The Indian Act, RSC 1985, c I-5, still in force today, details the minutiae of quotidian life and governance on land and reserves. While s. 88 of the Act makes general provincial laws applicable to Indians, exceptions are possible, where treaty rights take precedence, as seen in R. v Sioui, [1990] 1 SCR 1025, 1034. In the United States, the General Allotment Act of 1887, known as the Dawes Severalty Act, established a rights-based property framework for individual Indians, rather than tribes as a mechanism to “promote” assimilation. The Dawes Act was ultimately reversed by the Indian Reorganization Act of 1934. For further discussion of land claims and assimilation of Native Americans, see Eve Darian-Smith, Religion, Race, Rights: Landmarks in the History of Modern Anglo-American Law 180−208 (2010). 36 Daniels v. Canada (Indian Affairs and Northern Development), [2016] 1 SCR 99. The Supreme Court of Canada affirmed that Métis and non-status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867. Section 25 of the Charter also highlights that other Charter rights cannot supersede the rights recognized by Aboriginal peoples. 37 R v. Van der Peet, [1996] 2 SCR 507, at para. 255. 38 Ibid., para. 46 and 63. Delgamuukw v. British Columbia, [1997] 3 SCR 1010 recognized both Aboriginal and common law traditions, but focused on the “physical fact of occupation” (para. 114). Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257 reified Delgamuukw’s approach.

116  Constitutions and religion approach inevitably confines the ways and methods that Indigenous spiritual practices can be recognized as constitutionally protected under 2(a) of the Charter. First, it “commodifies Aboriginal expressions of spirituality”39 into digestible common law terms of reference. Second, oral histories – considered as sacred by Indigenous peoples – still do not receive adequate recognition in the legal setting,40 where they are seen at best as being on par with common law traditions. A further challenge with oral histories before the courts, as examples of Indigenous spiritualities, often shifts the parameters from “religious” to “cultural.” Lastly, Indigenous sacred sites seldom obtain recognition under freedom of religion, since framed often in communal or collective terms.41 As illustrated recently by the Supreme Court of Canada’s majority decision in Ktunaxa Nation, where it was argued that the building of a ski resort would drive away a sacred spirit, “the communal aspects of freedom of religion do not, and should not, extend s. 2(a)’s protection beyond the freedom to have beliefs and the freedom to manifest them.”42 In other words, it is the freedom itself that is protected, not the object(s) of the beliefs that it protects. Native Americans face similar legal challenges in the United States, notably with regard to recognition of spiritualities and sacred sites.43 Indeed, while Employment Division v. Smith is considered seminal in First Amendment jurisprudence, some have argued that the Native American litigants at the center of this case were “lost in the conversation.”44 Smith asked whether a religious exemption based on the sacramental use of peyote could trump state interests: “[i]t is not the State’s broad interest in fighting the critical ‘war on drugs’ that must be weighed against respondents’ claim, but the State’s narrow interest in refusing to make an exception for the religious, ceremonial use of peyote.”45 Indeed, the theme of “lost in conversation,” or perhaps more aptly, “lost in translation,” pervades much of the jurisprudence on Native American spiritualities. We can consider Sequoyah v. Tennessee Valley Authority,46 where the plaintiffs contested the flooding of the sacred valley for the purposes of building a dam. The discounting of the plaintiffs’ legal property interest in the site47 is of vital importance to the decision in this case, as the Sixth Circuit Appeals Court held that an insufficient

39 Lori G. Beaman, Aboriginal Spirituality and the Legal Construction of Freedom of Religion, 44(1) Journal of Church and State 135, 144 (2002). See, for instance, Jack & Charlie v. The Queen, [1985] 2 SCR 332, where the argument of hunting deer outside of the allowed season, but for religious/spiritual reasons, was refused. 40 Delgamuukw, Tsilhqot’in, supra note 38. 41 See supra note 25. 42 Ktunaxa Nation, supra note 32, para. 74 (McLachlin CJ). 43 One notable difference between the two countries is the U.S. Constitution’s Fifth Amendment, which protects the right to private property – a point that does not find resonance in the Canadian constitutional context. Kristen A. Carpenter underscores that federal property rights over land take precedence over Native American claims to sacred sites, and therefore Free Exercise claims. See Kristen A. Carpenter, A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Nonowners, 52 UCLA Law Review 1061, 1084−85 (2005). As seen in Badoni v. Higginson, 638 F. 2d 172 (10th Cir. 1980), the framing of property interests is once again key to the decision. 44 Kristen A. Carpenter, Limiting Principles and Empowering Practices in American Indian Religious Freedoms, 45(2) Connecticut Law Review 387, 387 and 390 (2012). 45 Employment Division v. Smith, 494 U.S. 872 (1990), 909−10 (Scalia J.). 46 Sequoyah v. Tennessee Valley Authority, 480 F. Supp 608 (1979), aff’d Sequoyah v. Tennessee Valley Authority, 620 F. 2d 1159 (1980). 47 Sequoyah (1979), supra note 46, 612.

Constitutionalism and religion in common law North America  117 nexus had been established between the site and their religious beliefs,48 concluding that these concerns related to “cultural heritage” rather than “religious rights.”49 A further wrinkle in litigating claims of spirituality also rests in the requests that can be made to accommodate practices on a site that would now be open to tourists, as seen in Badoni v. Higginson;50 ultimately, however, governmental interests once again took precedence over spiritual claims. Such was also the case in Lyng v. Northwest Indian Cemetery,51 where the construction of a road would seriously impede the respondents’ religious practice. It is an understatement to suggest that Indigenous spiritualities, in both Canada and the United States, have faced steep uphill battles in the fight for their legal recognition. This is in part based on historical treatment, with the creation of residential schools as well as the parceling and removal of land rights – a point all the more redolent in the United States, where property is a constitutional right, reasserting common law dominance over Indigenous legal traditions. All this creates genuine impediments to the recognition of sacred sites before and under law. Thus, as mentioned earlier, the interweaving of land with the sacred in Indigenous traditions challenges the form, function and content of current legal protections of religion in both Canada and the United States. 3.2

Reasonable Accommodation

Perhaps more than any other theme covered in this chapter, reasonable accommodation (RA) highlights the American influence on constitutionalism and the legal approach to religion in Canada. Broadly speaking, RA refers to the request for the elaboration of an alternate measure in the context of a facially neutral, albeit disproportionate norm, law or statute. As Colleen Sheppard notes in the Canadian context, “the idea of accommodation is closely connected to processes of reconciliation;”52 this comment is germane to our reflections on Indigenous spiritualities. Nevertheless, Sheppard underscores a foundational difference between reconciliation’s transformative mission and accommodation’s integrationist one.53 Developed predominantly in a labor context, the RA doctrine and particular language are deeply tinged by business concerns, such as costs, effects on collective agreements, safety and performance goals. RA requests can be made, for instance, on the basis of gender, disability or religion. Certain sectors in the United States, however – such as for-profit corporations and religious educational institutions – can discriminate in their employment practices; this differs from the situation in Canada, where private actors are subjected to provincial human rights

Sequoyah (1980), supra note 46, 1164. Ibid., 1162: “documents in the record indicate that the Cherokee objections to the Tellico Dam were based primarily on a fear that their cultural heritage rather than their religious rights, would be affected by the flooding of the Little Tennessee Valley.” 50 Badoni, supra note 43, at 177, where the court stated that the government could not regulate the behavior of tourists on the site to act in accordance with its sacred nature, as this would be considered as an obvious infringement to the Establishment clause. See also Carpenter, supra note 44, at 420. 51 Lyng v. Northwest Indian Cemetery, 485 U.S. 439 (1988) (Brennan J. dissenting). 52 Colleen Sheppard, Inclusion, Voice and Process-Based Constitutionalism, 50 Osgoode Hall L.J. 547, 572 (2013). 53 Ibid. For a critical examination the discourse of “requests”, see Amélie Barras, Exploring the Intricacies and Dissonances of Religious Governance: The Case of Quebec and the Discourse of Request, 4(1) Critical Research on Religion 57−71 (2016). 48 49

118  Constitutions and religion codes.54 Two distinctions between Canada and the United States are relevant to our analysis. First, the conversation on RA and religious diversity has spread outside of the court setting in Canada – notably through the Bouchard-Taylor Commission and subsequent report in the province of Quebec in 2007−08, creating a distinctive socio-legal touchstone.55 Second, Title VII of the 1964 Civil Rights Act56 enshrines the duty of reasonable accommodation of religious beliefs in the United States unless accommodation would impose an undue hardship on the agency. While the hallmarks of accommodation differ in these countries – one legislative and the other through public policy – they are embedded into the broader conversation on reasonable accommodation and religious beliefs. The RA doctrine has developed in the United States in a bifurcated manner: first, as a result of infringement of free exercise; and second, by way of Title VII of the 1964 Civil Rights Act. We will address both. The development of an RA framework can be traced through constitutional protections, as elaborated primarily in Sherbert v. Verner,57 where the employer had dismissed the claimant, a Seventh-day Adventist, after her refusal to work on Saturdays. The employee’s loss of employment was compounded by a refusal to compensate loss of employment due to her religious beliefs by the state’s employment commission. The Supreme Court, in a majority led by Justice Brennan, found that this refusal created a “substantive burden” on the claimant’s right to free exercise, noting, “[t]his is not a case in which an employee’s religious convictions serve to make him a nonproductive member of society.”58 In Wisconsin v. Yoder,59 decided less than a decade later and evaluating the intersection of the state’s compulsory education law with those of the Amish community, the court stated that “[a] regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion.”60 While Yoder provided further indicia for (religious) accommodation, the evaluation of the subsequent religious claims by lower courts propelled judges closely to theological evaluations.61 The second approach to developing the RA doctrine has occurred under the Civil Rights Act – most recently in EEOC v. Abercrombie and Fitch Stores Inc.,62 where Samantha Elauf’s applica54 In the United States, in Burwell v. Hobby Lobby Stores Inc, 573 U.S. (2014), the Supreme Court stated that “protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.” A similar exemption exists for ministers, as seen in Hosanna-Tabor v. EEOC, 565 U.S. 171 (2012). In Canada, for instance, the Quebec Charter of Human Rights and Freedoms, LRQ c 12, at s. 20, provides that “[a] distinction, exclusion or preference based on the aptitudes or qualifications required for an employment, or justified by the charitable, philanthropic, religious, political or educational nature of a non-profit institution or of an institution devoted exclusively to the well-being of an ethnic group, is deemed non-discriminatory.” 55 Gérard Bouchard and Charles Taylor, Building the Future: A Time for Reconciliation (2008). On the heels of the Multani decision, the Bouchard-Taylor commission and later report cemented “reasonable accommodation” into the Quebec – and to a lesser extent, Canadian – imaginary: while the commission was created as a means to diffuse tensions around religious differences, it has not had the desired dampening effect. 56 Civil Rights Act, 78 Stat. 241, sec. 2000e.2. 57 Sherbert v. Verner, 374 U.S. 398 (1963). 58 Ibid., 410. 59 Wisconsin v. Yoder, 406 U.S. 205 (1972). 60 Ibid., 220. 61 As argued by Ira Lupu and Robert W. Tuttle, The Forms and Limits of Religious Accommodation: The Case of the RLUIPA, 32 Cardozo L. Rev. 1907 (2011). 62 EEOC v. Abercrombie and Fitch Stores Inc., 575 U.S. __ (2015).

Constitutionalism and religion in common law North America  119 tion for a vendor’s position was rejected on the basis of the company’s “look policy,” which prohibited all headwear. Justice Scalia, writing for the majority at the Supreme Court, found that the interpretation of Title VII in the lower court was erroneous, since “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”63 RA in the American context therefore requires a careful balancing between religious beliefs and so-called neutral obligations. In Canada, the RA doctrine was first introduced by the ruling in Ontario Human Rights Commission v. Simpsons-Sears.64 At issue was whether O’Malley – a clerk, who became a member of the Seventh-Day Adventist Church after her hiring – was subject to the company’s rotation system that required her to work on most Saturdays and whether this requirement was discriminatory under the Ontario Human Rights Act. Distinguishing between direct and indirect discrimination for a first time, and drawing on American jurisprudence to do so,65 the Supreme Court of Canada underscored that the employer had not taken sufficient steps to accommodate the employee and relieve itself of the onus to prove undue hardship.66 The difference between direct and adverse effect discrimination was further refined in Alberta Human Rights Commission v. Central Dairy Pool,67 where it was determined that only a bona fide occupational requirement elaborated statute would be a satisfactory justification; in the absence of such statutory support, the measure is found to be unconstitutional.68 A non-exhaustive list of factors was also developed to better articulate what constitutes undue hardship, including factors related to cost, disruption to existing agreements, employee morale, the size of the organization and safety and risk requirements.69 Furthermore, in a later case, in relation to a Christian work calendar that adversely affected Jewish teachers,70 a majority of the court underscored that the calendar effectively discriminated against an identifiable group of people because of their religious beliefs.71 Ten years later, Amselem added a vital test to freedom of religion claims, which imposed upon claimants to establish a nexus with religion and a sincerity of beliefs to trigger an evaluation of the infringement.72 The subjective test 63 Ibid., 3 (Scalia J.). Scalia J. continues at 5: “[a]n employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” 64 Ontario Human Rights Commission and O’Malley v. Simpsons-Sears, [1985] 2 SCR 295. 65 Griggs v. Duke Power Co., 401 U.S. 424 (1971) as cited in O’Malley, supra note 64, para. 14−18. 66 O’Malley, supra note 64, para. 29. 67 Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 SCR 489. 68 Ibid., at 520−21. In British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 SCR 3, a case about gender-based discrimination and a physical test designed for forest firefighters, the court found that when an occupational requirement is alleged to be discriminatory, the employer must prove, on a balance of probabilities, that the requirement is a bona fide occupational requirement. 69 Ibid., 491. In Central Okanagan School District v. Renaud, [1992] 2 SCR 970, the court determined that preserving the coherency of the collective agreement, and by extension, employee morale, can take precedence over an employee’s request for RA, and this, despite the employer’s offer to modify the employee’s work schedules. 70 Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 SCR 525. 71 Ibid., 541. 72 Amselem, supra note 22, para. 56: “Thus, at the first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim must show the court that (1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual

120  Constitutions and religion developed has had a direct impact on religious accommodation requests, as seen in Multani, where a 12-year-old Sikh boy sought to wear his kirpan, a ceremonial dagger, in school. In this case, the school code of conduct prohibited all weapons, including the kirpan. While the school reached an agreement with the family of the boy to wear the kirpan following a number of security stipulations, the school board refused to endorse the arrangement. The Supreme Court held that Multani’s right to freedom of religion had been infringed.73 A few years later, in Alberta v. Hutterian Brethren of Wilson Colony,74 members of a Hutterite community argued that the requirement of a driver’s license with photographs violated their freedom of religion, since it required them to make false idols, against their beliefs. The Hutterites had previously benefited from an exemption from the picture component, but Alberta changed its rules, citing security concerns related to identity theft. The majority of the Supreme Court noted that the province’s decision was rooted in a legislative choice and as such, should not be subjected to the reasonable accommodation framework, and should proceed instead by way of the proportionality test:75 in underscoring the law’s “important social goal,”76 the community would have to find alternatives to driving themselves in the absence of valid driver’s licenses. Reasonable accommodation in both the Canadian and American settings compels us to reflect not only on what is considered “reasonable,” but also on what is concretely subject to “accommodation” in the realm of religious claims.

4.

SELECT THEMES

4.1

Religious Prayers in Public Institutions

For centuries, the United States and Canada defined themselves as Christian societies. It was thus not unusual to see legislators – irrespective of the governmental level involved – recite the Lord’s Prayer or make decisions reflecting their creed. However, in the United States, the Establishment Clause of the Bill of Rights’ First Amendment expressly prohibits the enactment of laws amounting to the establishment of an official religion.77 Since 1982 in Canada, Section

faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and (2) he or she is sincere in his or her belief. Only then will freedom of religion be triggered” (Iacobucci J., writing for the majority). 73 Security concerns may nevertheless ground a bona fide occupational requirement. In Singh v. Montréal Gateway Terminals Partnership, 2019 QCCA 1494, the Quebec Court of Appeal held that a corporate policy requiring that truck drivers in a harbor terminal wear a protective helmet because of the risks associated to their job, while violating the freedom of religion of turban-wearing Sikh employees, was, in context, justifiable as a bona fide occupational requirement. The Supreme Court of Canada dismissed the motion for leave: Singh, et al. v. Montreal Gateway Terminals Partnership, et al., 2020 CanLII 30838 (SCC). 74 Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 SCR 567. 75 Ibid., para. 71 (McLachlin C.J., writing for the majority). Abella J., dissenting, argued instead that the Albertan government had not been released from its burden of demonstrating that the violation to the Hutterites was justified under the Charter: see para. 125 in fine. 76 Ibid., para. 101−02. 77 In Lemon v. Kurtzman, 403 U.S. 602 (1971), the United States Supreme Court laid down an analytical framework (the so-called “Lemon test”) that establishes a benchmark when it comes to determining the constitutionality, under the Bill of Rights’ Establishment Clause, of legislation dealing with religion.

Constitutionalism and religion in common law North America  121 2a) of the Canadian Charter has also been construed as imposing a duty of religious neutrality upon public institutions.78 Thus, in both countries, the state should, as a matter of principle, refrain from promoting or hindering particular religious beliefs. Yet despite seemingly clear constitutional prescriptions, politicians of all stripes still occasionally try to use public institutions as vehicles for their own religious beliefs, often under the guise of respecting “tradition” or remaining faithful to their constituents’ cultural heritage. The case law is particularly rich, and sometimes hard to reconcile, in the United States, where – unlike in Canada – religion continues to be a most salient variable in political debates. Prayers, in both political institutions and public schools, have triggered significant litigation. 4.1.1 Prayers in political institutions In the United States, the recitation of prayers is common practice in state legislatures,79 with at least 47 of the 50 states beginning their meeting with one. Some states have even adopted guidelines regulating the delivery of prayers.80 That said, it is through the case law that one can really take the measure of the conflicts provoked by prayers in political institutions. The practice of prayer recitation in deliberative political bodies was first tackled by the United States Supreme Court in Marsh v. Chambers in 1983.81 In that case, Chambers challenged the state government for using public monies to pay a chaplain who opened each legislative session with a prayer under the Establishment Clause. The Supreme Court ruled that this practice did not violate the Establishment Clause, giving significant weight to the longstanding practice of legislative prayers throughout the history of the United States. The court envisaged the prayer as a way to “invoke the Divine guidance on a public body entrusted with making the laws.”82 The chaplain’s remuneration out of public funds was seen as a corollary of that longstanding tradition. The court did not find problematic the fact that the chaplain had been the same for 16 years; this longstanding tenure reflected an appreciation of the chaplain’s performance and personal qualities, rather than an intent to promote a particular creed. It also refused to analyze the content of the prayer, holding that judges should actually refrain from doing so unless the evidence suggests that “the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith, belief.”83 Marsh somehow neutralized prayer

Thus, for a statute to be constitutional, its purpose must be secular rather than religious; its principal or primary effect must neither advance nor inhibit religion; and it must not result in an “excessive government entanglement” with religion. The case dealt with a legislative regime that allowed Pennsylvania’s Superintendent of Public Schools to reimburse private schools for the salaries they paid to their teachers. In practice, the sole beneficiaries of that measure were teachers at Roman Catholic schools. The regime was found unconstitutional on the basis of the test above. 78 Big M. Drug Mart, supra note 22, 354. 79 For example, such prayers are recited in Alabama (House and Senate), California (House and Senate), Delaware (House and Senate), Illinois (House and Senate), Mississippi (House), Montana (House and Senate), Ohio (House and Senate), and Washington (House and Senate). For more details, see: National Conference of State Legislatures, Prayer Practices, Table 02-5.50, www​.ncsl​.org/​ documents/​legismgt/​ilp/​02tab5pt7​.pdf, last accessed May 6, 2020. 80 Ibid., Table 02-5.53. For example, California (Senate and Assembly), Florida (House and Senate), Nevada (Senate and Assembly), North Carolina (House), Pennsylvania (House and Senate), Vermont (House), Washington (House and Senate). 81 Marsh v. Chambers, 463 U.S. 783 (1983). 82 Ibid., 792. 83 Ibid., 794−95.

122  Constitutions and religion recitation by historicizing it. Nevertheless, it did not dispel all doubts concerning the type of prayer, especially non-sectarian prayers, that could be constitutionally upheld. The 2014 case of Galloway v. Town of Greece84 attempted to clarify the law, with moderate success. This case involved opening prayers at municipal council meetings. Although the town claimed that people from any faith were welcome to recite such prayers, the evidence showed that prayers generally referred to “Jesus” or “Jesus Christ.” The U.S. Supreme Court held that the Establishment Clause did not mandate non-sectarian prayers, as requiring such prayers would have the effect of unduly involving the government in religion. It further decided that sectarian prayers violate the Establishment Clause only when they can be construed as evincing patterns “denigrat[ing] nonbelievers and religious minorities, threaten[ing] damnation or preach[ing] conversion.”85 Although evidence indicated that two of the prayers recited at council meetings seemingly denigrated nonbelievers and threatened them with damnation, they were not considered sufficient to demonstrate a pattern. Moreover, no coercion to adhere to any particular belief system was found to flow from the prayers. The court defined “coercion” as a “fact-sensitive inquiry [that] considers both the setting in which the prayer arises and the audience to whom it is directed.”86 It then reiterated the historical argument made in Marsh and ruled that the reasonable observer would know that historically, legislative prayers were made to fulfill the spiritual needs of the legislators as private citizens.87 By giving contextual variables significant weight in Galloway, the Supreme Court does not dissipate the uncertainty originally created in Marsh, as evinced by recent conflicting rulings emanating from federal appellate courts, all of which dealing with the manner in which prayers are conducted.88 The framing of “historical arguments,” as discussed in Town of Greece, resurfaced in 2019 by way of American Legion v. American Humanist Association,89 displacing the line of Galloway v. Town of Greece, 134 S. Ct. 1811 (2014). Ibid., 1823. 86 Ibid., 1824. 87 Ibid., 1825−26. 88 In Bormuth v. County of Jackson 849 F. 3d. 266 (2017), the Sixth Circuit Court of Appeals had to deal with the practice adopted by the County of Jackson’s Board of Commissioners, which allowed its members to give, in rotation, the opening prayer at each meeting. Neither the board nor the county was involved in the determination of the prayers’ content. Moreover, they never rejected any member who had expressed the desire to lead the prayer. The chairman of the board used to welcome the prayer-giver by saying things like “All rise,” “Please bow our heads” or “All rise and assume a reverent position.” As to the prayers themselves, they usually involved sayings like “Heavenly Father,” “Lord,” “Jesus” and “In your holy name.” After the prayer, children would usually come in to recite the Pledge of Allegiance. Bormuth, the plaintiff, asked the commissioners to stop reciting prayers, but they refused. He then sued the County of Jackson alleging a violation of the Establishment Clause. The Sixth Circuit Court of Appeals concluded en banc that the prayers did not violate the Establishment Clause, essentially because they fell inside the scope of historically accepted of legislative prayers. On the contrary, in July 2017, the Fourth Circuit Court of Appeals rendered en banc Lund v. Rowan County, 837 F.3d 407, a decision in which it struck down the manner in which it was carried. Unlike the Sixth Circuit Court of Appeals in Bormuth, the court concluded in Rowan County that the fact that board members were the sole prayer-givers actually constituted a governmental endorsement of religion. Among the contextual variables leading the court to its conclusion were the fact that almost all of the prayers recited from 2007 to 2013 (97 percent, to be precise) were of Christian faith, and that a coercive environment was created as a result of citizens attending board meetings felt pressured to participate in the ritual. After having lost on appeal, Rowan County did not exclude appealing the Fourth Circuit Court of Appeals judgment to the Supreme Court. 89 American Legion v. American Humanist Association, 588 U.S. __ (2019). 84 85

Constitutionalism and religion in common law North America  123 reasoning from prayers to monuments. The Bladensburg Cross, a 32-foot high monument, was erected on public lands following the First World War to mark fallen soldiers. As noted in the court opinion, legal action was undertaken by the American Humanist Association in 2014, almost 90 years after its dedication. The contentious cross had passed from private upkeep to public funds. Justice Alito, writing the majority opinion, underscored that while the monument was imbued with religious meaning at the time of installation, the “passage of time” can come to neutralize its religious roots: “retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. The passage of time gives rise to a strong presumption of constitutionality.”90 American Legion has broader, albeit disconcerting, implications for previously existing forms of religious expression in political institutions (by way of practice, symbols or buildings), as it conflagrates historicity with constitutionality, and ultimately, normalizes Christian expressions of faith by way of “passage of time.” The situation in Canada regarding prayers recited in political institutions is arguably a bit clearer. With respect to prayers that take place in legislative assemblies enjoying formal constitutional status – that is, provincial legislatures and the federal Parliament – the constitutional validity of prayers recited in such assemblies depends on whether this practice can be related to a decision that lies at the core of these assemblies’ “parliamentary privilege.” In New Brunswick Broadcasting v. Nova Scotia,91 the Supreme Court recognized that legislative assemblies have “privileges that are necessary for the exercise of their constitutional function.”92 As such, decisions made in the exercise of such privileges are, as matter of principle, shielded from constitutional challenges based on the Canadian Charter of Rights and Freedoms: in other words, judicial review stops where a privilege has been recognized by binding authorities.93 If no such privilege has been recognized in the past, but a decision made by a legislative assembly may reasonably qualify as one necessary for the effective administration of the assembly (which also covers the house’s decorum),94 the decision will be protected by privilege. Although courts tend to construe privileges in a broad manner,95 not every decision made by a legislative assembly is protected by privilege and thus shielded from constitutional challenge, on the basis of, say, freedom of religion or expression. At the time of writing, no case has dealt with the constitutionality of “legislative prayers.” That said, the federal House of Commons, Quebec, Northwest Territories, Alberta, Manitoba and British Columbia have adopted non-sectarian prayers or mere moments of reflection, which, in all likeliness, would not infringe Section 2(a) of the Canadian Charter. On the other side of the spectrum, Prince Edward Island, Saskatchewan, Ontario, Nova Scotia and New Brunswick have all adopted Christian prayers. In theory, those provinces would interfere with the right

Ibid, 21 (Alito J.). New Brunswick Broadcasting v. Nova Scotia, [1993] 1 SCR 319. 92 Joseph P. Maingot, Parliamentary Privilege in Canada 11 (2nd ed.) (1997). 93 Among the recognized privileges are the right to free speech, the House’s right to control its own proceedings and the right to exclude strangers. New Brunswick Broadcasting, supra note 91, 385−87. 94 Singh v. Attorney General of Quebec, 2018 QCCA 257. 95 For example, the Quebec National Assembly’s decision to refuse entry to Sikhs unless they removed their kirpan, which they refused to do, was upheld by the province’s Court of Appeal on the basis of the parliamentary privilege which encompasses the right to exclude strangers: Singh v. Attorney General of Quebec, 2018 QCCA 257 (motion for leave dismissed by the Supreme Court of Canada: Singh, et al. v. Attorney General of Québec, 2018 CanLII 99646 (SCC)). 90 91

124  Constitutions and religion to religious freedom, but courts still must determine whether such prayers are protected by parliamentary privilege. Since municipal councils do not enjoy any form of parliamentary privilege, the intensity of the judicial scrutiny of prayers recited at town meetings is much higher, as a result of which such prayers are much more likely to be found in violation of the religious freedoms protected by Section 2 (a) of the Canadian Charter or its provincial equivalents, as the case may be. The 2015 case of Mouvement laïque québécois v. Saguenay (City)96 sets the tone in that regard. Simoneau, an atheist, regularly attended municipal council meetings of the city of Saguenay, which the mayor always opened with the recitation of a Christian prayer. Moreover, one room at city hall hosted a statue of the Sacred Heart and another had a crucifix affixed on a wall. Simoneau asked the mayor to stop reciting prayers when opening the council. His request was rejected, prompting Simoneau to file an action against the city, alongside the Mouvement laïque québécois, alleging violation of Sections 3 (freedom of conscience and religion) and 10 (right to equality) of the Quebec Charter of Human Rights and Freedoms.97 Not long after the action was filed, the city enacted a bylaw, which changed the wording of the prayer and provided a two-minute break between the end of the prayer and the beginning of the council, in order to allow people to leave during the prayer if they felt more comfortable doing so. However, the mayor continued reciting the prayer at the opening of town meetings. The Quebec Human Rights Tribunal held that the recitation of prayer and the religious signs interfered with the plaintiff’s right to freedom of conscience in more than a trivial manner; it thus forbade prayer recitation and ordered the removal of the statue and crucifix. The Quebec Court of Appeal allowed the city’s appeal, on the ground that the prayer was actually expressing universal values and could not be associated with any particular religion. As for the religious signs, they were qualified as works of art whose religious imagery did not put in question state neutrality. The underlying theme of the Court of Appeal’s reasoning was that the impugned prayer and signs were cultural rather than truly religious manifestations.98 The Supreme Court of Canada unanimously rejected that analysis. Reiterating that the state must encourage democratic participation without regard to one’s beliefs, and that, consequently, state neutrality is a component of freedom of conscience and religion, the Supreme Court held that since Simoneau’s atheism was sincere, the bylaw interfered with his ability to act according to his belief in more than a trivial way. The fact that it provided for a delay between the end of the prayer and the beginning of the council meeting was discriminatory, as it created an unconstitutional distinction between believers and non-believers. The Supreme Court also found that the bylaw’s fundamental purpose was religious – rather than “cultural” – thereby breaching the duty of state neutrality. The Mouvement laïque québécois case is significant as it crystallizes the idea that under Canadian law, state neutrality minimally implies non-discrimination between believers and non-believers – the latter being equally worthy of respect as the former, as well as between believers of all stripes. It also indirectly upholds a prior decision of the Ontario Court of Appeal in Freitag v. Penetanguishene (Town),99 in which it was held that the recitation of the Lord’s Prayer at the opening and closing of city council meetings in Penetanguishene, even if the plaintiff was not forced to stand up during 98 99 96 97

Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3. Charter of Human Rights and Freedoms, CQLR c C-12. Saguenay (Ville de) v. Mouvement laïque québécois, 2013 QCCA 936, para. 72. Freitag v. Penetanguishene (Town), 1999 CanLII 3786 (ONCA).

Constitutionalism and religion in common law North America  125 the recitation, could be characterized as a form of coercion incompatible with Section 2(a) of the Canadian Charter. The Court of Appeal held that the mere fact that not standing up could single out the plaintiff at council meetings, on the basis of religion, constituted a substantial infringement of his religious freedom. Interestingly, the Ontario Court of Appeal, unlike its Quebec counterpart in Mouvement laïque québécois, did not accept any historical or cultural justification for the prayer. Thus, since the core purpose of the prayer recitation was religious, and since that practice did not minimally impair the plaintiff’s freedom, it was declared unconstitutional. 4.1.2 Prayers in public schools If political institutions have proven to be important symbolic battlegrounds in North American culture wars, public schools remain steadfastly in the eye of the storm, given the role they play in shaping individual and collective identities. In the United States, several landmark cases were decided by the Supreme Court on the issue of prayers in public schools. In Engel v. Vital, a county policy imposed upon teachers the obligation to recite the Regents’ Prayer at the outset of each day.100 The policy provided for an opt-out system where students who did not want to recite the prayer could sit and remain silent or temporarily leave the classroom. Some parents and students objected, and the Supreme Court ultimately ruled that the practice violated the Establishment Clause, since it suggested that the state endorsed religion at large. The vague wording of the prayer and the fact that it did not endorse a particular religion did not constitute a valid defense for this avowedly theistic prayer. The Supreme Court was once again called upon to weigh in on a prayer in Abington School District v. Schempp.101 Pennsylvania public schools started each day by reading ten Bible verses and reciting the Lord’s Prayer. The majority on the Supreme Court declared the practice to be unconstitutional. After having reviewed the history of public prayers in the country, the court laid down a test to determine whether public prayers violate the Establishment Clause: “there must be a secular legislative purpose and a primary effect that neither advances or inhibits religion.”102 Essentially, the state must refrain from acting religiously: it must act for secular purposes “in ways that would have primarily secular effects.”103 In 1985, the Supreme Court applied again the so-called “Schempp test” in Wallace v. Jaffe,104 striking down an Alabama law that allowed teachers to conduct religious prayers in classrooms, even if the law provided that the prayer could be replaced by a meditation. The court held that the law’s purpose was indeed religious, thereby infringing the state’s constitutional duty to remain neutral toward religion. While Schempp and Wallace addressed examples of teachers reciting school prayers, Lee v. Weismann dealt with a prayer given by a person who was not part of the school’s staff.105 In that case, a Rhode Island public high school invited clergy to recite prayers on graduation 100 The prayer was as follows: “Almighty God, we acknowledge our dependence upon Thee, and we beg thy blessings upon us, our parents, our teachers, and our country.” 101 Abington School District v. Schempp, 374 U.S. 203 (1963). 102 Ibid., 222. 103 Steven D. Smith, Constitutional Divide: The Transformative Significance of the School Prayer Decisions 38(1) Pepperdine Law Review 945, 960 (2011). 104 Wallace v. Jaffe, 472 U.S. 38 (1985). 105 Lee v. Weismann, 505 U.S. 577 (1992).

126  Constitutions and religion days. A majority of judges on the Supreme Court concluded that the way the prayer was carried out coerced the students to participate, no matter how subtly – in part because attending graduation was, for all intents and purposes, mandatory. A distinction was also drawn between school prayers, which involve children, and legislative prayers, which relate to adults – the latter being free to leave and return to the premises after the prayer. Canada does not distinguish itself from the United States regarding school prayers. A 1988 ruling of the Ontario Court of Appeal crystallized the law on this matter. In Zylberberg v. Sudbury Board of Education,106 a provision of Ontario’s Education Act enabled the minister of education to enact a regulation declaring that each school day would open and end with the recitation of a prayer, without specifying whether the prayer was to be Christian or of another nature. In the school of the plaintiffs’ children, the prayer chosen was the Lord’s Prayer. Although the Education Act provided that an exemption could be granted to any child if his or her parents requested it, the plaintiffs sued the Board of Education, alleging that both the enabling legislation and the regulation adopted thereunder violated their freedom of religion. The Court of Appeal agreed, notably rejecting the argument to the effect that the possibility of an exemption assuaged the fear of a violation of freedom of religion. It held that pressure and compulsion should be evaluated according to the religious minorities’ perspectives, and not from that of the majority. Indeed, a member of a religious minority might refuse to seek an exemption for fear that his or her children would be singled out as “different” from, and by, the others. The legislative scheme was thus found unconstitutional as violating the plaintiffs’ freedom of religion. As can be seen, the legal treatment of prayers in public institutions reveals both disagreements and convergences between Canada and the United States. With regard to prayers in political institutions – particularly with regard to legislative prayers – sectarian prayers unmistakably violate religious freedom and, setting aside parliamentary privileges, can hardly be justified in Canada. On the contrary, in the United States, the historical importance of the practice justifies a very low level of judicial scrutiny, as a result of which legislative prayers are generally deemed not to violate the Establishment Clause. With regard to public school prayers, Canada and the United States tend to go in the same direction and hold the practice unconstitutional. Canada seems to adopt the same test for legislative prayers and school prayers, whereas the case law in the United States rather shows that the Establishment Clause is applied more stringently when it comes to schools. 4.2 Marriage While perhaps a symbol of one of the oldest socio-legal institutions in both Canada and the United States, marriage is demonstrative of significant constitutional change in two ways, with one leading toward legalization and the other remaining in the realm of criminalization. Indeed, the legalization of same-sex unions has changed the legal landscape in North America (and elsewhere). On the other hand, polygamy107 has been recently tested before the courts in both countries after a period of relative jurisprudential dormancy. As we will explore below, Zylberberg v. Sudbury Board of Education, 1988 CanLII 189 (ON CA). “Polygamy” is employed here in the broadest sense possible – that is, as plural marriages. “Bigamy” refers to a person who is already married going through another marriage ceremony. Distinction between terms in this section will be made where needed. 106 107

Constitutionalism and religion in common law North America  127 both same-same marriage and polygamy challenge the state of constitutionalism and religion in North America, as well as the “standard” of the monogamous (heterosexual) union. The “right to marry” is recognized through the Ninth Amendment of the U.S. Constitution.108 Jurisdiction over this institution falls under the dominion of states in the American context, by way of the faith and full credit clause contained in Article IV of the U.S. Constitution.109 By contrast, marriage in Canada is an exercise in joint jurisdiction: whereas the exercise of marriage and divorce falls under federal legislative competency,110 its solemnization falls under provincial responsibility.111 As we will see in this section, the greatest source of judicial guidance and jurisprudential change in Canada with regard to both same-same legislation and polygamy has come in the form of judicial references to the courts.112 This stands in stark contrast to the United States, where discussions on these issues have evolved solely through actionable causes. Unsurprisingly, polygamy follows the same jurisdictional lines as marriage in both countries. In Canada, polygamy is considered an indictable offense under the Criminal Code.113 In the United States, all states but one have enacted statutes making bigamy illegal.114 Many, but not all, legal cases around polygamy in both countries have revolved around the Mormon Church and the understanding of marriage its theology underlies. Both countries have framed their rejection of polygamy through its incoherence with Christendom115 and its “subversi[on] of good order.”116 108 Loving v. Virginia, 388 U.S. 1, at 12 (1967), as noted in Kenji Yoshino, A New Birth of Freedom?: Obergefell v. Hodges, 129 Harvard L. Rev. 147, 149 (2015). 109 Pennoyer v. Neff, 95 U.S. 714, at 734–35 (1878) highlights that a state, for instance, “has an absolute right to prescribe the conditions under which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.” See also Maynard v. Hill, 125 U.S. 190, 205 (1888). Despite state jurisdiction on marriage, Congress passed the Defense of Marriage Act in 1996 (DOMA, 110 Stat. 2421), which defined marriage as being between one man and one woman for the federal law purposes. This legislation was in response to Baehr v. Lewin, 74 Haw. 530 (1993), which found that restricting marriage to only a man and a woman constituted an undue classification, requiring strict scrutiny under the state’s constitution. 110 Constitution Act, 1867, supra note 15, s 91(26). 111 Ibid., s 92(12). 112 A judicial reference is a case referred by either the provincial or federal government by way of the lieutenant governor or governor general to the court to address a question of constitutional nature. It is an advisory and non-binding opinion, which nevertheless tends to be generally respected by governments. 113 Criminal Code, RSC 1985, c C-46, s. 293. Criminal law falls under federal jurisdiction (Constitution Act, 1867, supra note 15, s 91(27)), except for the constitution of courts of criminal jurisdiction (Constitution Act, 1867, supra note 15, s 92(14)). 114 Casey E. Faucon, Marriage Outlaw: Regulating Polygamy in America, 22(1) Duke Journal of Gender, Law & Policy 1, 1 (2014). By contrast, Massachusetts criminalizes polygamy. 115 Hyde v. Hyde, [1866] 1 P.D. 130, at 133 established that as understood in Christendom, marriage between one man and one woman. 116 Reynolds v. United States, 98 U.S. 145, 164 (1879). In Late Corporation of Church of Jesus Christ of Latter Day Saints v. United States, 136 U.S. 1 (1890), the court argued that enabling this church was akin to encouraging a “return to barbarism” (at 49). At issue in this case was the Edmunds-Tucker Act of 1887, a federal law whose aim was to prohibit the promotion of polygamy by seizing church assets. As discussed in the Indigenous spiritualities section of this chapter, whereas the Dawes Act, adopted the same year, sought to “civilize” the Native American population by limiting property rights through allotment, the Edmunds-Tucker Act sought to “free” those from the practice of polygamy. See Suzanne Lenon, Intervening in the Context of While Settler Colonialism: West Coast LEAF, Gender Equality and the Polygamy Reference, 6(6) Oñati Socio-legal Series 1324, 1331 (2016), https://​ssrn​.com/​abstract​=​ 2891019. The Edmunds-Tucker Act was repealed in 1978. The transport of women for the “purposes of

128  Constitutions and religion Criminalization remains the current vehicle through which polygamy is grasped in Canada (under Section 293 of the Criminal Code). Its constitutionality has come under legal scrutiny when charges were brought against two of the leaders of a small Mormon community known as “Bountiful” in British Columbia. In a judicial reference submitted by the provincial government on the constitutionality of Section 293 of the Criminal Code,117 Chief Justice Bauman of the British Columbia Supreme Court found that the practice of polygamy was harmful both to the women in these relationships and to the children born from these unions. While he considered that Section 293 of the Criminal Code interfered in more than a trivial manner with the religious practices of those who practice polygamy (including Mormons, Wiccans and Muslims), the beneficial effects of this criminal provision were seen to outweigh the deleterious ones. He ultimately confirmed the constitutionality of the provision. In recent decades, a partial change has been noted in the United States in the way in which polygamy is addressed before the courts: first, not only as a First Amendment issue, but also as a Fourteenth Amendment question (as a right to privacy and liberty), thereby challenging the link to the state’s compelling interest;118 and second, in the understanding of “religious cohabitation,” understood as “those who choose to live together without getting married enter in a relationship that resembles marriage in its intimacy but claim no legal sanction.”119 Polygamy clearly challenges the state of constitutionalism in both Canada and the United States. In both countries, anti-polygamy and anti-bigamy legislation was initially enacted to protect Christendom and ensure good morals. The moralizing fiber of this approach still resonates today. Nevertheless, this approach is starting to wane a bit, at least in terms of its justification: as such, it behooves the state to justify regulation and interference through the least restrictive means possible. This has played itself out differently in the two countries, as evidenced by the case of same-sex marriage, to which we now turn. As highlighted previously, marriage is a shared jurisdiction in Canada: whereas the federal level sets the rules for marriage, the provinces have authority over solemnization,120 but also the parameters of inclusion for spousal support. This latter issue was at stake in M. v. H.,121 where a lesbian couple who had been together for 20 years split up after sharing a home and prostitution, debauchery or any other immoral purpose,” by way of the White-Slave Traffic Act (Mann Act) ((1910) 18 U.S.C. §§ 2421-2424) was understood as including polygamy into “any other immoral purpose” and therefore contrary to interstate commerce: see Cleveland v. United States, 329 U.S. 14 (1946). 117 Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1558. 118 The state’s compelling interest in marriage was confirmed in Potter v. Murray City, 585 F. Supp 1126 (1984). 119 Brown v. Buhman, 947 F. Supp. 2d 1170, 1197 (2013), vacated as moot in Brown v. Buhman, 822 F.3d 1151 (2016). In Brown v. Buhman, plaintiffs initially argued successfully that Utah’s anti-bigamy statute interfered in an unwarranted manner with their First Amendment rights and the Due Process Clause. The court, relying on Lawrence v. Texas, 539 U.S. 558 (2003) confirmed that private, consensual relationships are not within the realm of governmental interference. It is not without irony that the court relied on a same-sex decision to advance its argument in Brown v. Buhman (2013), supra, at 1198. The influence Brown v. Buhman is very limited, since appealed and ultimately found to be moot (and standing denied), due to the adoption of a new policy that enabled prosecution on the basis of bigamy only where there is fraud or collateral damage. 120 As noted recently by the Quebec Court of Appeal, all authorized celebrants, whether religious or secular, must declare the marriage to the Registrar of civil status: see Droit de la famille – 191850, 2019 QCCA 1484, paras. 102–104. 121 M. v. H., [1999] 2 SCR 3.

Constitutionalism and religion in common law North America  129 business interests. M sought spousal support and challenged the constitutionality of Section 29 of the Ontario Family Law Act,122 which defined a spouse as a “married person” or “a man and a woman” who were not married but in continual cohabitation for a period of three years. The framing of the Family Law Act, as it then was, precluded same-sex couples who fulfilled the cohabitation criteria from obtaining spousal support and therefore raised questions from the standpoint of the Canadian Charter’s non-discrimination provision. A majority of the Supreme Court found in favor of M, stating that the Family Law Act established not only a formal distinction on the basis of sexual orientation, but also a discriminatory treatment to same-sex cohabitating couples. As a result, Section 29 of the Family Law Act was invalidated and the Ontario legislature was given six months to revise its legislation. Indeed, while the majority of the court emphasized that this decision concerned spousal support for same-sex couples, it was explicit in its message that it did not seek to challenge the institution of marriage.123 Nevertheless, this decision opened the floodgates for legal challenges to the institution of marriage across the country,124 confronting both common law and civil law regimes. As a result of mounting legal pressure, the federal government submitted a judicial reference to the Supreme Court of Canada125 to glean clarity on the constitutionality of a proposed legislation seeking to legalize same-sex marriage vis-à-vis the separation of powers under the Constitution Act 1867. The court held that marriage, “from the perspective of the state, is a civil institution.”126 In this context, it cannot be understood as a “frozen concept,” but rather should evolve in the image of Canada’s pluralistic society and its living tree concept, in order to safeguard the continued legitimacy of its constitutional order.127 Moreover, the court noted that the ambit of Section 2(a) of the Canadian Charter is broad enough to protect religious officials from having to perform same-sex unions.128 Following this reference, the Civil Marriage Act was enacted into law in 2005.129 As related by one author, “in crafting the rules of civil marriage, Parliament has not regarded itself as bound to the revealed truths of religions. It has instead responded to the desires, problems, and social practices of actual families.”130 While social realities have pushed toward legislated recognition of same-sex couples, putting law into practice has revealed certain hiccups. Although the question of solemnization of civil marriages by religious officials was neatly dealt with in the reference, the same cannot be said about

Family Law Act, RSO 1990, c-F.3 [FLA]. M. v. H., supra note 121, para. 134 (Iacobucci J.). 124 Halpern v. Canada (Attorney General), 2003 CanLII 26403 (ONCA); Hendricks & Leboeuf v. Québec (Attorney General), 2002 CanLII 23808 (QCCS); Barbeau v. British Columbia, 2003 BCCA 251. 125 Reference re: Same-sex Marriage [2004] 3 SCR 698. Four questions were put before the court, related to the jurisdictional authority of the proposed legislation (question 1); its consistency with the Charter (question 2); whether the proposed legislation unduly impacted religious officials’ right to freedom of religion and choice to perform a same-sex marriage (question 3); and finally, whether the opposite-sex requirement for civil marriage purposes was consistent with the Charter (question 4) (supra, paras. 2–3). The court chose not to answer the fourth question. 126 Ibid., para. 22. 127 Ibid., paras. 21–23. The court noted that the effects of the proposed legislation on provincial competencies would be de minimis and do not relate to the “pith and substance” of these competencies (para. 32). 128 Ibid., paras. 55–60. 129 Civil Marriage Act, SC 2005 c 33. 130 Robert Leckey, Profane Matrimony, 21(2) Canadian Journal of Law and Society 1, 17 (2006). 122 123

130  Constitutions and religion civil marriage commissioners’ right to religious freedom if asked to perform a same-sex civil marriage. Whereas some provinces issued directives to their marriage commissioners that they must perform or resign, “Religion is indeed functioning as here as the new gay;”131 others have chosen instead to accommodate, either unofficially or through legislation.132 Judicial recognition of same-sex marriage has been more incremental in the United States, culminating in its legalization in 2015, via Obergefell v. Hodges.133 In declaring unconstitutional state laws that banned same-sex marriage, the majority of the court employed the Due Process Clause to demonstrate its wide embrace of the (equal) right to liberty: “their [petitioners] hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law.”134 Obergefell also found the federal Defense of Marriage Act to be unconstitutional, thereby fulfilling the work commenced in United States v. Windsor. Nevertheless, the majority opinion said little on the relationship between marriage and religion, relying instead on the language of rights of dignity and liberty. This former point was addressed more practically – and discerningly of future sources of litigation – in the dissenting opinions, where references were made to the “hard questions” that surface “when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage,”135 and to the slippery slope that could occur if the institution of marriage was opened up further.136 This concern has made its way to the U.S. Supreme Court, which, in 2018, had to opine in a case where the owner of a cake store had refused to design a custom cake for a same-sex couple’s marriage, because it conflicted with his sincerely held beliefs.137 Lower court decisions had consistently found in favor of the respondents, where the duty to accommodate outweighed the cake owner’s rights to expression as a “cake artist.” The United States Supreme Court decided otherwise, siding with the owner of the cake store. This case evaluated not only a commensurate access to goods

131 Bruce Ryder, The Canadian Concept of Equal Religious Citizenship, in Law and Religious Pluralism in Canada 100 (Richard Moon ed., 2008). Saskatchewan, Manitoba and Newfoundland have chosen not to provide an accommodation pathway for marriage commissioners. This is evidenced in both Nichols v. M.J., 2009 SKQB 299 and the Marriage Commissioner Reference, 2011 SKCA 3. 132 Jared Epp, Justified Coercion: A Case Comment on the Marriage Commission Reference, 75 Sask. L. Rev. 97, 98 (fn 5) (2012). 133 Obergefell v. Hodges, 576 U.S. __ (2015). Two other cases are vital to understand the legalizing trajectory of same-sex relationships in the United States. Lawrence v. Texas, supra note 119, overturned Bowers v. Hardwick, 478 U.S. 186 (1986), finding that Texas’ anti-sodomy laws were unconstitutional. The majority of the court, in an opinion also written by Justice Kennedy, found that consensual intimate relations between two persons of the same sex was protected by the right to personal liberty and privacy, as embedded in the Due Process Clause. United States v. Windsor, 133 S.Ct. 2675 (2013), disputed the definition of marriage as contained in the DOMA, which defined both the actors and the institution as irrevocably heterosexual. Edith Windsor and Thea Clara Spyer were married in Ontario and returned to their native New York, where their union was duly recognized by the state. Upon Spyer’s death, Windsor became the legal heir to her estate, but not recognized by the DOMA parameters. The Supreme Court found that Windsor had suffered a double disadvantage, based on her separate status as part of a same-sex couple, but also since marriage fell under the dominion of the states and not the federal government (supra, 2691–96). As a result, certain key DOMA provisions were struck down. 134 Obergefell v. Hodges, 576 U.S. __ (2015), at 28 (Opinion of the Court). 135 Ibid., at 28 (Roberts C.J., dissenting). Similar concerns were also raised in companion dissents by Justices Thomas and Alito. 136 Ibid., at 21 (Roberts C.J., dissenting), on the danger of plural marriage. 137 Masterpiece Cakeshop v. Colorado Civil Rights Commission, 54 U.S. __ (2018).

Constitutionalism and religion in common law North America  131 and services, but also an equal protection of fundamental freedoms. Masterpiece Cakeshop signals, in our view, a new trend of conflict of rights, now shaped as an affront to free exercise of speech, rather than solely on religious beliefs. A majority of the Supreme Court underscored that the Colorado Civil Rights Commission did not consider the case from a religiously neutral standpoint, thereby “tainting” the decision rendered.138 In conclusion, the institution of marriage, in all its forms, has been on judicial display in both Canada and the United States in recent years. In Canada, jurisprudence indicates constitutional flexibility in carving out space for same-sex unions, rather than polygamous unions, which are still understood through the lens of criminalization: both, however, have tested the bounds of Canadian constitutionalism. In the United States, legal recognition of same-sex union has occurred in a protracted manner, with recent cases challenging the bounds of First Amendment protections via free speech rather than solely through free exercise of religious beliefs; the state of polygamous unions before the law, on the other hand, remains to be determined. 4.3

End-of-Life Decisions

In most societies, decisions about life and death have strong moral and religious overtones. It is no surprise, then, that those affecting the end of a person’s life raise significant debates both in Canada and in the United States. Such is the case, in particular, of assisted suicide, as opposed to one’s refusal of life-saving treatments. The question is not so much whether the two legal orders abstractly recognize a “right to die” or alternatively a “right to kill” (e.g. when a person is incompetent or unable to make a decision for himself or herself), but rather how they grasp the interplay between end-of-life decisions, when such a right is recognized, and how they deal with religious objections that may interfere in the exercise of that right. For its part, end-of-life care poses few problems, unless it leads to self-inflicted death or death inflicted by a third party. A preliminary observation is warranted concerning the impact of the federal division of powers on such questions in the two countries. As mentioned above, the elaboration of public policies ultimately leading to the enactment of laws framing end-of-life decisions is often infused with moral or religious considerations. Most often, such considerations come to the fore through the enactment of criminal laws. In this regard, the Canadian and American frameworks diverge. In the United States, criminal law is the domain of federated states;139 while in Canada, it falls under the federal Parliament’s jurisdiction.140 However, in both countries, states or provinces are primarily responsible for healthcare services offered on the ground.141 The combination of a federal jurisdiction over criminal law and a provincial jurisdiction over healthcare means that, contrary to what happens in the United States, the division of powers in Canada entails a “federalizing effect.” Indeed, given the doctrine of federal paramountcy in case of operational conflicts between federal and provincial laws, any provincial law purport Ibid., at 3 (Kennedy J.). Lawrence M. Friedman, Crime and Punishment in American History (1993). 140 Constitution Act, 1867, supra note 15, s 91(27). 141 In Canada, Constitution Act, 1867, supra note 15, ss. 92(7), 92(13) and 92 (16). In the United States, the situation is also complex, as jurisdiction over health is expressly attributed neither to the federal government nor to the states. Yet the states may adopt laws relating to this matter under the Constitution’s Tenth Amendment. The federal government may also legislate in this area on the basis of various constitutional powers. 138 139

132  Constitutions and religion ing to regulate end-of-life decisions from the perspective of healthcare must shy away from conflicting with federal laws – that is, in this field, federal criminal laws. In the United States, the power to regulate end-of-life decisions – whether resulting from the refusal of life-saving treatments or from assisted suicide – practically falls under the states’ competence. The U.S. Bill of Rights – particularly through the impact of its Fifth and Fourteenth Amendments – represents the main constitutional instrument susceptible of impacting on the way they exercise their powers. For their part, in addition to having to legislate in a way that respects the federal division of powers, Canadian provinces must also comply with the Canadian Charter. As we will see hereunder, this constitutional instrument protects both freedom of conscience and religion on the one hand, and the right to life, liberty and security of the person on the other. In Canada, legal debates on self-inflicted suicide or assisted suicide were long determined by a triple prohibition found in the federal Criminal Code.142 First, until 1972, that Code criminalized suicide. After the repeal of that prohibition, Canadians who sought help to end their life were precluded from doing so by two further prohibitions: one proscribing anyone from aiding or abetting a person in committing suicide;143 and the other rendering it legally impossible to consent to death being inflicted upon oneself.144 In practice, this regime made assisted suicide an indictable offence and any provincial statute that would have sought to legalize it, under the proviso of provincial jurisdiction over healthcare, would have become inoperative as a result of the federal paramountcy doctrine. This federal regime was first challenged in 1993 under Section 7 of the Canadian Charter, which provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” In Rodriguez v. British Columbia (Attorney General),145 a woman suffering from Lou Gehrig’s disease (amyotrophic lateral sclerosis) wanted to end her life with the aid of a qualified physician, given the dire consequences of the progression of her illness and the distress she would have to endure. She thus challenged the Criminal Code provisions that prevented her from doing so. A bitterly divided Supreme Court of Canada rejected the challenge, holding that Section 7 of the Canadian Charter protected the sacred and paramount character of life. Under that view, accepting the possibility of one’s control over one’s death – even an imminent one – would go against Section 7’s objective. Yet majority judges also held that Section 7 protected human dignity, personal autonomy and one’s control over one’s physical and mental integrity; and consequently, that criminalizing assisted suicide infringed Ms. Rodriguez’ personal autonomy. However, according to the Supreme Court, this infringement was not contrary to the principles of fundamental justice, based on an examination of comparable democracies which also prohibited assisted suicide. In addition, the enactment of the prohibition fostered the state’s interest in protecting vulnerable persons. A minority of judges on the Supreme Court took the opposite view. Even though they found, as the majority, that Ms. Rodriguez’ right to the autonomy of the person was denied by the impugned provisions, they considered that the legislative regime at stake arbitrarily distinguished between physically able and physically disabled persons as far as access to 144 145 142 143

Criminal Code, supra note 113. Ibid., s. 241(b). Ibid., s. 14. Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519.

Constitutionalism and religion in common law North America  133 suicide was concerned. Indeed, the regime practically allowed an able person to commit suicide (which had been decriminalized in 1972), while concurrently denying that possibility to disabled persons by criminalizing assisted suicide. Such arbitrariness, in their view, went against principles of fundamental justice. Rodriguez determined the state of the law until 2015, when the Supreme Court overturned it in Carter v. Canada (Attorney General).146 Like Ms. Rodriguez, Ms. Carter was suffering from Lou Gehrig’s disease, and wanted the help of a qualified physician to end her life. The first hurdle in her quest was, obviously, the Rodriguez case itself, which, as a matter of principle, was a binding precedent. Given the proximity between the two cases, the Supreme Court could not escape making a decision as to whether Rodriguez was still dispositive of the issue. It held in the negative, on both factual and normative grounds. First, it accepted evidence demonstrating that one of the rationales that had led the court to uphold provisions criminalizing assisted suicide in Rodriguez no longer stood. Indeed, contrary to the situation in 1993, many states had legalized assisted suicide by 2015. Second, it found that the interpretation of the normative framework underlying Section 7 of the Canadian Charter had evolved so much since 1993 such that Rodriguez did not address some crucial questions now before it. Thus, having accepted to examine the issue anew, the Supreme Court held that the Criminal Code provisions effectively criminalizing assisted suicide unconstitutionally restricted one’s right to life by forcing some people to prematurely end their life for fear of being unable to do it at a later stage. Echoing the dissenting judges in Rodriguez, the Supreme Court argued that the right to life is essentially permissive and thus could not be construed as creating any form of obligation to live. The court also stated that the impugned provisions infringed the rights to personal autonomy and dignity, as well as the right to liberty and the security of the person, by depriving seriously ill patients from taking significant decisions regarding their physical integrity and medical care. It concluded that nothing could save the legislative regime that had been constitutionally upheld 20 years earlier. Carter thus stands for the proposition that it is unconstitutional in Canada to deny capable adults, who have freely and clearly expressed their consent, to require the aid of a third party for the purpose of ending their life because of a serious and irremediable medical condition. Following Carter, the federal Parliament amended the Criminal Code. Although the prohibition of assisted suicide was maintained as a matter of principle, the new regime created exemptions for persons providing others with medical assistance in dying under conditions set forth in the Code.147 In a nutshell, a person could receive medical assistance in dying if he or she was eligible for government-funded health services in Canada; was at least 18 years of age and capable of making decisions with respect to his or her health; had a grievous and irremediable medical condition; had made a voluntary (i.e. without external pressure) request for medical assistance in dying; and had given informed consent to receive such assistance after having been informed of the means available to relieve his or her suffering, including palliative care.148 Various safeguards, most of which seek to ensure the person’s informed consent, were also enshrined in law. Although the new regime clearly established that it did not compel individuals to provide aid to assisted suicide,149 it remained, and still remains, silent as to the 148 149 146 147

Carter v. Canada (Attorney General) [2015] 1 SCR 331. Criminal Code, supra note 113, s. 241. Ibid., s. 241.2 (1). Ibid., s. 241.2 (9).

134  Constitutions and religion conduct that objecting physicians should adopt when patients request it. In other words, the resolution of this issue is left to provinces, which may address it under their healthcare jurisdiction. Medical colleges can also play a role in the process when exercising the regulatory powers that provinces may choose to delegate. In 2019, the Quebec Superior Court struck down the “reasonably foreseeable natural death” requirement provided for in the new, post-Carter federal regime, as disproportionately infringing upon gravely ill persons’ fundamental rights set out in ss. 7 and 15 of the Canadian Charter.150 It also invalidated the “end-of-life” requirement found in Quebec’s Act respecting end-of-life care, which was the province’s own legislative response to the Carter case. The federal government has decided not to appeal this judgment, and to amend once again the Criminal Code to expand access to assisted suicide. At the time of writing, it is still working on these amendments and a bill has yet to be tabled before the House of Commons. For its part, the Quebec government has opted for granting access to assisted suicide without applying the now inoperative “end-of-life” requirement. Irrespective of Carter’s impact on legislative conditions for accessing assisted suicide, federal legislation leaves to provinces the responsibility of determining the conditions under which physicians may concretely object to provide aid to a patient wishing to end his life, it also means that provincial regimes must comply with Section 2(a) of the Canadian Charter, which protects freedom of religion and freedom of conscience. Such regimes must thus reconcile the respective constitutional rights of both patients and physicians, which they do differently. The province of Quebec, which played a pioneering role with its Act respecting end-of-life care, states that a doctor refusing to perform assisted dying must signal it to competent authorities that will find a consenting doctor.151 Other provinces (or territories), either directly or through delegates, have instead imposed a referral obligation upon objecting healthcare professionals or, alternatively, an obligation to make an “effective transfer of care.”152 The province of Ontario has also opted for an “effective referral” obligation,153 which must be Truchon v. Procureur général du Canada, 2019 QCCS 3792. Act respecting end-of-life care, S-32.0001, c. 2, Sec. 31. 152 In Nova Scotia, the policy requires the objecting physicians to make an effective transfer of care. The College of Physicians and Surgeons of Nova Scotia, Professional Standard Regarding Medical Assistance in Dying, ss. 4.2 and 9.1.2, 2016, https://​cpsns​.ns​.ca/​wp​-content/​uploads/​2016/​06/​ Medical​-Assistance​-in​-Dying​-Standard​.pdf, last accessed May 6, 2020. This is also the case in British Columbia, where the policy requires the objecting physicians to make an effective transfer of care. The College of Physicians and Surgeons of British Columbia, Professional Standard and Guidelines – Medical Assistance in Dying, 2017, www​.cpsbc​.ca/​files/​pdf/​PSG​-Medical​-Assistance​-in​-Dying​.pdf, last accessed May 6, 2020. Prince Edward Island’s policy does not impose an “effective transfer of care,” but it requires them to make access to another physician available. The College of Physicians and Surgeons of Prince Edwards Island, Policy on Physician-Assisted Dying, p. 4, 2016, https://​assets​.documentcloud​ .org/​documents/​2752692/​Physician​-Assisted​-Dying​-Feb​-29​-16​.pdf, last accessed May 6, 2020. In Saskatchewan, the policy requires physicians to provide information and resources, provide timely access to another physician or other resources. The College of Physicians and Surgeons of Saskatchewan, Policy – Physician-Assisted Dying, sec. 1, 2015, www​.cps​.sk​.ca/​imis/​Documents/​Legislation/​Policies/​ POLICY​%20​%20PhysicianAssisted​%20Dying​.pdf, last accessed May 6, 2020. In Yukon, the policy requires objecting physicians to provide access to non-objecting physicians. Yukon Medical Council, Standard of Practice, p. 3, 2018, www​.yukonmedicalcouncil​.ca/​pdfs/​MAID​.pdf, last accessed May 6, 2020. 153 Medical Assistance in Dying Statute Law Amendment, S.O. 2017, c. 7. 150 151

Constitutionalism and religion in common law North America  135 performed in good faith and “in a timely manner to allow patients to access care,” so as to ensure that patients do not suffer “adverse clinical outcomes because of a delayed referral.”154 Ontario’s referral obligation was challenged soon after it entered into force. Plaintiffs – mainly medical doctors with strong religious beliefs – argued that requiring them to make such a referral essentially amounted to forcing them to participating in an assisted suicide, which violated their freedoms of religion and conscience. Although the Ontario Divisional Court indeed found a violation of the plaintiffs’ freedom of religion, it held that the referral rule could be justified in a free and democratic society as it sought to protect vulnerable patients from harm by securing their constitutional right to equitable access to publicly funded healthcare. In the absence of such referral obligation, that right would be compromised. That obligation was thus characterized as a reasonable limit on the doctors’ freedom of religion.155 Contrary to the jurisdictions that seek to ensure that patients faced with a religious-based medical refusal to help them end their life are not left alone, some provinces have preferred not to make referrals mandatory.156 As can be seen from the discussion above, it is the provinces (and territories) that are most susceptible of regulating aspects of the decision-making process that may bring religious concerns to the fore, through the exercise of their jurisdiction over healthcare. The regulatory patchwork that ensues is somewhat replicated in the United States, but for different reasons. As was explained, the current constitutional regime in Canada does recognize a right to assisted suicide or, to put it in a milder way, a right to “die with dignity,” which may be qualified but not annihilated. Canadian provinces and territories must inevitably take that into consideration when they purport to regulate in that area. By contrast, American states enjoy more leeway in that respect, as no such right is recognized in the United States. Indeed, two 1990s cases clearly establish that the American constitutional order does not recognize any autonomous right to assisted dying or “dying with dignity.” In the first case, Glucksberg v. Washington, the constitutionality of Washington State’s laws prohibiting assisted suicide was challenged by physicians, patients, and activists under the Fourteenth Amendment’s Due Process Clause.157 The trial judge had ruled in favor of the plaintiffs, on the basis that life-ending decisions made by terminally ill patients are highly personal and intimate, and are, as such, protected by the Due Process Clause as a legitimate exercise of these patients’ right to liberty. In addition, he held that for constitutional purposes, no significant distinction could be made between the previously recognized right to refuse life-saving treat-

154 The College of Physicians and Surgeons of Ontario, Medical Assistance in Dying – Conscientious objections, 2018, s. 11, www​.cpso​.on​.ca/​Policies​-Publications/​Policy/​Medical​-Assistance​-in​-Dying, last accessed May 6, 2020. 155 The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579, appeal dismissed by the Ontario Court of Appeal at: 2019 ONCA 393. 156 See, for instance, Newfoundland and Labrador, the College of Physicians and Surgeons of Newfoundland and Labrador, Standard of Practice – Medical Assistance in Dying, www​.cpsnl​.ca/​web/​ files/​2017​-Mar​-11​%20​-​%20MAID​.pdf, last accessed May 6, 2020; Manitoba, The Medical Assistance in Dying (Protection for Health Professionals and Others) Act, C.C.S.M., c. M92, sec. 2(2). 157 U.S. Constitution, XIV Amendment, s. 1: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

136  Constitutions and religion ment158 and consenting to physician-assisted suicide. A divided appellate court reversed that judgment. In the second case, Quill v. Vacco,159 the plaintiffs challenged the constitutionality of the New York laws prohibiting assisted suicide, also under the Fourteenth Amendment’s Due Process Clause and, alternatively, under the Equal Protection Clause. Contrary to his colleague in Glucksberg, the trial judge rejected the challenges. He notably refused to equate assisted suicide with the refusal of life-saving treatment – the latter amounting to letting nature take its course, as opposed to the former, which requires that a chemical substance be given to the patient. However, an appellate court reversed that judgment, arguing that the distinction made by the trial judge had no rational ground and thus violated the Equal Protection Clause. Appellate courts’ decisions in both Glucksberg and Quill were appealed to the U.S. Supreme Court, which upheld both state laws. In Glucksberg,160 it unanimously held that assisted suicide was not protected by the Bill of Rights’ Fourteenth Amendment, as such a practice ran counter to national traditions and practices. The Supreme Court ruled that Washington’s prohibition of assisted suicide, which was grounded on a legitimate interest in regulating medical ethics, was rational, as it sought to preserve human life and protect vulnerable people from being encouraged to commit assisted suicide. In Quill, the Supreme Court also confirmed that New York’s ban on assisted suicide did not violate the Equal Protection Clause. The Supreme Court ruled that the state’s legal framework applied even-handedly, as it granted the right to refuse life-saving treatment to everyone and prohibited assisted suicide for everyone as well. It further confirmed the finding of the trial judge that there was indeed a difference between refusing life-saving treatment and assisted suicide. Finally, it also held that the state had a legitimate interest in prohibiting assisted suicide. As a result of Glucksberg and Quill, there is no such thing as a right to die, or a right to die with dignity, protected by the U.S. Constitution. This entails on the one hand that no legislature can be compelled to legalize assisted suicide and on the other, that a legislature is free to regulate (or not) whether and how physicians can exercise a right to refuse assistance to a patient wishing to end his or her life. The situation in the United States is thus markedly different from that existing in Canada. Indeed, in the former, any conflict between a patient’s statutorily created “right to die” and a physician’s refusal to give him or her assistance would be resolved in favor of the latter if that refusal is grounded upon the physician’s conscientious or religious beliefs, which are protected by the Bill of Rights’ First Amendment. As well, any conflict between a “right to die” granted in a state constitution, and the freedoms of conscience or religion recognized in the U.S. Constitution would be resolved in the same way, as state laws must respect generally applicable constitutional prescriptions. Within such constitutional boundaries, however, end-of-life decisions – including assisted suicide – fall under the states’ jurisdiction. Practically speaking, states’ legislative policies concerning such decisions vary widely. Assisted dying is currently available in eight states, as well as in the District of Columbia,161

160 161 158 159

Cruzan v. Director Missouri Department of Health, 497 U.S. 261 (1990). Vacco v. Quill, 521 U.S. 793 (1997). Washington v. Glucksberg, 521 U.S. 702 (1997). Death with Dignity of 2016, D.C. Law 21–182.

Constitutionalism and religion in common law North America  137 Oregon162 (recognized as the first state to have legalized assisted dying), Washington,163 Vermont,164 California,165 Montana,166 Colorado,167 Hawaii,168 and New Jersey.169 It should be noted that California, Oregon, Vermont, and Washington go further than most Canadian provinces in respecting physicians’ conscientious objections and grant them the right to refuse to give referrals. California even recognizes a right to refuse to give information about patients’ rights to assisted dying.170 Perhaps due to the salience of religion as a most significant variable in U.S. politics, state legislatures have dealt with the conscientious objection issue head on instead of leaving it to medical regulatory bodies. States accepting assisted suicide remain an exception. Indeed, most characterize it as manslaughter or felony. Massachusetts even labels assisted suicide as first or second-degree murder.171 At the other end of the spectrum, Ohio deems it to be against public policy, but shies away from criminalizing it. Instead, it grants an injunction in any action pertaining to assisted suicide if it appears that the enjoined party is about to take part in assisted dying, is taking part in assisted dying or has taken part in assisted dying.172

5. CONCLUSION This chapter has endeavored to illuminate prominent points of comparison and differences on religion and constitutionalism in Canada and the United States. While certain transversal frameworks were underscored, bringing a particular coherence between the countries, the salience of religion as a political variable in the United States173 highlights a foundational difference with its neighbor to the North. Nevertheless, the rise of a French-inspired laïcité in

162 Death with Dignity Act, ORS 127.800-897. The act faced a legal challenged under the federal Controlled Substances Act, but was upheld by the Supreme Court in Gonzales v. Oregon, 125 S. Ct. 1299 (2006), in which the court ruled that physicians could administer lethal doses of controlled substances under the Death with Dignity Act. 163 Death with Dignity Act, RCW 70-245. 164 Act. 39: Patient Choice and Control at End of Life Act, S. 77. 165 End-of-Life Options Act, AB-15. 166 Physicians cannot be prosecuted for having performed physician-assisted suicide on terminally ill patients, as this is not against Montana’s public policy. See Baxter v. Montana, 2009 WL 5155363. 167 End-of-Life Options Act, C.R.S. 25–48. 168 Our Care, Our Choice Act, HB 2739. 169 Medical Aid in Dying for the Terminally Ill Act, A1504. 170 End-of-Life Options Act, supra note 165, s. 443.14 (2); Death with Dignity Act, supra note 162, sec. 127.885 §4.01 (2); Act. 39: Patient Choice and Control at End of Life Act, supra note 164, sec. § 5285. 171 This is provided by the common-law. See Pro-con, Euthanasia, https://​euthanasia​.procon​.org/​ view​.resource​.php​?resourceID​=​000132, last accessed May 6, 2020. 172 Ohio Revised Code, sec. 3795.02 (A) and sec. 3795.02 (B). 173 The fragmentation of political power and the role played by religious groups remain significant elements of study in the United States, as highlighted by Christopher L. Eisgruber and Mariah Zeisberg, Religious Freedom in Canada and the United States, 4(2) International Journal of Constitutional Law 244–68 (2006).

138  Constitutions and religion Quebec, as evidenced by the recent regulation of religion in public spaces,174 challenges the constitutional coherence of Canada’s stance on religious diversity.175 Indeed, while religion commands political currency in the United States, religious difference in Canada – as expressed through much of the case law examined here – has become an important comparative touchstone on freedom of religion and, as put by one author, “a viable alternative to the rather idiosyncratic American jurisprudence in that area.”176 A further marker of difference between these two countries is found in the increasingly pervasive interrelationship between religious freedom and free speech in the United States, to the extent that the latter looms large over the former’s domain, as recently evidenced in Masterpiece Cakeshop. This American decision stands in sharp contrast to the even more recently decided Trinity Western University cases in Canada, where it was decided that religious rights should not trump other interests, and particularly, those of the lesbian, gay, trans, bisexual and queer community. In closing, constitutionalism and religion in North America, as elucidated through this chapter, represent an exceptionally fertile terrain of study – one which warrants and invites further cross-fertilization of ideas and reflections.

Act respecting the laicity of the state, SQ 2019, c. 12. For an exploration of Quebec’s distinct socio-legal approach to religion, see Jean-François Gaudreault-DesBiens, Religious Challenges to the Secularized Identity of an Insecure Polity: A Tentative Sociology of Québec’s ‘Reasonable Accommodation’ Debate, in Legal Practice and Cultural Diversity 151–75 (Ralph Grillo et al. eds., 2009). 176 Ran Hirschl, Going Global? Canada as Importer and Exporter of Constitutional Thought, in Canada in the World: Comparative Perspectives of the Canadian Constitution 308 (Richard Albert and David R. Cameron eds., 2017). 174 175

8. Religious freedom in Latin American constitutions: from freedom from the Catholic Church to freedom from “gender ideology” Julieta Lemaitre Ripoll

1. INTRODUCTION Comparative constitutionalism requires a detailed study of national contexts and histories in order to understand the variations in meaning across jurisdictions, and to avoid the assumption that constitutional text is transparent and its translation is simply a matter of speaking the language. Government practices and existing background rules shape constitutional meanings over time, as do social movements and political struggles. In the specific case of the management of church-state relations and religious freedom, the text and the cases must be read in the context of an agitated history of church and state entanglement and separation in the region, and the various social and political tensions that have fired heated debates – even wars – over disestablishment. Therefore, this chapter reviews Latin American constitutional texts in the historical context, tracing the institutional changes in Catholic establishment since the early nineteenth century, as well as the different modes of contemporary disestablishment in Latin America. It is based on a comparison of constitutional texts,1 done in dialogue with a review of the history of the Latin American church and its relationships with Latin American states,2 the history of Latin American constitutionalism3 and church documents on the relations between church and state.4 It also uses, for general contemporary context, the U.S. State Department’s report on the state of religious freedom in the world.5 It examines the different ways in which constitutional texts 1 This chapter is based on a review of the current, and some of the past, constitutions of the following countries: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, Guatemala, Nicaragua, Peru, Uruguay, Mexico and Venezuela (Latin American countries not included in this review, for reasons of space and extension, are El Salvador, Honduras, Panama, Paraguay and the Dominican Republic). The chapter also includes some representative cases, although it is not based on a detailed jurisprudential review. 2 This section is based on authoritative general histories of the Catholic Church in Latin America: Enrique Dussell, The Church in Latin America From Colonialism to Liberation Theology (1981); John Lynch, New Worlds: A Religious History of Latin America (2012); J. Lloyd Mecham, Church and State in Latin America: A History of Politico Ecclesiastical Relations (1966). 3 For general histories of political liberalism in Latin America, see José Antonio Aguilar, En pos de la quimera: Reflexiones sobre el experimento constitucional atlántico (2000); Roberto Gargarella, Los fundamentos constitucionales de la desigualdad (2005); Ivan Jaksci and Eduardo Posada Carbó, Liberalismo y poder (2011). 4 The original documents were read from the English version in the Vatican website. 5 Available at www​.state​.gov/​j/​drl/​rls/​irf/​religiousfreedom/​index​.htm​#wrapper, last accessed July 22, 2020.

139

140  Constitutions and religion that are similar in affirming religious freedom and separation of church and state in practice have different meanings, depending on the paths of disestablishment in each national history and on the results of the successive struggles over its meaning. Latin American nations all established the Catholic Church and faith as the state religion in the nineteenth century; variations in religious freedom concerned merely whether or not other forms of private worship were allowed. As the century advanced, liberals advocated for – and generally implemented – disestablishment, and enshrined freedom of religion and conscience. These transformations were resisted by the Catholic Church and Catholic political parties, until in the 1960s the church changed its official position, supporting disestablishment and religious freedom. Its definition of religious freedom, however, is centered on the right of the Catholic Church, as a sovereign entity, to be independent from the state, to represent a society that is distinct from civil society, with its own authorities and its own laws, and under a state that has a positive view of religion and wants to cooperate with churches for the public good. Increasingly, Latin American countries have adopted this form of disestablishment, protecting and cooperating with churches of different denominations, and granting them privileges such as tax breaks and public funds for the provision of public services. In the strongest version of friendly cooperation in formerly officially Catholic nations, while the state has no official religion, it grants certain privileges to the Catholic Church as the historical and majority religion. This chapter traces this arc and concludes by examining its implications for sexual and reproductive rights.

2.

CONFESSIONAL CONSTITUTIONS IN THE NINETEENTH CENTURY

Throughout the existence of most of Latin American countries, the powerful presence of the church in everyday life was naturalized as part and parcel of civilization, with “civilization” used as a synonym for Christianity; and the Catholic Church was equally naturalized as the only Christian church. Laws were subsidiary to religious virtue and virtue defined by the Catholic Church. Simón Bolívar famously said: religion governs man in his home, in his office, within himself; it alone has the right to examine his intimate conscience. Laws on the contrary look on the surface of things. They do not govern except outside the house of the citizen.6

This phrase could more exactly be read by replacing the word “religion” with the words “Catholic Church”: it governed, or presumed to govern, every citizen’s private life. Indeed, the Catholic Church – through its control of public registers, marriages and cemeteries, as well as through the pastoral duties of its priests, as much as through its control of most schools, hospitals and charities – exercised a form of government, or at least supervision, of the private lives of Latin Americans; and laws took second place after that power. The church decided who could be married and who could not, and therefore which children had full legal rights (legitimate children) and which did not. The stigma on illegitimate children, born out of wedlock, prevailed throughout their lives and prevented them from entering certain schools

6

Cited in Lynch, supra note 2, at 180–81.

Religious freedom in Latin American constitutions  141 and civil service. The church also directly controlled schools and universities, censored books and periodicals, and controlled hospitals, charities and missions to indigenous territories.7 During the colonial period the Catholic Church’s power derived from its institutional position as part of the governing apparatus, as well as from its establishment as the official religion of the state. In the Spanish colonies, the church was so central to the colonial regime that it provided the only legal and moral justification of conquest and colonization, which was the conversion of indigenous peoples to Catholicism. Catholic priests were consistently present among the first colonizers and participated actively in governing the colonies. The symbiotic relationship between church and colonial bureaucracies meant that church elites held significant administrative power and wealth in the colonies, and subscribed to the regalist understanding of the identification between church and Crown, whereby the Crown ruled over the church. The Crown had patronage rights, bestowed directly by the pope; and patronage meant the Crown directed the clergy, funded church activities, chose its leaders and gave or withheld authorization for the pope to instruct the national clergy (the right of exequatur).8 In exchange for patronage, the Crown placed the church in charge of evangelization of indigenous peoples and of colonizers, who often acted both as if they ruled the new lands independently from the Crown as well as untethered by Catholic morality. Both problems required an observant eye by the church, and also by the Crown. Establishment during the colonial period excluded any other religion, embodying the inheritance of Spain’s war against Muslims, the brutal “cleansing” of Spanish society of centuries of Islam and Judaism, and European wars between Catholic and Protestant countries, as well as the encroachment of other European powers attempted against the Spanish empire. The Inquisition, imported to the Americas, also concentrated on the elimination of any persistence of African religions among the slaves, which were often feared as a step toward slave rebellion. Hence, all non-Catholic religions were understood to be a threat not only to true faith, but also to the political power of the colonial system and thus a political threat to the Crown, and were eliminated with vigor. The first Latin American constitutions were confessional, following the model of the 1812 Cádiz Constitution, and declared Catholicism as the state religion. Independence movements had first flourished with support from the clergy when France invaded Spain; but after Napoleon’s demise, Pope Pius VII supported Ferdinand VII’s return to power and military attempt to keep Spain’s colonies. He also denounced rebels as defying the will of God, including the liberal clergy that championed independence, and even adopted an encyclical that defined independence movements as sinful (Et si longissimo 1816.) These actions sowed bitter hostility against the church among independence leaders,9 even as they attempted to obtain Vatican recognition for the newly independent states as well as the extension of patronage. The Vatican’s staunch opposition to independence was rooted in its growing suspicion toward liberalism, the political doctrine that justified independence movements. As the first liberal revolutions failed in Catholic France and Spain, and the church returned to power with the monarchies, it made sense for the Vatican to remain committed to the monarchies that

7 In many countries, Catholic missionaries had ample civil powers to govern over the indigenous populations they “civilized.” This entailed quite a lot of power: in Colombia, for example, in 1902 75 percent of the country was under direct missionary rule (Lynch, supra note 2, at 156). 8 For a detailed, updated description, see Lynch, supra note 2. Still relevant classics on church history in Latin America are Dussell, supra note 2; Mecham, supra note 2. 9 Lynch, supra note 2, at 119–23.

142  Constitutions and religion had served it well. Initially, the Vatican ordered the removal of its priests from the former colonies, retreating with the defeat of the Spanish Crown; its return was marked by an insistence on establishment, a refusal of any attempt of proximity that resembled patronage and the assertion of the Vatican’s authority. This resistance was described as a “Romanization” of the previously very Spanish Catholic Church. The church’s rejection of disestablishment and the Vatican’s disciplining of the Latin American churches had direct links to Catholic dogma and were not only a grab for power. The church put forward a theory of objective, universal truth about moral knowledge specifically. Being the bearer of this truth, revealed by God, conferred upon the church the responsibility to preach and convert, and to defend its doctrine. This responsibility bore the right and duty to ensure that civil governments followed its guidance; to refuse this responsibility by accepting disestablishment would thus be a grave error, resulting in the separation of objective moral knowledge from the stewardship of nations. This dogma led directly to establishment in the new republics. The confessional model not only made Catholicism the religion of the state; it also limited the rights of other faiths, with the assertion that “error has no rights.”10 Confessional constitutions generally excluded religious freedom for other faiths: the majority of constitutions mentioned not only that Catholicism was the religion of the state, but also that it was the only religion allowed public worship. In some countries even private worship of other religions was prohibited and constitutions announced Catholicism was the only accepted religion “to the exclusion of all others.” Therefore, the difference between most nineteenth century constitutions in Latin America lies not in whether there is a Catholic establishment (there is), or whether public worship of other religions is allowed (it isn’t), but whether private worship of other religions is against the law; the more liberal constitutions allowed it, the more conservative prohibited it. For example, Chile’s 1833 Constitution (Article 5) both established the Catholic Church and declared that public worship of any other religion was prohibited: an 1857 law declared that private worship of other religions was legal.11 In contrast, Peru’s 1839 Constitution flatly stated that any religion other than Catholicism was prohibited.12 Religious freedom as we understand it today was severely infringed by Catholic establishment, and this infringement remained unchecked even under those constitutions that allowed private worship. For example, an important concern was the burial of the dead: the church controlled most cemeteries, which meant there was no place to bury the dead of other religions. Larger cities such as Lima and Mexico City had so-called “Protestant” or “English” cemeteries that serviced travelers mostly, and sometimes Jews. Otherwise, non-Catholics were buried privately – in a field, for example – in marked or unmarked graves. Another deeply felt limitation was that of religious marriage and registry of children: only children born to Catholic marriages were considered legitimate, with full inheritance rights; while other children had severely limited rights. Schools had to teach Catholic doctrine; and as public education spread, school books were censored by the Catholic Church with the power of an established religion.

See Article 12 of the Cádiz Constitution, cited in footnote 1. Chile, Ley Interpretativa del artículo 5 de la Constitución, Santiago, July 27, 1865. Article 5 of Chile’s 1833 Constitution reads: “La religión de la República de Chile es la Católica, Apostólica, romana; con la exclusión del ejercicio público de cualquier otra.” 12 Peru, 1839 Constitution, Article 3: “Su Religión es la Católica, Apostólica, Romana, que profesa sin permitir el ejercicio de cualquier otro culto.” 10 11

Religious freedom in Latin American constitutions  143 Therefore, establishment defined the content of freedom of religion: in a country with a Catholic establishment, freedom of religion traditionally meant that the private practice of other religions was tolerated as a matter of individual conscience, but not allowed in the public sphere. Famously, Simón Bolivar wanted his 1826 Constitution for Bolivia to allow other religions, but met opposition and eventually included only the tenet that no other religion would be allowed to worship publicly (i.e. private worship was allowed.) It did, however, include the rare phrase that “there is no human power over conscience.” Literally, Article 6 says: “La Religión Católica, Apostólica, Romana, es de la República, con exclusión de todo otro culto público. El Gobierno la protegerá y hará respetar, reconociendo el principio de que no hay poder humano sobre las conciencias.” (“The Catholic, Apostolic, Roman religion is the religion of the Republic, to the exclusion of any other (form of) public worship. The Government will protect it and guarantee it will be respected, recognizing however there is no human power over conscience.”) No other Latin American constitution included the phrase “there is no human power over conscience.” As the Vatican finally accepted Latin American independence from Spain, it also successfully rejected the possibility of patronage and exequatur rights for the new states, opposed the independence of national Catholic churches, and led what was known as the Romanization of the Catholic Church in the region – that is, its submission to Vatican control after hundreds of years of being ruled by the Spanish Crown. Through concordats and political pressure, it ensured its own power – including the power to be the only religion that could be practiced publicly – as well as control of vital public goods such as schools, cemeteries and national registries. As the nineteenth century advanced, modernization and the rise of liberalism in Italy meant for the Vatican, the painful loss of the papal states, as well as a significant threat to its moral authority and a loss of vocations and laity.13 Initially sympathetic to liberalism, the church under the leadership of Pope Pius IX felt betrayed by the loss of the papal states in the wave of Italian unification and turned against it. Vatican resistance to liberalism as a political doctrine can be traced directly not only to the loss of influence in Latin America, but also – and perhaps especially – to its losing the papal states to Italian liberals between 1861 and 1870. The church’s response was to construct liberalism as an ideological rival to its doctrine and, in its relations with Latin America, to reinforce the ongoing process of “Romanization” of national churches begun by Pope Pius IX’s predecessors. Rome maintained a measure of power through national churches that were subordinate to the pope, and that kept their privileges in countries where the majority was formally Catholic and states were weakened by civil wars and poverty. However, as the church’s duty to provide stewardship appeared increasingly to be a duty to oppose liberalism, the church lost influence and support in many of the new republics where liberalism emerged as the dominant ideology, and liberal parties also became the parties of disestablishment.14

13 Italy adopted its contemporary shape in the nineteenth century; much like Latin America, it was ruled by foreign powers and gained its independence through a process known as reunification. Initially the Vatican – still wounded by the Napoleonic War, which resulted in the exile of the pope – supported reunification. However, the liberals that led it took over the papal states, leaving the pope with no territorial rule and a self-described “prisoner in Rome” in the contemporary Vatican City. 14 See Lynch, supra note 2; Dussell, supra note 2; Mecham, supra note 2, for descriptions of this decline; see, for example, the cases of Chile and Argentina.

144  Constitutions and religion

3.

LIBERAL ROADS TO DISESTABLISHMENT AND RELIGIOUS FREEDOM

Liberal proposals for disestablishment varied in each country in the region, depending on the different processes of independence from the Spanish empire and on the relative wealth and number of national political actors. While in some countries the colonial church had a weak presence, in others it was highly influential in various aspects of life. In colonial Lima, for example, the Catholic Church owned one-third of all urban property and was the principal money lender.15 In Argentina, by contrast, the colonial church never had the level of wealth of more central provinces of the Spanish empire; consequently, throughout the nineteenth century the Peruvian church had a much greater influence in national affairs than the Argentinean church. However, power was also a matter of relative strength: the church also had significant influence in Colombia, due not so much to the wealth of the church itself, but rather to the extreme poverty and weakness of the emerging state. Another salient influence on the trajectory of national disestablishment was the relative presence and strength of liberal and conservative parties. The initial independence forces soon split into roughly liberal and conservative forces in most countries; and by the mid-nineteenth century many, but not all, Latin American countries had vigorous conservative parties that were hugely influential in the consequent status of the church. Conservatives opposed republican versions of liberalism and Anglo-American influence, including religious freedom. They defended a Hispanic version of liberalism that they called conservatism, because it built on the historic presence of Spain in the region and on their own Hispanic culture. Conservative parties tended to promote corporative forms of representation, as in colonial government, as well as a Hispanic and Catholic national identity. They fostered an alliance between an expanding class of landowners, urban white elites and the Catholic Church, and challenged liberal parties inspired by the American and French revolutions and supported by other social groups – not only some urban white elites and emerging businessmen, but also artisans, tradesmen and other urban middle sectors of the population. In the region as a whole, nineteenth century civil wars between liberals and conservatives were also religious wars, for or against the establishment and for or against freedom of religion. With exceptions – notably Colombia, where conservatives eventually prevailed – liberals won these wars by narrow margins; and the form of ensuing disestablishment and religious freedom depended on whether the liberal triumph was convincing enough to support these deeply unpopular measures. The Vatican considered that disestablishment was one of the gravest mistakes of liberalism, as well as a sin – a consideration that cemented the church’s alliance with conservative parties. Successive popes wrote encyclicals denouncing both disestablishment and liberalism. Pius IX, for example, in his famous Syllabus of Errors of 1864, specifically attacked the liberal Mexican laws that disestablished the Catholic Church (the Reform laws, or La Reforma).16 Eventually, the political alliance between the Catholic hierarchy and conservative parties bound the fate of establishment and religious freedom to the triumph or defeat of these parties, Lynch, supra note 2, at 109. See Gregory XVI Mirari vos (1832), Pius IX Singulari nos (1834), Quanta cura and Syllabus (1864). See also Pius X Vehementer nos (1906) explaining the errors of disestablishment – a position shared by Popes Benedict XV, Pius XI and Pius XII. 15 16

Religious freedom in Latin American constitutions  145 in elections or in war. Sometimes church hierarchy itself fanned the flames of war against liberals, convincing conservatives of the holiness of church interests in power and in governance. In some countries – notably Colombia and Mexico – these religious civil wars extended into the twentieth century.17 Other countries were spared religious violence; but even those countries experienced periods of intense political agitation and debate between liberals and conservatives over the privileged status of the Catholic Church, and civil wars fanned liberal resentment of establishment and the church. Liberals advanced two distinct modes of disestablishment in the new republics: on the one hand, the radical anticlericalism of the French Revolution; and on the other, a more moderate church-state separation known as laicidad. Laicidad reforms implemented a model of disestablishment in the region that limited the presence of the church in the public square, while respecting freedom of religion and conscience in the private sphere, and gave some legal recognition and special protection for all organized religions and all faiths and beliefs. Also known as Estado Laico, it harked back not to the revolution, but to the “Reform” of the Mexican liberals of the 1850s – perhaps the most ambitious program of disestablishment in the nineteenth century, followed closely by that in Guatemala. It included the disappearance of many of the establishment privileges of the Catholic Church, such as the existence of taxes earmarked for the Catholic Church; the ownership of vast and untaxed rural and urban property; the power to provide sanctuary to criminals; and the exclusive right to judge priests who committed criminal offenses (fuero). In addition, Reform laws created the possibility of civil (non-religious) marriage and divorce, public cemeteries, public assistance for the poor, public hospitals, a public register of births and deaths, and compulsory public education – all crucial issues for non-Catholics seeking religious freedom in Latin American countries. In spite of conservative opposition to disestablishment, laicidad reforms were not, like anticlericalism, overtly hostile to religion. Religion remained an area of significant importance for people’s private lives and many liberals were devout Catholics – in fact, some of the leading liberals of the nineteenth century were clergymen.18 Some liberal provisions – for example, those limiting the political activities of the clergy and prohibiting the entry of foreign clergy into the country, as in Guatemala, Mexico and Nicaragua – seem to correspond to the partisan activities of the church in the civil wars, rather than to an anti-religious animus. At the time, however, many of these laicidad reforms were sorely resented by some national churches: for example, in Ecuador, the rallying cry of resistance to Alfaro, led by priests, was “God or the Devil;”19 and the conservative rebellion opposed to liberal Reform laws in Mexico in the 1850s flew its flags under the demand “Religión y fueros!” – loosely, religion and special rights for priests. Anticlericalism, on the other hand, embraced a vigorous rejection of religion in general, and the Catholic Church in particular, as an enemy of Enlightenment. It was reflected in the 17 Colombia’s mid-century civil war, known as La Violencia, pitted liberals against conservatives, with the former being backed by the Catholic clergy and alleging its defense of traditional Catholicism. In Mexico, the 1929 bloody Cristeros rebellion defended the Catholic Church from the values and laws of the 1916 revolution. 18 For example, the Mexicans Miguel Hidalgo and José María Morelos. And in Colombia, 16 of the 53 men who signed the Declaration of Independence from Spain were priests – a situation that was by no means uncommon, as rebel priests in Latin America (the church itself supported the Crown) were part of the independence movements. 19 Lynch, supra note 2, at 212.

146  Constitutions and religion platforms of some nineteenth century liberal political parties, but remained most active in the writing of liberal and left-wing intellectuals and seldom made it into constitutional texts. It came first through republican aspirations inspired both by the American Declaration and by the French Revolution, both of which premised disestablishment. Anticlericalism was ardently defended, especially by those who looked to France, which proclaimed the emancipatory end of all organized religion and the enshrinement of reason in its stead. Anticlericalism flourished at different times in Latin America, consistently less radical than that of the French Revolution and closer to the ideals of the American Declaration. It also kept ties to European liberalism, which became increasingly anticlerical as it confronted the Vatican, but found a local expression in resistance to the many abuses of the clergy in the region – especially foreign priests accustomed to exercising governance over Indians and slaves, and enjoying vast untaxed personal wealth. During the late nineteenth century, anticlericalism also grew in the shadow of the regional influence of French positivism as a cultural commitment to scientific truth and the aspiration to modernity as reason and science. Under the sway of positivism, Latin American liberals mistrusted religions, identifying them with superstition, ignorance and exploitation, and as an obstacle to progress. Rather than revolutionary violence against the church, as in both the French and the Mexican revolutions, liberal positivism envisioned a gradual dying out of oppression and religious superstition through scientific knowledge and education. Positivist anticlericalism was exemplified by the Masonic secret society, which in the nineteenth century also found itself in opposition to the Catholic Church (see Pio IX’s Quanta Cura encyclical against freemasonry and “the errors of modernity.”)20 Anticlericalism found its most radical expression in Mexico during the Mexican Revolution (1910–17), and its bloody developments became the regional representation of the dangers of radical anticlericalism. The revolution was ardently hostile to the Catholic Church as a rival to state power and as an obstacle to achieving freedom and equality. In this spirit, the Revolutionary Constitution of Mexico in 1917 adopted a radical limitation of church rights, built on the liberal Reform lawsof 1857.21 Mexico and neighboring Guatemala had the only anticlerical constitutions in Latin America, but even those were never fully implemented. Resistance ran strong and the Cristero rebellion of 1929 led to an active tolerance of Catholic worship and influence in the country, known as the modus vivendi, while preserving the anticlericalism of the Constitution.22 Later in the twentieth century, however, the Catholic Church had changed its official position of resisting all laicidad-oriented reforms and supporting establishment. Instead, the Vatican veered toward strong protection of freedom of religion – not for the minority faiths that had for centuries struggled to survive in Latin America (i.e. the European Protestant churches and Jews), but a strong protection of freedom of religion for the Catholic Church. This change of direction gave the notion of religious freedom a new meaning in the region and reignited old anticlerical flames among liberal ideals.

Pio IX, Quanta cura, 1864. For an authoritative account, see Roberto Blancarte, Historia de la Iglesia Católica en Mexico (1992). 22 See, for example, José Bravo Ugarte, Cómo se llegó al modus vivendi de 1929, in Temas históricos diversos 265–75 (1966) or Del conflicto a la conciliación: Iglesia y Estado en México, siglo XX (Franco Savarino and Andrea Mutolo eds., 2006), among others. 20 21

Religious freedom in Latin American constitutions  147

4.

CATHOLIC TRANSFORMATIONS OF ESTABLISHMENT AND RELIGIOUS FREEDOM

Until well into the twentieth century, the Vatican defended establishment, underwritten by concordats that enshrined establishment in international law.23 It only accepted, and even advocated for, disestablishment in those countries where Catholicism was a minority religion, and it was the only circumstance in which it thought freedom of religion was a natural right. In the 1960s, however, during the process of updating itself and adapting to contemporary life which led to Vatican II, the Catholic Church accepted disestablishment in all nations. Its definition of disestablishment, however, was not reflected in anticlericalism or in laicidad. Instead, it sought a separation that would allow it to keep many of the privileges acquired through the concordats, and to defend its freedom and independence from governments. But by the mid-twentieth century, part of the clergy and the Catholic faithful were advocating for this mode of disestablishment. They saw separation from the state as a guarantee of the church’s independence – especially when faced with an authoritarian government, but also even in democracies, where they felt church autonomy was curtailed when it received funds from the state or where the hierarchy was seen as blessing government acts. An independent church, they reasoned, could provide protection – even literal sanctuary – to citizens threatened by the state, as well as a space for resistance to authoritarian rule. During the long night of regional dictatorships, some national churches – notably in Chile, Guatemala and El Salvador, and at some point in Brazil – denounced tortures and disappearances, and called for disestablishment. Many of the Catholics demanding disestablishment for these reasons in Latin America were inspired by liberation theology and had additional reasons: their cause was not institutional autonomy per se, but the identification of the church with the poor and the downtrodden. For these nuns and priests and faithful, their commitment to Catholicism entailed sharing the hard fate of the poor and dedicating their lives to alleviating the suffering of others. The central tenet of liberation theology was that the political activity of the church should be aimed at alleviating the suffering of the poor – not only through charity, but also through programs aimed at organizing communities to help themselves and become autonomous. These claims had their roots in the so-called social doctrine of the church, best represented by Pope Leo XIII’s pro-worker encyclical Rerum Novarum, as well as in the Catholic Action (Accion Catolica) groups organized to help the poor, and in some countries in new social parties known as Christian or Catholic Democratic Parties. But liberation theology went further, calling for radical political action to challenge economic structures that reproduced inequality and injustice. In the liberationist’s view, disestablishment was necessary for a church called to stand with the poor, and not with the powerful.24 This interest in the social ideals of Catholicism and in the need for Catholic independence from authoritarian rule paradoxically met fertile ground in U.S. Catholicism. During the Cold War, the United States advocated for religious freedom in international law as a particular human right violated by the Soviet Union; Christianity and religious freedom were part of

See, for example, Leo XIII’s Immortale Dei of 1885. For a theoretical explanation of liberation theology in Latin America, see Gustavo Gutiérrez, A Theology of Liberation: History, Politics, and Salvation (1973). 23 24

148  Constitutions and religion the Western frame for its moral superiority over communist regimes.25 The Vatican’s alignment with Western democracy was embedded in its defense of its own definition of religious freedom as a fundamental human right, denied by the communist regimes that disavowed or prohibited all worship. This understanding was in accordance with the formulation of religious liberty in international law as an individual conscience right, but in tension with a Latin American understanding of religious freedom as an institutional right of the church when faced with authoritarian regimes.26 Commitment to the social ideals that should be advocated by a church that identified with the downtrodden, and commitment to individual religious freedom in communist regimes, led to the adoption in Vatican II of a new Catholic acceptance of disestablishment, modeled on the United States and influenced by the U.S. Catholic Church. It advocated for an understanding of disestablishment which did not preclude a favorable attitude toward religion. Instead, it was a disestablishment that – based on the United States’ experience of a multi-Christian nation – was favorably disposed toward the Christianity of the majority of citizens, and defined religious freedom as protecting the vigorous faith-based political activity of both churches and the faithful. The Vatican II formulation of disestablishment was adopted under the assumption that it would guarantee a stronger version of religious freedom, as in the United States, allowing the church to be independent from authoritarian regimes, but still maintaining favorable church-state relations and guaranteeing privileges. Proponents of disestablishment during Vatican II – especially American priest John Courtney Murray – argued that disestablishment benefited the church because religious freedom was the best guarantee of the independence of the institution. He argued that an independent church would be a better champion of the “objective moral order,” as it was not tied to governments.27 The encyclical Dignitates Humanae (1965), Vatican II’s declaration on religious freedom, offers implicitly three concurring definitions of religious freedom that better explain the church’s position.28 The first definition is religious freedom as liberty of conscience, whereby individuals have the right to follow their conscience and cannot be coerced to act against it. The second concurring definition is that religious freedom protects the social expression of conscience in collective acts of religion. These two definitions follow liberal conceptualizations of freedom of religion, coined to protect minorities from oppression by religious majority and by the state, and forged in the anvil of Europe’s numerous religious conflicts. Then the document adds a third definition of religious freedom that reflects the Catholic tradition of

25 “Christianity was appropriated by Western propagandists and policy-makers for their anti-communist arsenal” (Religion and the Cold War 2 (Dianne Kirby Basingstoke ed., 2003). 26 Linde Lindkvist, The Politics of Article 18: Religious Liberty in the Universal Declaration of Human Rights, 4 Humanity: An International Journal of Human Rights, Humanitarianism, and Development 429–47 (2013). According to Lindkvist, this formulation and the exclusion of the relationship between states and religious institutions suggest that Article 18 was the triumph of the United States and France, which did not want institutional rights for churches, but rather individual religious rights. Whatever the origin, the result was that it bound church defense of its own rights as an institution to the human rights formulation of individual religious rights, even against the power of the state in countries with Catholic establishments. 27 For Murray’s thoughts, see his classic John Courtney Murray, We Hold These Truths: Catholic Reflections on the American Proposition (2005). 28 Encyclical Dignitates Humanae 3 (1965).

Religious freedom in Latin American constitutions  149 objective knowledge of the moral order and its responsibility to provide stewardship to civil society. This third aspect defines religious freedom as protecting religion generally and creating the duty for governments to “show it favor” – not as in the first two aspects of protection of individual conscience, but because it is defined as a direction of lives toward God, and therefore as transcending temporal affairs and as a human good of the outmost importance. Governments must favor this activity because “the function of government is to make provision for the common welfare.” Further, the document adds that a government would “clearly transgress the limits set to its power, were it to presume to command or inhibit acts that are religious.”29 This view is reflected a well in contemporary canon law, which defines the religious freedom of the church as the right to preach and teach; the right to collective worship; the right to have its own rules and its own authorities; the right to pass judgment in temporal matters; the right to form educational, religious and cultural associations; and the right to own property and use it as it sees fit (Canon 747). It also includes the right of freedom of conscience, defined as the individual and institutional right not to be pressured to perform acts that violate religious beliefs. As such, freedom of conscience protects the Catholic duty to sanctify daily life by promoting religious values in the public space. Self-interest is not the only reason why the Catholic Church defends a robust notion of religious freedom that includes friendly cooperation with states . The church still also believes it has the responsibility of moral stewardship of the polity – a responsibility that comes from its knowledge of right and wrong. That is, in spite of openness to other religions, the church believes its own moral knowledge to be superior, imposing a particular burden on it. The wager on disestablishment rests, then, on the hope that a church separate from the state will be a better moral steward than a church that partners with national governments in confessional regimes, echoing Murray’s understanding of the strength of religion in the United States. Thus, the Catholic definition of religious freedom justifies its acceptance of disestablishment: disestablishment makes sense only if it allows for a strong and free church that can exercise moral stewardship. It requires, to be sure, a state that has no official religion; but also a state that is willing to accommodate religious beliefs – a state that does not favor other religions, and that accommodates religious beliefs and practices even when they are in tension with constitutional values. Furthermore, it requires the state to understand religion not just as individual matters of conscience, but also as an organized practice: in this understanding of religious freedom with the state, the church emphasizes its institutional dimension and hence its own freedom. These are the premises of disestablishment as “friendly cooperation:” a constitutional regime that protects as religious freedom not the freedom of religious conscience of an individual, but rather the freedom of action of the church as an institution.30 The link between friendly cooperation as the dominant form of disestablishment and religious freedom requires further examination, for it reveals the paths taken by the globalization of constitutional law in dialogue with local legal traditions. The right to religious freedom is a foundational right in the United States, fiercely protected by both Democrats and Republicans, but reshaped by the latter to include a growing deference to religious beliefs and

Ibid. Pierluigi Chiassioni, Laicidad y libertad religiosa 51 (2013).

29 30

150  Constitutions and religion religious institutions.31 In 2014, for example, this expansion included the possibility of corporations to claim religious exemptions from laws of general applicability and the constitutionality of Christian prayer in public spaces beyond traditional legislative non-denominational prayer.32 The conservative trends in the United States are amenable to the Catholic Church’s own understanding of the right to religious freedom as the church’s right to be independent from the state. The history of this understanding is rooted in the Vatican’s traumatic experience of disentangling itself from the state’s patronage rights, attempting to maintain its wealth and influence at a distance from temporal powers that abused establishment.33 In reference to the Vatican’s sovereignty, religious freedom is much more than the right of individuals to have their own beliefs: it is the right of the church, as a sovereign entity, to be independent from the state, to represent a society that is distinct from civil society, with its own authorities and its own laws.34

5.

RELIGIOUS FREEDOM UNDER A REGIME OF FRIENDLY COOPERATION

By the late twentieth century, all countries in Latin America except Costa Rica had successfully disestablished Catholicism, but also abandoned most liberal ideals of laicidad and anticlericalism, and adopted instead a disestablishment model of friendly cooperation. Disestablishment not only brought separation between church and state, but also built on the hegemony of liberal ideas that located religion in the private sphere, imagined the state as neutral vis-à-vis religions, and were very protective of individual conscience. In many countries, these ideals coexisted with an acceptance of the role of the church in the private sphere – as in Simón Bolívar’s sense of religion as governing private life, especially the life of families and sexual and reproductive mores. Therefore, the forms of church-state separation in the region are not homogenous, and the specific power of the church depends on a fragile balance of power between different national actors. In sum, disestablishment does not reflect the kind of power the church might have in a given country; and in some countries disestablishment might coexist with Catholic

31 In 1992 the United States, like Latin American countries, adopted a law favoring religion: the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb a 2000bb. There is abundant literature on the conservative interpretation of religious freedom. See, for example, Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 University of Chicago Law Review 1109–53 (1990); Steven K. Green, The Second Disestablishment: Church and State and Nineteenth Century America (2010); Philip Hamburger, Separation of Church and State (2002); John Witte and Joel A. Nichols, Religion and the American Constitutional Experiment (2011). For a liberal analysis of this trend, see Andrew Koppelman, Defending American Religious Neutrality (2013); Erwin Chemerinsky, The Conservative Assault on the Constitution 101–34 (2010). 32 For the leading cases see Burwell v. Hobby Lobby Stores, Inc., No. 13-354, slip op. (U.S. June 30, 2014) and Town of Greece, N.Y. v. Galloway, No. 12-696, slip op. at i (U.S. May 5, 2014). 33 The Italian Constitution states in its Article 7: “The State and the Catholic Church are independent and sovereign, each within its own sphere. Their relations are regulated by the Lateran pacts. Amendments to such Pacts which are accepted by both parties shall not require the procedure of constitutional amendments.” 34 Arguably, this understanding of church-state separation as grounded on church sovereignty explains the hierarchy’s reluctance to turn priests over to civil authorities even when they have committed crimes such as the rape of children.

Religious freedom in Latin American constitutions  151 control of religious education in public schools, the types of healthcare services available, and the rules governing family life, sexuality and reproduction. This is a triumph of the mode of disestablishment advocated by the church, sometimes termed “friendly cooperation” – although it is also called “positive laicidad” by its defenders and “neo-confessionalism” by its critics.35 Friendly cooperation accepts that in principle, the state can be neutral toward different churches and religions, and not have an official religion. But it expects the state to have a generally positive view of the role of religion in society, and not be “Godless.” To this extent, the state cooperates with churches of different denominations, granting them privileges such as tax breaks and public funds for the provision of public services. Friendly cooperation as a mode of disestablishment also extends strong legal rights to all religious denominations. These rights include, for example, the rights to preach and proselytize, and to promote religious values in public life. They also include the right to freely own property, as well as the possibility to receive funds either through tax breaks or through specific budget destinations for the provision of certain services, particularly health and education. In the strongest version of friendly cooperation in formerly officially Catholic nations, the state has no official religion, but recognizes that Catholicism is the majority religion, and, without causing harm to other religious denominations, grants certain privileges to the Catholic Church. For instance, the Peruvian Constitution of 1978, in an article that was transposed in the 1992 Constitution, enshrined the recognition of the Catholic Church as “an important element of the historic cultural and moral formation of Peru,” and provided that the state therefore “offers cooperation” (Article 50 of the 1992 Constitution). In less robust forms of cooperation, the special relationship is found not in the Constitution, but rather in statutory laws or treaties with the Vatican. In Venezuela, until the Hugo Chavez administration (1999–2013) assumed power, the Catholic Church enjoyed special status and received funds for its religious works.36 In Argentina, Article 2 of the 1994 Constitution states that the federal government “sustains the apostolic and Roman Catholic religion.” This support has been interpreted as a financial commitment that does not impede disestablishment, but that does require the allocation of funds from the national budget to support of the Catholic clergy, including not only the support of the military chaplaincies, but also payments for seminarians and priests both practicing and retired. During the 1990s several Latin American countries adopted similar laws protecting religious freedom. Mexico adopted a Religious Freedom Law in 1992, as did Colombia in 1994 and Chile in 1999. Similar laws have followed – for example, in Brazil in 2009 and Peru in 2010.37 All these laws protected both individual and institutional religious freedoms, manifested a favorable stance toward religion and effectively protected the power of the Catholic Church. 35 This term is widely used by conservative legal authors who also attempt to rename both anticlericalism and laicidad under the derogative neologism laicismo, while reserving laicidad for friendly cooperation or positive laicidad. See, for a typical example from an Opus Dei university, Vicente Prieto, La laicidad positiva del Estado colombiano, 12 Pensamiento y Cultura 39–65 (2009). 36 Venezuela, Law approving the Agreement between the Republic of Venezuela and the Holy Apostolic See, Official Gazette of Republic No. 27478, June 30, 1964. 37 Colombia, Ley Estatutaria 133 of 1994; Mexico, Ley de Asociaciones Religiosas y Culto Publico 1992; Peru, Ley de Libertad religiosa, Ley 29635 of 2010; Chile, Ley de Libertad de Culto 19638 of 1999; Brazil, Ley General de Religiones 2009.

152  Constitutions and religion Even Latin American countries whose constitutions originated in leftist revolutions – such as those of Cuba, Nicaragua and Venezuela – or were promoted by leftist regimes – such as those of Ecuador and Bolivia – include an active tolerance of the church and sometimes even “show it favor.” Initially, the Cuban revolution was formally atheistic as well as communist; its 1976 Constitution included articles overtly hostile to religion, such as Article 62, which says faith cannot be opposed to revolution; and Article 54, reformed in 1992, which criminalized opposing the goals of the revolution alleging faith. Catholics were also excluded from the ruling Communist Party under 1991, and the Cuban Criminal Code still contains a crime of abuse of religion (Article 206). Today, however, the regime – while still keeping an active supervision of all religious activities – allows the presence and activity of the church.38 The Nicaraguan revolution of 1979, while leftist, did not have the anticlerical tendencies of the Cuban revolution, even though the national church supported the “contras,” or U.S.-backed paramilitary death squads that opposed the leftist government in place after the triumph of the revolution. Nicaragua’s revolutionary constitution, however, was not anticlerical. It included the phrase “the State has no official religion” – the text of disestablishment shared by several liberal constitutions across the region and in Nicaraguan Constitutions since the liberal reforms of 1893. The proximity between Nicaraguan governments and the church is such that the U.S. State Department reports Catholic bishops in alliance with protestant pastors blocked sexual education in public schools, despite the fact that the Nicaraguan Constitution insists (Articles 116 and 117) that education must emphasize scientific approaches to knowledge. In Venezuela, the Chávez revolution proclaimed a constitution for twenty-first century socialism; and in Ecuador, the Constitution appealed to traditional indigenous conceptions of the good life as including care of nature, and invoked the protection of the Earth Goddess (Pachamama); while the Bolivian Constitution claims to be the first “decolonial” constitution.39 However, the three countries also guaranteed robust church rights, and the U.S. State Department reports no breach of religious freedoms of the church and no hostility of the government to religion.40 This is not to say there are no remnants of anticlericalism or laicidad as models of disestablishment. For example, in Mexico, despite the 1992 reforms, the Constitution still prohibits the clergy from expressing political opinions and holding elected office (see Articles 24 and 130); and the regulatory decree for the 1991 Law of Religious Associations prohibits the church from having TV or radio shows or from owning any mass media, reflecting the heritage of anticlericalism. And Uruguayans remain strict in the exclusion of any religious presence from the public sphere, which includes eliminating any religious signs from public buildings and renaming religious holidays as secular holidays.41 But the dominant mode of disestablishment remains that of friendly cooperation, where the state has a positive attitude toward religion in general, with religious freedom defined State Department, Report on Religious Freedom around the World (2013). See, for example, Alejandro Medici, El nuevo constitucionalismo latinoamericano y el giro decolonial: Bolivia y Ecuador, 3 Revista Derecho y Ciencias Sociales 3–23 (2010); or César Augusto Baldi, From Modern Constitutionalism to New Latin American Decolonial Constitutionalism, 23 The CLR James Journal 307–22 (2017). This is a burgeoning field in Latin America, but with little traction elsewhere. 40 State Department, supra note 38. 41 For example, Holy Week is still a holiday, but it is called the Week of Tourism; the Immaculate Conception was renamed Beach Day. For Lynch, supra note 2, at 198, this renaming “helps explain Catholic distrust of liberalism in Latin America.” 38 39

Religious freedom in Latin American constitutions  153 as protecting and even promoting all expressions of faith, all religious associations and all faith-based religious activity. It can even include special privileges for the Catholic Church. In 2013, for example, the Peruvian Supreme Court dismissed a challenge against the law that declared the Señor de los Milagros (Lord of Miracles) religious image of Jesus Christ the patron saint of Peru. The challenger claimed this law violated his religious freedom as an evangelical Christian, as well as the principle of laicidad; but the court considered that the religious icon reflected Peruvian identity and Catholic tradition, and did not violate religious freedom. The court also cited the special cooperation the Peruvian state grants the Catholic Church in the Constitution.42 In Colombia, the Constitutional Court has adopted a more moderate form of friendly cooperation, navigating carefully the limits between church sovereignty and individual human rights. The Constitution does not overtly include disestablishment and does not mention religion, except for a general call for the protection of God in the preamble and the protection of religious freedom and the equality of all religions (Articles 18 and 19). The court has consistently interpreted Articles 18 and 19 to mean the state must not privilege the Catholic Church or creed, building on the idea that pluralism entails disestablishment and religious neutrality. It has, however, denied any hostility toward religion, supporting both the Concordat (C027 of 1993) and the 1994 Religious Liberty Law according to which the state favors religion (C088 of 1994).43 It has opposed the consecration of the country to the Sacred Heart (C350 of 1994), and allowed for religious laws described as being “culturally” Catholic rather than strictly religious (C152 of 2003; C766 of 2011 and C817 of 2011, on the ground that “religion has no particular value in itself, and the state must be neutral in regard religion, and allow its practice insofar as belief is part of the sphere of individual freedom”).44 The court has also defended religious freedom as essential to democracy (C766 de 2010); and advocated equal treatment of all religions and churches,45 while refusing to use human rights to force the churches to treat people equally.46 In some cases, however, the court has intervened to protect human dignity: in 2002 (T1083) the court reviewed the case of a disabled boy denied communion because the priest claimed the boy was more like an animal than human; although the court said it could not force the priest to give the boy communion, it demanded a public apology for violating not the boy’s religious rights, but his human dignity. In 2013 (T658) the court also ordered a religious community to receive an elderly nun who had been part of the community for 42 years, but eventually left due to conflict with the superior. She had nowhere to live and no social security pension, and wanted to be reintegrated into the religious community. The court

Peru, Tribunal Constitucional, March 19, 2013, EXP. N.° 03372-2011-PA/TC. But this privilege was initially interpreted generously by equating Christian morality with culture. See C-224/94, which declares constitutional a provision of the Civil Code that refers to Christian culture. 44 Article 2: “el Estado no es ateo, agnóstico, o indiferente ante los sentimientos religiosos de los colombianos.” 45 For example, in 1997 it said all churches should be equal for tax purposes (T352 de 1997); in 2009 (T397) that a worker couldn’t be fired for not working on Saturdays for religious regions; in 2010 (T492) that students could not be forced to present tests on Sundays; and in 2011 (T832) that a school could not ask women to wear pants if that was against the beliefs of the Pentecostal Church. 46 It has therefore refused to protect children denied baptism because their parents are not married by the Catholic rites (T200 de 1995), inmates denied religious marriage by the church ban on marriage ceremonies in prison (T946 de 1999), and couples denied religious annulment of their catholic marriages (T998 of 2002). 42 43

154  Constitutions and religion decided that the community had to receive her, to protect her life and dignity; or alternatively, had to support her until her death.47 Church power, however, frequently lies outside the purview of constitutional control. Even today, in the early decades of the twenty-first century, in many Latin American countries, the Catholic Church continues to influence the daily functioning of the state, supported by conservative social and political actors and denounced by their liberal and leftist counterparts. For example, church representatives can have specific institutional powers, such as controlling a country’s compulsory religious education; reviewing and approving school books; being the sole military chaplaincy; providing public health and educational services; and participating in the planning of healthcare. The church also receives funding from the state – not only in the form of numerous and generous tax exemptions, but also as subsidies for its health and education services, or for its many charities, as well as in some countries in the form of specific stipends for priests. Furthermore, the Catholic Church also has an important political presence through its bishops’ widely publicized comments on laws and on politics. They sometimes openly support and oppose political candidates and specific policies, both in official press releases and during religious services, flexing the church’s political muscle.48 This power has historically benefited conservative leaders and parties, and advocated for church interests, especially in religious education. Rarely are these privileges challenged as violations of the constitutional regime of freedom of religion for other faiths, because – as explained throughout this chapter – freedom of religion has become a right that protects a free and independent Catholic Church, and a system in which the state favors the majority religion. In an unexpected turn, the Catholic Church’s advocacy for a regime that both disestablished Catholicism and showed religion favor has benefited the dramatic growth of other Christian denominations. A 2014 Pew Research Center Survey shows, for example, that in the region, while only one in ten Latin Americans was raised Protestant, one in five is Protestant today. Affiliation to the Catholic Church has dropped from 92 percent in 1970 to 69 percent in 2014; while affiliation to Protestant churches has grown from 4 percent in 1970 to 19 percent in 2014, with the difference ascribed to a growth in unaffiliated Latin Americans. The numbers vary within the region, with the more notable decline in Catholic identity in favor of Protestantism in Brazil, down to 61 percent Catholic; and the smallest in Paraguay, still 90 percent Catholic. Some countries are no longer majority Catholic: in El Salvador, Nicaragua, Honduras, Guatemala and Uruguay, only 50 percent or less of the population are affiliated with the Catholic Church.49 At the same time, and sometime in alliance with Protestant churches, disestablishment has given the Catholic Church the freedom to flex its political muscle and find political allies for the causes it defends, especially restrictions to sexual and reproductive rights.

Leonardo Garcia Jaramillo, Laicidad y Justicia Constitucional. El caso colombiano, in Para 413–68 (Pedro Salazar Ugarte and Pauline Capdevielle eds., 2013). 48 See Julieta Lemaitre, The Problem of the Plaza: Religious Freedom, Disestablishment and the Catholic Church in Latin America’s Public Square, in Laicidad and Religious Diversity in Latin America 21–41 (Juan Carlos Vaggione and José Manuel Morán Faúndez eds., 2017). 49 www​.pewforum​.org/​2014/​11/​13/​religion​-in​-latin​-america/​, last accessed December 20, 2019. 47

entender y pensar la laicidad

Religious freedom in Latin American constitutions  155

6. CONCLUSION In 2018 Argentina almost made abortion legal, a move that had strong popular support and that for the first time reached a Senate vote. The threat made the church flex its political muscle. Pope Francis, an Argentine, came out to say abortion was the murder of innocent children, comparable to the Holocaust; bishops and priests spoke against the law from the pulpit; public figures, including the president, spoke against abortion as Catholics; and the church actively lobbied against the law in Congress. Protestants did their part, filling the streets with counter-protesters (legalization was speared by a wide-ranging feminist social movement).50 Catholics and Protestants share the view that legal abortion is part of an enemy social movement, fueled by feminism, defined as “gender ideology.” As a reaction against the no vote in the Senate, the pro-abortion movement has turned to a campaign calling for a stricter disestablishment in the country; people protesting the Senate vote chanted “Church and state are separate.”51 They also started a movement for apostasy among its followers – that is, the public renunciation of Catholic affiliation; and denounced the funds the state destines to the support of the Catholic Church in a supposedly secular country. This is one of many examples of the shape of contemporary disestablishment and religious freedom in the region. The Catholic Church’s conservative activism has revitalized the historical proximity between the Catholic Church and conservative parties and factions in Latin America, and their actions are often either supported by politicians or openly embraced as a beacon and an inspiration. Church activism against sexual and reproductive rights has also cemented a conservative alliance with fundamental evangelical congregations, as well as fostered the existence of a transnational conservative social movement of conservative Catholic lawyers (Lemaitre 2010, 2013).52 These alliances provide a bulwark of resistance against Pope Francis’s lukewarm efforts to reduce the church’s militant activism against sexual and reproductive rights, particularly against same-sex marriage and the equality of lesbian, gay, bisexual, trans and intersex (LGBTI) people.53 The church’s activism against sexual and reproductive rights has also led to a revival of disestablishment as a liberal-progressive cause in Latin America.54 Feminist and LGBTI activ-

50 See, for example, Daniel Pardo, Aborto en Argentina, BBC (August 9, 2018), www​.bbc​.com/​ mundo/​noticias​-america​-latina​-45124523, last accessed December 20, 2019. 51 “Iglesia y Estado, asuntos separados.” See, for example, Mariana Iglesias, Separación Iglesia-Estado, El Clarín (August 17, 2018), www​.clarin​.com/​sociedad/​separacion​-iglesia​-multiplican​ -consultas​-tramite​-apostasia​_0​_HyDA​_hE8X​.html, last accessed December 20, 2019. 52 Julieta Lemaitre, By Reason Alone: Catholicism, Constitutions and Sex in the Americas, 10 International Journal of Constitutional Law 493–511 (2010); Julieta Lemaitre, Laicidad y Resistencia (2013). 53 But not support for gay rights: his opening remarks in the Synod for the Family, October 4, 2015, were broadcast around the world as he insisted the church opposed gay marriage. See Pope Opens Church; Welcoming Church But No Gay Marriage, Reuters (October 4, 2015), www​.reuters​.com/​article/​us​-pope​ -synod​-idUSKCN0RY0BT20151004​?feedType​=​RSS​&​feedName​=​topNews​#29zu6b9wyEfA2J1z​.97, last accessed December 20, 2019. 54 See Alba Ruibal, Movement and Counter-movement: A History of Abortion Law Reform and the Backlash in Colombia 2006–2014, 22(44) Reproductive Health Matters 42–51 (2014); El activismo religioso conservador en Latinoamerica (Juan Marco Vaggione ed., 2009); Ana Amuchastegui, Guadalupe Cruz Evelyn Aldez and Maria Consuelo Mejia, Politics, Religion and Gender Equality in Contemporary Mexico, 31 Third World Quarterly 989–1005 (2010).

156  Constitutions and religion ists have called for disestablishment as state neutrality toward religion, appealing sometimes to historic hostility toward the Catholic Church to reject any state endorsement of the official Catholic position. Feminist and LGBTI activists have found allies in transnational activist networks devoted to women’s rights, as well as in liberal and left political parties, liberal intellectuals, doctors and scientists in each country. There are numerous examples of this turn to calls for disestablishment – a disestablishment that would be closer to its nineteenth century liberal version of laicidad than to the “friendly cooperation” mode of disestablishment. It is present in the Argentinean apostasy campaign, as well as in the regional “Open your mouth against fundamentalisms” campaign against church activism in sexual and reproductive issues. It is also present in feminist campaigns in Colombia against the inspector general’s promotion of conservative Catholic values, which have emphasized church-state separation using the slogan “Free people in secular states, it’s my body, it’s my choice.”55 Yet another example is the 2012 alliance of feminists, sexual rights activists and liberals in Mexico to include in the phrase “Mexico is a secular republic” (república laica) in the Constitution, symbolically rallying anti-church sentiment still vigorous in that country. Any attempt to understand the meaning of religious freedom in Latin America, and its political meanings today, requires an understanding of the complex history of disestablishment, the triumph of a disestablishment and a religious freedom that protects the Catholic Church’s political power, and the way this arrangement symbolizes today’s conservative views on sexuality and reproduction.

In Spanish: Personas libres en estados laicos, es mi cuerpo y yo decido.

55

9. Constitutions and religion in Africa Charles Manga Fombad

1. INTRODUCTION The global resurgence of religion in what is referred to as the “post-secular” era is particularly evident in Africa, a continent described as one of “the most religious places in the world.”1 Religious freedom was one of the important rights that preoccupied constitutional designers when they revised African constitutions during the “third wave of democratisation” in the 1990s. Although religious freedom, like other fundamental rights, has long been regarded not as something that should be granted at the discretion of government, but as an inherent human right to be enjoyed by all, this was not always the case in Africa – particularly in the post-independence period. Prior to the 1990s, the persecution of religious minorities – especially of religious leaders and groups such as the Jehovah’s Witnesses which dared to express dissenting political opinions – was rampant under the military and one-party dictatorships then in power.2 Thanks to the era of democratic revival in the 1990s, almost all of Africa’s new or revised constitutions contain a bill of rights in which freedom of religion features prominently in one form or another. This chapter examines, from a comparative perspective, the manner and extent to which religious rights are now recognized, protected and entrenched in modern African constitutions. As with many other fundamental human rights, these rights are not absolute. An examination of the constitutions of all 55 African countries undertaken for the purposes of this study reveals considerable variation in the way they recognize and protect religious rights. The impact and effectiveness of the relevant provisions depend partly on the extent to which limitations and restrictions are placed on the exercise of these rights. They depend, too, on the mode of implementation – in particular, on whether this is accomplished through ordinary legislation and other regulations. However, the scope of their constitutional status is still of critical importance in this regard,3 given the unlikelihood that these rights

1 See Christian Green, From Social Hostility to Social Media: Religious Pluralism, Human Rights and Democratic Reform in Africa, 14 African Human Rights Law Journal 94 (2014). 2 In several African countries – such as Benin, Central African Republic, Ethiopia, Malawi and the Democratic Republic of the Congo – Jehovah’s Witnesses were outlawed; in others, such as Mozambique and Zambia, they were regularly harassed and imprisoned, and had their churches (known as kingdom halls) burned down, because they refused to recognize the government, participate in national events such as voting in elections, sing the national anthem or salute the flag. Other persecuted religions included Mormons and Christian or Muslim minorities in either predominantly Muslim or Christian countries. See further Daniel Nsereko, Religion, the State and the Law in Africa, 28(2) Journal of Church and State 269–87 (1986); and Rosalind Hackett, Regulating Religious Freedom in Africa, 25 Emory International Law Review 853–79 (2011). 3 See Johan D van der Vyver, Religious Freedom in African Constitutions, in Proselytization and Communal Self-determination 109–43 (Abdullahi An-Na‘im ed., 1999).

157

158  Constitutions and religion would be effectively recognized and protected in ordinary legislation were it not for the existence of a firm and clear constitutional commitment to them. To put recent developments in context, Section 2 provides a brief historical background of the diverse influences on the different approaches to the constitutionalization of religious rights in Africa today. This is followed in Section 3 by an examination of the scope of the constitutional entrenchment of religious rights. Section 4 in turn looks at the different forms of limitations and restrictions placed on their effective exercise. Although the focus of this analysis is on the scope of constitutional protection of religious rights, Section 5 nevertheless highlights some issues relating to current practices and experiences and considers the prospects for the future. The chapter’s concluding remarks indicate that, as with most of the fundamental rights formally entrenched in modern African constitutions, the full enjoyment of religious rights faces numerous practical challenges.

2.

HISTORICAL BACKGROUND AND INFLUENCES ON THE CONSTITUTIONALIZATION OF RELIGIOUS RIGHTS

An analysis of the diverse approaches to the constitutionalization of religious freedom in modern African constitutions must be understood against the background of the continent’s complex colonial history and heritage and its rapidly changing religious landscape. While recent studies suggest that the number of adherents of the two dominant faiths, Christianity and Islam, are almost equally balanced, this has not always been so. It is estimated that in 1900 both Christianity and Islam were relatively minor religions on the continent.4 The vast majority of Africans at the time practiced traditional African religions, while the combined number of Christians and Muslims made up less than one-quarter of the population. Although most Africans today are adherents of one or the other dominant religion, a large number of them continue to subscribe to traditional African religious doctrines and practices, as part of which they believe in, for instance, witchcraft, evil spirits, sacrifices to ancestors, traditional religious healers and reincarnation. One reason for the phenomenon is that from their early days, certain faiths – such as the Catholic Church, which comprises the largest Christian denomination in Africa – adopted a policy of enculturation in which their liturgies, and even some of their sacraments, were adapted to incorporate traditional African rites.5 Among Africa’s other religious faiths are Judaism, with South Africa having an influential Jewish community and Ethiopia a smaller such community – one that has been in existence since ancient times. In African countries with a significant Indian community, Hinduism and Buddhism are also practiced. While the advent of Islam in Africa came with the Arab conquest of Egypt in the seventh century, the spread of this religion throughout northern Africa, and later to parts of sub-Saharan Africa in the twentieth century, was due to Saharan trade. Except for the period when Europeans traded for slaves and gold, the latter remained exclusively a Muslim trade

4 See Pew Research Center, Tolerance and Tension: Islam and Christianity in Sub-Saharan Africa, www​.pewforum​.org/​2010/​04/​15/​executive​-summary​-islam​-and​-christianity​-in​-sub​-saharan​-africa/​, last accessed May 6, 2020. 5 See Johan D van der Vyver and Christian Green, Law, Religion and Human Rights in Africa: Introduction, 8(2) African Human Rights Law Journal 337–56 (2008).

Constitutions and religion in Africa  159 until the seventeenth century; whereas it was Christians who controlled the maritime trade in the Atlantic and Indian Oceans. As for Christianity, colonialism facilitated the introduction and dissemination of a variety of Christian religions in sub-Saharan Africa. Foreign missionaries who arrived in this era altered the religious beliefs of Africans through the medium of education, and these beliefs have persisted due to having been passed on from parents to children. Similarly, the differences in approach to the present constitutionalization of religious rights in modern African constitutions can be traced to the colonial period and, more specifically, to the varying ways in which different colonial powers manipulated the status of religious groups to serve their interests. On the whole, the patterns of such manipulation reflected the colonizing country’s religious inclinations. The two most active colonial powers, Britain and France, as well as others, such as Portugal and Spain, adopted the principle of secularity, which called for a separation of church and state. This became a core principle in the independence constitutions and has remained the case into the present day. Nevertheless, there were significant differences in how this principle was articulated and applied. The French approach to secularism – usually referred to as “laïcité” – was transplanted in francophone Africa. The concept of laïcité can be understood as entailing the neutrality of the state toward religious beliefs and the separation of the religious and public spheres. In terms of this notion, the state and government are meant neither to take a position on any religion or religious belief, nor to permit any religion to interfere in the functioning of the government. This also entails that – in theory at least – there can be no interference by the government in the religious life of its citizens, or in the forms of religion to which they adhere. Laïcité therefore excludes the idea of a state religion and instead requires a complete division between a citizen’s private life and religious views and beliefs on the one hand, and his or her life in the public sphere on the other. It also discouraged public expression of religious beliefs. This approach was adopted in both francophone6 and lusophone7 Africa. By contrast, the British conceptualization of secularism – one which was likewise reflected in post-independence constitutions – was much vaguer on the question of separating religion and politics, given that this principle was not part of the British tradition. Unlike in France, which has no state religion, in England the Church of England has long been recognized as the state or established church, albeit largely at a symbolic rather than practical level. Nevertheless, the understanding of secularism that was adopted in anglophone Africa was focused more on protecting religious freedom than anything else. Although most of their early constitutions had bills of rights that provided for freedom of conscience and religion, none of them contained any provisions on the principle of separation of church and state. In practice, anglophone African constitutions did not try to create any wall of separation between the state and religion. Before 1990, the constitutions of certain countries with a Muslim majority were revised to describe the country as an Islamic state and proclaim Islam as the religion of the state or the

6 For example, secularism is written into all of the constitutions Senegal has adopted since 1960. Article 19 of its 1983 Constitution states that “religious institutions and communities shall have a right to develop without hindrance. They shall not be subject to direct supervision by the state. They shall regulate and administer their affairs autonomously.” 7 For example, Article 19 of Mozambique’s 1978 Constitution provides for “a secular state in which there is absolute separation between the state and religious institutions.” The principle is also expressed in a similar manner in Article 7 of the Angolan Constitution of 1981.

160  Constitutions and religion people.8 Nevertheless, many other Muslim-majority states, such as Mali and Senegal, retained the principle of secularism so as to enable the Muslim majority and Christian minority to practice their religions freely. Although no African constitution specifically provided for the subordination of the church to the state, there were some instances – as Daniel Nsereko points out – where revolutionary states adopted practices that seemed in effect to impose such a subordination of church to state.9 As noted, adherence to African traditional beliefs has undergone a dramatic decline. It has been argued convincingly by Makau Mutua that, under the pretext of the principle of secularism and supposed neutrality, the African state relentlessly engaged in a campaign of marginalizing at best, or eradicating at worst, African religions at the urging of, and with the collusion of and for the benefit of, both Islam and Christianity.10 In the case of the new generation of “made-in-Africa” constitutions, has anything changed? In other words, what is the status of religious freedom under the new generation of African constitutions?

3.

THE SCOPE OF RECOGNITION AND PROTECTION OF RELIGIOUS RIGHTS

As pointed out earlier, there is much variation in the way contemporary African constitutions have entrenched religious rights. Nevertheless, nearly all of them have general religious rights provisions, which are then reinforced by a prohibition of discrimination on grounds that usually include religion and other beliefs. These two aspects of the constitutions are examined below. 3.1

General Religious Rights Provisions

The nature and scope of the recognition and protection of religious rights in African constitutions have been influenced by a number of international and regional instruments, among them the Universal Declaration of Human Rights (UDHR);11 the International Covenant on Civil and Political Rights (ICCPR);12 the Declaration of the Elimination of Intolerance and Discrimination Based on Religion or Belief;13 the African Charter on Human and Peoples’ Rights;14 and more recently, the African Charter on Democracy, Elections and Governance.15 Two points are worth noting about the general impact of these instruments on the constitutional protection of religious freedoms. First, the potential impact of the religious rights recognized by these instruments at the national level usually depends on their effective

8 See, for example, Article 2 of the 1974 Libyan Constitution, Article 5 of the 1978 Constitution of Mauritania, and Article 3(1) of the 1979 Constitution of Somalia. 9 In Nsereko, supra note 2, at 280–86. 10 Makau Mutua, Returning to my Roots: African ‘Religions’ and the State, in An-Na‘im (ed.), supra note 3, at 169–90. 11 See UN General Assembly Resolution 217A of December 10, 1948 (Article 3). 12 See UN General Assembly Resolution 2200 of December 16, 1966 (Article 21). 13 See UN General Assembly Resolution 55 of January 18, 1982 (Article 26). 14 Adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986 (Articles 2 and 8). 15 Adoption on January 30, 2007 and entered into force on February 15, 2012 (Article 8).

Constitutions and religion in Africa  161 domestication. In this regard, while most anglophone African countries are dualist and their application depends on domestication,16 francophone and lusophone African countries are monist in their approach. Second, the bills of rights in a few African constitutions expressly provide that, in interpreting and applying their provisions, the courts should refer to international law,17 which entails that in these African countries the minimum standards as set out in the international human rights instruments are applicable. Be that as it may, the general provisions recognizing religious rights can be grouped into three: those providing for a secular state; those recognizing a state religion; and those which, in addition to one or both of these dispensations, recognize traditional African religions. 3.1.1 Religious rights in the context of a secular state An overwhelming majority of African constitutions declare the state to be secular and thus do not prescribe an official or preferred religion.18 This is manifest in at least three ways. First are those constitutions which simply declare that the state and religion are separate, and that there shall be no state religion.19 A second common formulation is to declare expressly that the state is secular.20 A third approach, found in most anglophone constitutions, is to provide an elaborate provision recognizing and protecting religious freedom in terms that are clearly indicative of a secular approach.21 Whatever the formulation used, constitutional entrenchment of the principle of secularity is true even in countries with a dominant Christian or Muslim majority. For example, there are secular countries with dominant Christian majorities, such as Angola (95 percent), the Democratic Republic of the Congo (DR Congo) (95 percent), Rwanda (93 percent), Namibia (90 percent) and the Republic of Congo (85 percent). Similarly, there are secular countries with dominant Muslim majorities, including Mali (95 percent), Senegal (94 percent) and the Gambia (90 percent).

16 An exception to this pattern is Kenya, where Article 2(5) of the 2010 Constitution states: “The general rules of international law shall form part of the law of Kenya.” However, this appears to be contradicted by Article 21(4), which provides that “the State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.” 17 Apart from Article 2(5) of the Kenyan Constitution, referred to in the previous footnote, other examples include Articles 13 and 26 of the Angolan Constitution of 2010 (albeit that these two articles are, as is the case with the Kenyan provisions, potentially contradictory); Section 39(1)(b) of the South African 1996 Constitution; and Section 46(1)(c) of the 2013 Zimbabwean Constitution. 18 See Vivek Chambath, List of Secular, Non-secular and Ambiguous States, https://​myblogworldisee​ .wordpress​.com/​2016/​01/​10/​list​-of​-secular​-non​-secular​-and​-ambiguous​-countries/​, last accessed May 6, 2020. 19 See, for example, Articles 11(1) and (2) of the Ethiopian Constitution of 1995; Article 8 of the Kenyan Constitution of 2010; Section 10 of the Nigerian Constitution of 1999; and Article 7 of the Ugandan Constitution of 1995. 20 See Article 10 of the Angolan Constitution of 2010; Article 1 of the Burundian Constitution of 2005; the preamble to the Cameroon Constitution of 1996; Article 1 of the DR Congo Constitution of 2006; Article 2 of the Gabonese Constitution of 1991; and Articles 1 and 2 of the Madagascar Constitution of 2010. 21 See Section 11 of the Botswana 1966 Constitution; Section 17 of the Gambian Constitution of 2001; Article 21(1)(c) of the Ghanaian Constitution of 1992; Article 14 of the Liberian Constitution of 1986; Article 21 of the Namibian Constitution of 1990; and Section 15 of the South African Constitution of 1996. For an example of this approach in francophone Africa, see Article 23 of the Benin Constitution of 1991.

162  Constitutions and religion The concept of secularism is amenable to diverse interpretation. It is thus not surprising that the exact scope of secularism expressed in African constitutions differs from one country to another. This variation is unavoidable, given that in each of these countries either Christianity or Islam is the dominant religion. What on the face of it may seem balanced and neutral may not seem so to a minority. The challenge of ensuring strictly secular interests was noted long ago by the famous American jurist Chief Justice Warren Burger in Wisconsin v. Yoder, when he said: “A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion.”22 Owing to the rise of Islamic fundamentalism in the last two decades, religious secularism has come under attack in many African countries. This is the case not only in countries with small Muslim majorities, such as Chad (with a 58 percent Muslim population), but also in those with large Muslim majorities, such as Niger (with a 98 percent Muslim majority). In both of these countries, the governments have refused to promulgate the amendments to the family code for fear of antagonizing Muslims. In Senegal, a consortium of Islamic associations has been advocating for the repeal of the 1972 Family Code and its replacement with one that reflects Islamic traditions as well as the abolition of secularism in the constitution as a way of recognizing the religious identity of the majority of Senegalese citizens. In Mali (which has a 95 percent Muslim majority), similar tensions were raised when Muslim associations forced the President in 2009 to withhold assent to a bill introducing a new family code. The associations eventually forced Parliament to adopt a new, highly retrogressive code in 2011 that perpetuates discriminatory practices against women. As we shall see, many African constitutions impose restrictions on freedom of worship to such an extent that the entire notion of liberal secularism is contradicted. Most of these restrictions come into effect where the constitution provides for a state or preferred religion. 3.1.2 Religious freedom in the context of state or preferred religion Islam is the most common state or official religion in Africa. Most African countries that recognize Islam as the state or official religion in their constitutions contain provisions which also recognize the right of freedom of worship.23 The only exception to this is Somalia, which in Article 2 of its 2012 Provisional Constitution not only states that “Islam is the religion of the state,” but goes further to declare that “no religion other than Islam can be propagated in the country.” While most of the Muslim-dominated African countries recognizing Islam as a state or official religion do not go this far,24 some of them indicate that only Muslims qualify to stand for election as president.25 The rare exception where Christianity is made a state religion in Africa is in the 2016 Zambian Constitution, where the preamble declares 406 U.S. 205 (1972). For example, Article 1 of the Libyan Constitution of 2011 states, inter alia, that, “Islam shall be its religion,” but then adds: “The state shall guarantee for non-Muslims the freedom to practice their religious rituals […].” 24 See, for example, Article 3 of Moroccan Constitution of 2011; the preamble to the Comoros Constitution of 2001; Article 2 of the Egyptian Constitution of 2014; and Article 1 of the Djibouti Constitution of 1992. 25 See, for example, Articles 2 and 87 of the Algerian Constitution of 2008; Articles 5 and 23 of the Mauritanian Constitution of 1991; Articles 1 and 74 of the Tunisian Constitution of 2014; and Article 88(a) of the Somalian Provisional Constitution of 2012. 22 23

Constitutions and religion in Africa  163 “the Republic a Christian nation while upholding a person’s right to freedom of conscience, belief or religion.” Most studies show that Christianity is the religion countries have adopted as a preferred or favored religion. Although the Pew Research Center studies for 2017 suggest that there are five countries in Africa that have religion as a preferred or favored religion,26 this is explicitly spelled out in the constitution of only one of the countries. A close examination of the constitutions of these five countries shows that only Sudan, in its Interim Constitution of 2005 and before the secession of South Sudan, indicates, in Article 5, a preferred or favored religion. This cautious language must have been designed to accommodate South Sudan. This, however, did not prevent South Sudan from eventually seceding. Nevertheless, irrespective of what the constitutions say or do not say, if one looks at a preferred or favored religion in terms of the legal, financial or other special benefits that the government provides to some religious groups, then the practical reality is that most African countries tend to favor one or the other of the dominant religions on the continent. It is, however, the place reserved today for African traditional religions that raises numerous questions. 3.1.3 Religious freedom and traditional African religions It has been suggested – and arguably rightly so – that the situation regarding traditional African religions brings additional ambiguity to the state of protection of religions rights under modern African constitutions.27 As pointed out earlier, the vast majority of Africans actively practice Christianity or Islam as well as their traditional African religion. Recent studies have shown, though, that in spite of this, relatively few people today identify themselves primarily as followers of traditional African religions.28 The official status of traditional African religions in modern constitutions is, while puzzling, not surprising. The systematic undermining of traditional African culture, religious practices and customs that was initially promoted by Christian and Islamic missionaries prior to and during the colonial period was reinforced by colonial administrators on grounds such as public morality, natural justice and incompatibility with colonial laws. This discrimination was perpetuated by post-colonial governments. The eventual recognition specifically of African traditional religions, as opposed to African customary law usages and practices, as will shortly be seen, is fairly recent and ambiguous. For a start, some indication of the limited recognition given specifically to African traditional religions and practices can be seen in various continental human rights instruments. The first of these is the African Charter on Human and Peoples’ Rights 1981. It contains an indirect allusion to the issue of traditional African religions, inasmuch as its preamble refers to the virtues of the “historical tradition and the values of African civilization which should inspire and characterise their reflection on the concept of human and peoples’ rights.” The other significant provision in this regard is Article 17(3), which imposes on the state a duty to

26 The countries Angola, Eritrea, Guinea, Sudan and Togo. See Pew Research Center, Many Countries Favour Specific Religions, Officially or Unofficially, www​.pewforum​.org/​2017/​10/​03/​many​-countries​ -favor​-specific​-religions​-officially​-or​-unofficially/​pf​_10​-04​-17​_statereligions​-03/​, last accessed May 6, 2020. 27 See Hackett, supra note 2, at 870. 28 See further, Pew Research Center, supra note 4.

164  Constitutions and religion promote and protect the “morals and traditional values recognized by the community.” The only other instrument that refers to traditional religions, albeit obliquely, is the African Charter on Democracy, Elections and Governance of 2007, which in Article 8(3) requires state parties to “respect ethnic, cultural and religious diversity” in the context of strengthening democracy and citizens’ participation. It is thus clear from this that neither the African Union (AU) nor its Regional Economic Communities (RECs) have actively promoted the revival or sustenance of the gradually disappearing remnants of African traditional religions. In many respects, the attitude of the AU and its RECs is mirrored by what is happening at the national level. An analysis of modern African constitutions shows there are very few explicit provisions recognizing and protecting African traditional religions. Although it can be said that, save for a few exceptions, the right to practice African traditional religions is implicitly recognized in all African constitutions, few of them mention this specifically and explicitly in their provisions. The one exception to this is Mauritania, where almost the entire population practices the Islamic faith: the country not only proclaims Islam as the state religion, but goes further to guarantee equality before the law to all its citizens without distinction – yet, significantly, without listing religion as one of the grounds for discrimination prohibited under Article 1 of its Constitution. Several African constitutions have gone beyond the general freedom-of-religion provision by giving recognition, and in some cases protection, specifically to African traditional religions. For example, Article 10 of the 1990 Benin Constitution, in stating that “every person has a right to culture,” and adds that the state has the duty to safeguard and promote the national values of civilizations as well as the spiritual and cultural traditions of the people.29 Similar recognition may be inferred from the broad wording of some constitutional provisions dealing with issues of African customary law practices and usage.30 Given the long history of exclusion and discrimination to which African traditional religions have been subjected, not enough appears to have been done in this so-called age of the “African renaissance” to revive and protect them. This is particularly so in the light of the many vaguely worded restrictions which, while impinging generally on religious freedom, have usually had the most negative impact on African traditional religions. 3.2

Protection of Religious Freedom Through Non-Discrimination and Equality Clauses

As noted earlier, the history of the regulation of religion in Africa is replete, particularly from the immediate independence period to the 1990s, with accounts of frequently brutal persecution of religious groups. Hence, the mere constitutional entrenchment of religious freedom is not enough to guarantee full enjoyment of this right. This protection is necessary all the same, however – not only to create a basis for ensuring that the right is not infringed, but to take cognizance of the delicate, often tense, relationships between the continent’s two major

29 Similar references are found in Article 7 of the 1991 Constitution of Burkina Faso; Article 51 of the 2003 Constitution of Rwanda; and Article 24 of the 2016 Constitution of Senegal. 30 See, for example, Article 156 of the 1996 Chadian Constitution; Article 22 of the 2001 Congolese Republic Constitution; Article 19 of the 1990 Namibian Constitution; Sections 15, 16 and 31 of the South African Constitution of 1996; Section 33 of the 2011 South Sudan Interim Constitution of 2005; Article 47 of the 2005 Interim Constitution of Sudan; and Article 47 of the 1995 Constitution of Uganda.

Constitutions and religion in Africa  165 religions; religions which, with the exception of Mauritania (almost 100 percent Muslim), are either a majority or minority in every African country. The usual means of protecting religious freedom is to entrench a provision that prohibits discriminatory practices that favor or disadvantage individuals on several grounds, including religion.31 However, a majority of African constitutions contain provisions which guarantee equality of treatment and equal protection under the law for every individual regardless of their religious belief.32 Some constitutions use both expressions, namely, “equality and freedom from discrimination.”33 In five constitutions (Algeria, Mauritania, Seychelles, Tunisia and Zambia), there is no specific provision either guaranteeing equality of treatment of all citizens regardless of their religious beliefs or protecting citizens from any discrimination based on their religious beliefs. All these countries, except Zambia, have Muslim majorities. The common link between them is that all their constitutions provide for a state religion – Islam – again, with the exception of Zambia, which is the only African country to have declared Christianity the state religion. In the absence of constitutional provisions explicitly or implicitly entrenching the right to equality of treatment of all citizens or non-discrimination on the grounds of religious belief, it becomes difficult to see how the right to freedom of religion could become a practical reality in these countries. This is particularly so in the light of the numerous legitimate and illegitimate restrictions and limitations placed on the exercise of religious freedoms.

4.

LIMITATIONS AND RESTRICTIONS ON FREEDOM OF RELIGION

As with most of the fundamental human rights, religious freedom is subject to limitations and restrictions. An overview of the situation in Africa shows that, just as there are variations in the way the different constitutions recognize and protect religious rights, so too are there variations in the way in which they limit and restrict these rights. However, the whole question of when and how governments may legitimately limit or restrict the exercise of religious rights is extremely complicated. This is so because in many of the constitutions that purport to recognize and protect religious freedom, either the exact scope of this freedom is ill-defined or the exercise of this freedom is subject to vague or broadly worded limitation provisions or to a myriad of restrictions.

31 See, for example, Section 15(3) of the 1966 Botswana Constitution; Article 1 of the 1991 Burkina Faso Constitution; Article 13 of the 2006 DR Congo Constitution; Article 14 of the 2016 Côte d’Ivoire Constitution; Article 13 of the 1991 Gabonese Constitution; Section 15(2) of the 1999 Nigerian Constitution; and Article 11 of the 2003 Rwandan Constitution. 32 See, for example, Article 23 of the 2010 Angolan Constitution; Article 26 of the Benin Constitution of 1990; Article 22 of the 2005 Burundian Constitution; Article 14 of the Chadian Constitution of 1996; the preamble to the 2001 Comoros Island Constitution; Article 8 of the 2001 Congo Republic Constitution; Article 1 of the 1992 Djibouti Constitution; Article 53 of the 2014 Egyptian Constitution; Article 14 of the 1997 Eritrean Constitution; Article 25 of the 1995 Ethiopian Constitution; Section 9 of the 1996 South African Constitution; and Section 20 of the 2005 Swaziland Constitution. 33 See, for example, Article 27 of the 2010 Kenyan Constitution; Article 10 of the 1990 Namibian Constitution; Article 21 of the 1995 Ugandan Constitution; and Section 56 of the 2013 Zimbabwean Constitution.

166  Constitutions and religion At one extreme are the constitutions that either do not state the scope of religious freedoms covered or simply leave this to be determined by subsequent laws. Such subsequent laws often impose numerous arbitrary restrictions and limitations with no constitutional mechanism to restrain the scope of such action. The best example of this is the Mauritanian Constitution of 1991 which, after declaring that the country is an “Islamic Republic” and that Islam is “the religion of the people and of the state,” is completely silent on how this is to be regulated. It is clear from this that no other religious faith is recognized. By contrast, the preamble to the 1996 Constitution of Cameroon declares the country a secular state and limits itself to stating that “freedom of religion and worship shall be guaranteed.” All the preamble seems to imply is that this is to be regulated by law “subject to respect for public policy.” A similar approach is adopted in the Senegalese Constitution of 2016, which provides in Article 8 that freedom of religion is to be “exercised within the conditions provided for by law.” The exact scope of this freedom under the Cameroonian and Senegalese Constitutions is uncertain. However, the legal uncertainty is compounded in the case of the latter because, due to the absence of judicial review under the constitution, there is no framework for checking against the enactment of laws that violate the supposed secular nature of the state or arbitrarily constrain the enjoyment of religious freedom. A majority of African constitutions contain vaguely worded limitation provisions. These are common in the constitutions of countries that have either Muslim or Christian majorities. Such constitutions allow for laws restricting religious freedom, provided this is “reasonably required in the interest of defence, public safety, public order, public morality or public health” or “for purposes of protecting the rights and freedoms of other persons.”34 The problem is that these inherently obscure concepts can be invoked, as they have been in the past, as a pretext for constraining the exercise of religious freedom.35 However, a few constitutions have more liberal general limitation provisions that provide some safeguards on any restrictions which the legislature may introduce. A prime instance of this is the general limitation clause in Section 36(1) of the 1996 South African Constitution, which allows limitations: to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including – the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose.36

34 See, for example, Section 11(5) of the 1966 Botswana Constitution; Article 7 of the 1991 Burkina Faso Constitution; Article 19 of the 2016 Côte d’Ivoire Constitution; Article 25(5) of the 1995 Ethiopian Constitution; Article 14 of the Guinean Constitution; Section 13(5) of the 1993 Lesotho Constitution; Section 5(b) of the Liberian Constitution of 1986; Section 14(2) of the 1968 Mauritius Constitution; Article 3 of the 1993 Seychelles Constitution; Article 16(1) of the 2005 Interim Constitution of Sudan; and Section 23(4) of the Swaziland Constitution. 35 See the examples discussed in Nsereko, supra note 2, at 269–87, and Hackett, supra note 2, at 853–79. 36 A similar provision appears in Article 24 of the 2010 Kenyan Constitution and Section 86 of the 2013 Zimbabwean Constitution.

Constitutions and religion in Africa  167 This provision introduced the proportionality test in the context of the limitation of rights and concepts such as “fairness,” “reasonableness,” “rationality,” and “public interest” in determining whether any restrictions on rights such as religious freedoms pass constitutional muster and should therefore be allowed. As an approach to take when it comes to the limitation of rights, this seems an exemplary route to follow in addressing some of the challenges of regulating religious freedoms in Africa.37 In addition to the general limitation provisions, most African constitutions impose a welter of other restrictions on the exercise of religious freedoms. A few examples will suffice to illustrate the point. There are, for instance, some that prohibit amendment of the provision declaring Islam the religion of the state,38 or that prohibit any amendment of the provision affirming the secular nature of the state.39 Some constitutions prohibit the introduction of a state religion.40 The Gabonese Constitution of 1991 goes so far as to declare, in Article 7, that the infringement of the secular principle constitutes high treason. Probably because of the conflicts that have arisen so often from religious extremism in the last two decades, several constitutions contain provisions that explicitly prohibit the formation of political parties based on religious affiliation. These provisions are found in countries where either Christianity or Islam is the dominant religion.41 Although the formulation of these limitations and restrictions are of such a nature that they apply to all religious groups, various countries, in addition to this, have introduced specific restrictions that target African traditional religions.42 Finally, a serious restriction on religious freedom – in most cases one not explicitly stated in constitutions, but either contained only in ordinary legislation or operating de facto – concerns the limits imposed on proselytizing. The findings of the Pew Research Center suggest that 19 percent of the governments in sub-Saharan Africa limit proselytizing.43 However, most of the Muslim-dominated countries in North Africa do so. The constitutions hardly ever use the word “proselytizing.” For example, Section 11(5)(b) the 1966 Botswana Constitution, effectively provides for prohibiting proselytizing when it states that the legislature can enact law “for the 37 See I.M. Rautenbach, Proportionality and the Limitation Clauses of the South African Bill of Rights, 17(6) Potchefstroom Electronic Law Journal (2014), www​.scielo​.org​.za/​pdf/​pelj/​v17n6/​02​ .pdf, last accessed May 6, 2020. 38 See, for example, Article 212(3) of the 2016 Algerian Constitution; Article 175 of the 2011 Moroccan Constitution; and Article 1 of the 2014 Tunisian Constitution. 39 See Article 236 of the 2010 Angolan Constitution; Article 156 of the 1990 Benin Constitution; Article 299 of the 203 Burundian Constitution; and Article 118 of the 1992 Constitution of Mali. 40 See Section 100(2)(b) of the 1996 Gambian Constitution; Section 10 of the 1999 Nigerian Constitution; and Article 7 of the 1995 Ugandan Constitution. 41 See, for example, Article 52 of the 2016 Algerian Constitution; Article 52 of the Republic of Congo Constitution of 2001; Article 6 of the 1992 Constitution of Djibouti; Article 74 of the Egyptian Constitution; Article 55(4) of the 1992 Ghanaian Constitution; Article 91(2)(a) of the 2010 Kenyan Constitution; Article 71(1)(b) of the 1995 Ugandan Constitution; and Section 60(3)(a) of the 2016 Zambian Constitution. 42 See, for example, Article 39(2) of the 1992 Ghanaian Constitution; Article 5(b) of the 1986 Liberian Constitution; Article 39(1) of the Seychelles Constitution of 1993; and Article 156 of the 2005 Interim Constitution of Sudan. 43 See One-in-Three Countries Worldwide Limits Proselytizing, as Libya Arrests 4 Christian Missionaries, The Weekly Number (February 18, 2013), http://​theweeklynumber​.com/​weekly​-number​ -blog/​one​-in​-three​-countries​-worldwide​-limits​-proselytizing​-as​-libya​-arrests​-4​-christian​-missionaries, last accessed May 6, 2020.

168  Constitutions and religion purpose of protecting the rights and freedoms of other persons, including the right to observe and practise any religion without unsolicited intervention of members of any other religion” (emphasis added).44 Sudan’s 2005 Interim Constitution ostensibly protects religious freedom, but restricts apostasy, blasphemy and defamation of Islam.45 The constitutional protections it provides to protect non-Muslims are vague and unpredictable.46 On the whole, the problem of restrictions on the exercise of religious rights remains a major challenge in Africa. The 2015 Government Restrictions Index shows that five of Africa’s 55 countries (9 percent, namely Egypt, Morocco, Algeria, Eritrea and Mauritania) are classified as having “very high” government restrictions on religion, four (7 percent, namely, the Comoros Island, Sudan, Rwanda and Somalia) are classified as “high” and 20 (36 percent) as moderate and the majority, 25 (45 percent), as low. This broad overview provides some basis for appreciating the current state of religion in Africa.

5.

PROSPECTS FOR THE FUTURE

The constitutional recognition and protection of religious freedoms today in Africa reflect the growth of a new human rights-conscious culture following the wave of democratization and constitutional reforms that swept through the continent from 1990. These developments have coincided with new threats posed by religious revivalism by extremist groups from the two mainstream Christian and Islamic religious groups. What impact have the recent regulatory approaches had on the standard of freedom of religion on the continent? A number of general observations can be made about the practical effect of the new approaches to religious freedom in Africa. In line with current human rights principles, the general trend in African practice appears to be to delink religion from the state. This has been more formal in Christian-dominated countries than Muslim-dominated ones. The constitutional recognition of Islam as a state religion in almost all Muslim-dominated countries inevitably places it in a privileged position vis-à-vis other religions. Where a religious denomination and its institutions become closely tied with state power, there is a risk that unpopular state activities are conflated with the religion in question to the detriment of its reputation. An example of this was the official policy of Islamization and Arabization that plunged Sudan into a bloody civil war in 1955 and in turn led eventually to the secession of South Sudan in 2011 after millions had lost their lives. Even where there is no state religion, maintaining a complete separation of state and religion is almost impossible. This is largely a legacy of the past. The two dominant religions in Africa played a significant role in colonialism’s so-called “civilizing mission” in Africa. The religious missions, through their evangelization campaigns and social projects providing education and welfare services such as hospitals, created a moral order that served purportedly to legitimate the colonial powers and convert the population into good, obedient and faithful Christians or Muslims who were loyal and submissive to the authorities. Since independence, 44 Other examples are Section 11(5)(2) of the Mauritius Constitution of 1968; Section 24(5) (b) of the 1991 Sierra Leone Constitution; and Section 23(4)(b) of the Swaziland Constitution of 2005. 45 See the vaguely worded Article 16(1). 46 See Articles 156–58.

Constitutions and religion in Africa  169 most African states have taken over these services, but in many countries the governments and religious bodies have continued to collaborate in providing social services. It can be argued that secularism, state neutrality and the separation of religion from state matters in Africa is a pragmatic and not a perfect solution to a complex relationship. This has therefore not prevented profitable collaboration between governments and religious denominations in pursuing the goal of economic, social and cultural development in the respective countries. This is particularly the case in education. It is thus not surprising that the framework for collaboration in this area is expressly stated in some constitutions. For example, Article 14 of the 1990 Benin Constitution provides, inter alia, that “religious institutions and communities shall cooperate equally in the education of the youth.”47 The effect of this is that many African countries permit churches to run schools that provide religious instruction. The seeds of genuine religious freedom sown in the post-1990 African constitutions have not grown and flourished to the extent many had hoped for. One of the main reasons for this is that the democratic wind of change that encouraged the expansion of religious freedom coincided with the rise of Islamic fundamentalism in the wake of the 9/11 attacks in the United States in 2001. This, combined with the Arab uprisings that began in Tunisia in December 2010, quickly spread to other countries in the region, and made the inclusion or reinforcement of sharia in the constitutions of African countries with dominant or significant Muslim populations a cause célèbre. In countries with dominant Muslim majorities, such as Algeria, Egypt, Morocco and Tunisia, and in those with smaller but still fairly significant Muslim populations, such as Burkina Faso, Mali, Niger, Nigeria and Senegal, militant groups sprang up, advocating for Muslim states based entirely on the Koran and sharia law. Other extremist jihadist groups have sought to achieve their ends through terror. Two of the most notorious – Boko Haram48 and Al-Shabaab – have taken control of large territories in certain countries and brought them under their rule. Boko Haram, which is based in Northeast Nigeria but active as well in Cameroon, Chad and Niger, controls some territory in Northeast Nigeria, where at one stage it tried to establish an Islamic caliphate.49 The other Jihadist group, Al-Shabaab,50 has at various stages controlled large parts of central and southern Somalia, which it rules under Sharia law.51 In spite of the resurgence of Islamic fundamentalism and the efforts of militant groups to establish Islamic states through coercion and terror, the influence of Islam on modern African constitutions has not changed fundamentally from what it was before 2010. In fact, the new Egyptian and Tunisian Constitutions of 2014 underscore this point. It is clear from 47 See similar provisions on education in Section 11(2) of the 1966 Botswana Constitution; Article 45 of the 2006 Constitution of DR Congo; Article 10 of the 2016 Constitution of Côte d’Ivoire; Articles 22–24 of the 2001 Senegalese Constitution; Section 23 of the 2011 Transitional Constitution of South Sudan; and Section 23(3) of the 2005 Constitution of Swaziland. 48 The name means “Western education is sin.” 49 The dream of most Muslim fundamentalists is to unite all Muslims in an empire in the form of a caliphate. The caliphate is thus an Islamic form of government representing the political unity and leadership of the Muslim world. The head of the caliph (state) is assumed to act as the vessel of Muhammad’s political authority. The goal is not only to unite all Muslims in this caliph but to build a massive army for waging a jihad against all infidel states. 50 The name is the Arabic word for “youth.” 51 Boko Haram and Al-Shabaab are both offshoots of al-Qaeda, which was responsible for the 2001 attacks in the United States, as well as numerous others elsewhere in the world. There are other such jihadist groups in Africa, among them the Ansar al-Sharia organizations which, based in Libya and Tunisia, advocate for the adoption of Sharia law.

170  Constitutions and religion a review of these constitutions that in spite of the rise of Islamic fundamentalism and activism and attempts to establish Islamic republics in many African countries with the backing of al-Qaeda-affiliated groups, the majority of Africans – even in countries such as Egypt and Tunisia, where Muslims are the dominant majority – are not ready for Islamic states or radical constitutional changes based on Islam. Thus, although the populations of both Egypt and Tunisia were happy to vote for Islamic parties, they remain firmly opposed to the introduction of constitutional provisions that could lead to Islamic states in which, among other dramatic changes, the rights of women would be forfeited. The constitutional entrenchment of Islam as a state religion is arguably a pragmatic political compromise to assuage those who aspire to have an Islamic caliphate. One of the factors contributing to Islamic extremism, as well as to Christian fundamentalism, is the prevailing economic crisis and its ensuing poverty and unemployment. This has led to massive defections from mainstream Muslim and Christian religions to extremist groups. Due to disillusionment, uncertainty and insecurity, many Christians have defected to Pentecostal churches whose prosperity gospel promises hope at a time of desperation and misery. Similarly, while the rise of Pentecostalism and religious cults and sects has made formal regulation of religious denominations difficult, the easy recruitment of unemployed Muslim youths into terrorist groups thanks to grandiose promises of money and food supplies remains a threat to national security in many African countries. In the final analysis, it is difficult to say if modern African constitutions have succeeded in finding a balance between, on the one hand, a secular state or a state with an official religion, and, on the other, freedom of religion. As we have seen, with the exception of a few countries such as South Africa, Kenya and Zimbabwe which have a general limitation clause imposing strict proportionality requirements on regulations affecting the exercise of religious rights, most constitutional limitation provisions are couched in broad and obscure language. They provide excessive scope for a wide variety of legal and non-legal restrictions to be invoked in arbitrarily curbing the exercise of the right. For example, it is difficult to challenge restrictions imposed on such vague grounds as “national security” or “public policy.” Besides, some of the limitations based on “public morality” and “public health” date back to the colonial era and mainly target traditional African practices the colonialists found problematic.52 Nevertheless, religious diversity remains a significant source of potential conflict in most of Africa’s multi-religious states.53

See Hackett, supra note 2, at 871. For example, although the 1999 Nigerian Constitution states clearly in Section 10 that “the government of the Federation or of a State shall not adopt any religions as a state religion,” a number of states in northern Nigeria declared Sharia law in the state. The effect and modalities of its implementation has effectively made Islam the religion of the state. See Mohammed Rufai, Sharia Law Declared in Muslim Nigerian State, The Independent (October 27, 1999), www​.independent​.co​.uk/​news/​world/​africa/​ sharia​-law​-declared​-in​-muslim​-nigerian​-state​-739026​.html, last accessed May 6, 2020; and Loe Igwe, Sharia Implementation in Northern Nigeria: An Asset or a Liability? Sahara Reporters (December 24, 2013), http://​saharareporters​.com/​2013/​12/​24/​sharia​-implementation​-northern​-nigeria​-asset​-or​-liability​ -leo​-igwe, last accessed May 6, 2020. 52 53

Constitutions and religion in Africa  171

6.

CONCLUDING REMARKS

The era of democratization and constitutionalism in Africa in the 1990s led to the progressive constitutional entrenchment of religious freedom, in line with the growing human rights culture of religious tolerance. There is much variation in the way different African countries recognize and protect this freedom. While most of the constitutions explicitly or implicitly provide for a secular state in which there is a separation of religion from the state, others provide for a state religion. The latter is the approach adopted by the northern African Arab-leaning states and some other states with a Muslim majority. Yet despite their differences of approach, most constitutions provide for religious freedom and respect for the rights of religious minorities. While Christianity and Islam are the two dominant religions regulated in the constitutions of most states, there are some direct and indirect references to African traditional religions, which still have many adherents. In practice, most African countries – especially those with Muslim majorities – are still grappling with the challenges of religious diversity, particularly that of translating religious freedom into tolerance of religious minorities and the granting of space to them in which to worship according to their beliefs. This challenge has become all the harder with the rise of Islamic fundamentalism: many Muslim-dominated states are in the horns of a dilemma in which they recognize Islam as a state religion yet seek to avoid being transformed into Islamic republics of the kind advocated for by extremist groups such as Boko Haram and Al-Shabaab. This analysis of African constitutional provisions on the recognition of religious rights in many respects confirms the conclusions of the 2015 Government Restrictions Index that the level of governmental restriction on religious freedom is moderate in almost half of African countries. The reality is that, in both secular and non-secular states and those with either Christian or Muslim majorities, constitutions have allowed too much scope for arbitrary interference with religious freedom. At a time when memories of 9/11 are still vivid, and terrorism perpetrated by religious extremists is a significant menace, the balance remains heavily weighted in favor of restraints on religious freedom.

10. Islam, Sharia and comparative constitutionalism Abdullahi Ahmed An-Na‘im

1. INTRODUCTION My motivation for contributing a brief chapter to this volume is my wish to demonstrate that Islam as a religion is in fact fully consistent with the concept, institutions and processes of comparative constitutionalism. Part of the argument I am making is that the social and political precepts of Islam are compatible with global consensus on the theory and practice of constitutionalism, as explained below. Whatever difficulties Muslim communities in Africa and Asia are having with constitutional self-determination are shared with all other post-colonial states in those regions as consequences of arbitrary state formation and under-development as a result of European colonialism and neocolonial hegemony. Noting such factors is the outcome of socio-political analysis of historical and contextual factors, and not abdication of responsibility. A related comparative perspective can be drawn from the incremental development and setbacks of constitutionalism among European and American states. This globally inclusive comparative perspective also indicates challenging the Euro-centric imperialist attitude that refuses to take the knowledge and experience of non-Europeans seriously. Even when included – often in tokenistic fashion – Islam and Sharia tend to be perceived as ahistorical, exotic and alien domains which are inappropriate for serious study and reflection. The same condescending attitude tends to summarily reject challenge of this “orientalist,”1 liberal relativist attitude as “proof” of the need for the “civilizing mission” to prescribe the ends and means of scholarship for presumably inferior oriental societies. A related factor is the assumption that the burden of proof is on non-Western societies to demonstrate the compatibility of their religious and cultural traditions with the requirements of modernity and development. The fallacy of this imperial position becomes clear when we examine the implications of reversing this arbitrary assumption by reflecting on the two World Wars, and devastating fascism and Soviet totalitarianism in recent history of European societies. To reaffirm this challenge to liberal relativism, I argue that it is the imperial, Euro-centric bias that is hindering an appropriate understanding of domestic (internal) politics and of international relations in the present age of self-determination and human rights. In reality, and for 1000 years, Muslim societies from West Africa to central Asia produced and sustained mature civilizations on their own terms. As the conceptual and institutional foundation of those multiple civilizations, Sharia scholars also contributed sophisticated normative and institutional models for the full range of the life experiences of Muslim communities around the world. For

1 I prefer the term “Sharia” over “Islamic law” because representing Islamic law as an accurate and appropriate translation of Sharia is grossly misleading for implying that Sharia as such is or can be enacted as the positive law of the state. The political will of the state cannot produce a religiously authoritative norm, regardless of whether the state describes itself as “Islamic” or “secular.”

172

Islam, Sharia and comparative constitutionalism  173 instance, the institution of Waqf, which is similar to the subsequent institution of “trust” in English common law, enabled scholars to do their most advanced work in developing Sharia independently of the state or ruling elites by relying on Waqf funding for themselves and their colleges (madrasas) and students.2 This is not to suggest that all Muslims adhered to the same specific conception of Sharia; but only to emphasize that to each community of Muslims, its own conception is integral to its worldview and moral compass. Regardless of its formal or official standing as state law or not, Sharia is an important moral and ethical system for one-fifth of the total human population of the world today (i.e. one in every five persons is a Muslim). More than one-quarter of the members of the United Nations states are states where Muslims are the clear majority of the population.3 One of the key difficulties for the proposed analysis is that comparative reflection on such foundational concepts and experiences like constitutionalism is the contested field of the framework and scope of comparison. The difficulty with this side of the subject, especially for post-colonial societies, is how to avoid the “dependency trap.” By this I mean the tendency of post-colonial elites to continue to rely on the epistemology and methodology of their respective colonial European power, whether it is the United Kingdom, France, Spain or Italy. My assertion of epistemological and methodological self-determination leads me to speak of constitutionalism, instead of constitutional law, because the term “law” already assumes a European frame of reference. In my view, the objective of comparative study and reflection is not to adapt or adjust the constitutional experiences of any country to fit a preconceived model of “the” constitution that has evolved in another context. The same imperial mindset, whereby the center of power dictates to the provinces, can also apply to the term “constitutional law.” I will return to these issues later in terms of constitution and constitutionalism. Another key difficulty for the subject of this chapter relates to the comparative analysis of Islam and Sharia. Islam and Sharia are not synonymous, though they are related in ways that facilitate the legitimacy of multiple formations of constitutionalism. Briefly defined, Sharia is the historical and contextual human understanding of Islam which became authoritative by virtue of acceptance by multiple generations of Muslim communities. This quality of authority through inter-generational consensus permits developments of the concepts and institutions of Sharia in response to the evolving needs and concerns of Muslim communities – hence what I call legitimacy of multiple formations of constitutionalism. Although this process of formation and consensus of Sharia norms and institutions developed from the start, the term was unknown to the Muslims of the first and second century of Islam; and when it began to be used, its meaning among Muslim scholars was quite different from the usage of the term in subsequent generations. As Wilfred Candwell Smith concluded

2 Wael Hallaq, Can the Shari‘a Be Restored?, in Islamic Law and the Challenge of Modernity (Yvonne Yazbeck Haddad and Barbara Freyer Stowasser eds., 2004). 3 Muslims constitute the predominant majority (at least 60 percent) of the population in 41 countries, from Senegal (94 percent) and Sierra Leone (60 percent) in West Africa to Turkey (99.8 percent) and Kosovo (90 percent) in Eastern Europe; Tajikistan (97 percent) and Uzbekistan (88 percent) in Central Asia; and Malaysia (60.4 percent) and Indonesia (86.1 percent) in Southeast Asia. See Central Intelligence Agency, The World Factbook, Field Listing: Religions, www​.cia​.gov/​library/​publications/​ the​-world​-factbook/​fields/​2122​.html, last accessed May 6, 2020.

174  Constitutions and religion in his study of the nature and history of Sharia in light of his examination of many original manuscripts from the first four centuries of Islamic theology (Kalam):4 That Shari means, primarily, “moral”, not “legal.” Similarly taklif (accountability) means moral responsibility, not legal responsibility. The implication is that the concept of law is not prior to the concept of responsibility, but vice versa […]. That what has lately [...] been conceived as obedience to, or transgression of, a law, was conceived and felt [emphasis added] by the Muslim writers under survey as obedience or disobedience to God. [An-Na‘im: i.e. the early emphasis among Muslims was a relationship to God, not to “law”] [...] At least, it would not be impossible to contend that, historically, the rise of a concept law (sic) as religiously absolute may be correlated with a decline, if not of Islamic civilization, anyway of the vigor of its intellectual and religious life […]. That for kalam writers [Muslim theologians], during the centuries surveyed, the (or a) law does not determine right and wrong. Only God can, and only God does, do that. The central Islamic fact religiously has been the idea of moral responsibility. The law is the result of that responsibility, not its cause; the sociological or mundane product, not its cosmic basis […].

I quote Smith at length here because of the contrast of his conclusions based on the writings of Muslim theologians of the first three centuries of Islam with the frantic, often fascist discourse about the so-called “Islamic state” and enforcement of Sharia as the positive law of the state, as I have argued elsewhere.5 In light of the preceding remarks, I will begin by a brief timeline from the beginnings of Islam in Mecca and Medina in Western Arabia during the first half of the seventh century, followed by an outline of the origins and development of Sharia to emphasize the historical and rational nature of Islam and Sharia as its social and political normative system.

2.

ISLAM AND SHARIA (ISLAMIC LAW)

In 610 C.E., when he was 40 years old, the Prophet Muhammad is believed by Muslims to have started to receive divine revelation (the Quran). He experienced extreme difficulty and hardship in preaching his message in his hometown of Mecca, a town in Western Arabia, and as a result, he migrated with his small group of followers to Medina, another town in Western Arabia, in 622. That migration (hijra) marks the beginning of the Islamic calendar. The hospitable environment of Medina enabled the Prophet to consolidate that first Muslim community and gradually expand his strong influence throughout Arabia. By the time of the Prophet’s death in 632, Muslim control extended throughout Arabia, including his hometown Mecca, and began to reach into Southern Egypt, Iraq and Syria. The origins of the still active Sunni-Shia sectarian divide among Muslims started in a political conflict over the succession of the Prophet in 632, and intensified through a series of civil 4 Wilfred Candwell Smith, The Concept of Sharia Among Some Mutakallimun [Theologians], in Arab And Islamic Studies In Honor Of Hallilton A. R. Gibb 581 (George Makdisi ed., 1965). In this paraphrasing of Smith, I am omitting the numbering of points used by Smith in this chapter as published. 5 Abdullahi Ahmed An-Na‘im, Islam and the Secular State: Negotiating the Future of Shari‘a (2008). I have also challenged the possibility of an Islamic state, or the enforcement of Sharia as the law of the state, in many articles and book chapters, all available for download free of charge at my website, at https://​scholarblogs​.emory​.edu/​aannaim/​recent​-publications/​.

Islam, Sharia and comparative constitutionalism  175 wars throughout early Islamic history.6 Abu Bakr, the Prophet’s first male adult supporter, prevailed and became the first caliph (ruler of the polity). Muslims who supported Abu Bakr came to be known as Sunnis, and those who supported Ali (the Prophet’s cousin who was married to Fatima, the Prophet’s only surviving child) came to be known as shi‘at (the partisans of) Ali. When Ali was assassinated in 661, Muawya established the Umayyad dynasty (the Umayyad were a clan of Quresh, the Prophet’s tribe). The main phases of early Islamic history from a Sunni perspective were the caliphate of Medina (632–61); the Umayyad dynasty (661–750); and the Abbasid dynasty (750–1258). Shia Muslims maintain throughout Islamic history that the Prophet had expressly declared Ali as his successor, and therefore reject the authority of the first three caliphs of Medina (Abu Bakr, Umar and Othman), who are deemed illegitimate usurpers. The characteristic feature of Shia doctrine is the belief that their imams are the rightful leaders of all Muslims. But the Shia also came to be divided into various groups due to disagreement about the proper succession of their own imams, even though they all share certain general principles and practices – especially the belief in the infallibility of their imam.7 Although the Shia were probably a minority throughout Islamic history, their dynasties ruled significant parts of the Muslim world, especially in two periods: around 900–1100 in Egypt, Syria and Iraq; and 1500–1700 in Iran and Northern and Southern India. Their demographic of situation, it seems, encouraged Shia dynasties to support a more open and ecumenical public discourse than Sunni regimes. The dynamic theological and political situation of the Shia also resonates most recently in the Iranian revolution in 1979 and its strong impact on Sunni Muslims around the world. The success of Khomeini was also inspiring to many Islamic political movements, as they seemed to take Iran’s experience as representative of all Muslims in the post-colonial context, rather than of a sectarian minority. To resume the narrative of the systemic development of Sharia as a coherent system, this began during the early Abbasid era (after 750 C.E.), as demonstrated by the emergence of the major schools of jurisprudence, the systematic collection of Sunna as the second and more detailed source of Sharia, and the development of the methodology, which came to be known as the science of the foundations or principles of human understanding of divine sources (Usul al-Fiqh). These developments took place about 150 to 250 years after the Prophet’s death, which means that the first generations of Muslims did not know and apply Sharia in the way this concept came to be accepted by the majority of Muslims for the last 1000 years. Consequently, the early Abbasid era witnessed the emergence of the main schools of Islamic jurisprudence, including the main schools which survive to the present day that are attributed to Abu Hanifa (died 767); Malik (died 795); al-Shafi‘i (died 820); Ibn Hanbal (died 855); and Ja‘far al-Sadiq (died 765), the founder of the main school of Shia jurisprudence. The early Abbasid era also witnessed the emergence of authoritative compilations of Sunna 6 See Wilfred Madelung, The Succession to Muhammad: A Study of The Early Caliphate (1997). Describing the Sunni/Shi divide as “sect” and “sectarian” can be problematic because of the negative Christian connotations, but we use these terms for their familiarity to readers and use in some excerpts. 7 The term “imam” can refer to any Muslim who leads a group of Muslims in prayer, but can also mean a scholar of great learning and distinction (e.g. Imam Abu Hanifa or Imam Malik, founders of major schools of Islamic jurisprudence) or a religious leader of a community of Muslims. This general meaning is also used by the Shia, but should not be confused with the title of the supreme religious leader as a matter of Shia doctrine.

176  Constitutions and religion (Hadith), like those attributed to al-Bukhari (died 870) and Muslim (died 875) on the Sunni side; and al-Kulayni (died 941) and Ibn Babawayh (died 991) for the Shia. What came to be known among Muslims as Sharia was therefore the product of a very slow, gradual and spontaneous process of interpretation of the Quran, and the collection, verification and interpretation of Sunna during the first three centuries of Islam (the seventh to the ninth centuries C.E.). That process took place among scholars and jurists who developed their own methodology for the classification of sources, derivation of specific rules from general principles and so forth. Modern scholars debate whether or to what degree the outcome of the early formative process represented the early scholars’ response to the concrete needs of daily practice in the communities or speculative development of theoretical principles to their logical conclusions. In either case, it is clear that scholars who were clearly independent of the state and its institutions developed the framework and main principles of Sharia into an ideal normative system. Islamic law is said to have evolved as “jurists law,” in the sense that the founding jurists proclaimed the norms and institutions of Sharia as they believed them to be stipulated by the Quran and Sunna, and not as judicial precedents in actual cases, as happened some four to five centuries later in the development of English common law. As to be expected, there was much disagreement and disputation among those early scholars about the meaning and significance of different aspects of the sources with which they were working. Moreover, although those founding scholars are generally accepted to have been acting independently from the political authorities of the time, their work could not have been in isolation from the prevailing conditions of their communities, in local as well as broader regional contexts. Those factors must have also contributed to disagreements among the jurists, and sometimes to differences in the views expressed by the same jurist from one time to another, as is reported of the changes in the juridical opinions of al-Shafi’i when he moved from Iraq to Egypt. Those disagreements eventually evolved into separate schools of Islamic jurisprudence (madhahib), and differences of opinion persisted among scholars of the same schools, as well as between different schools. One factor to note about the nature and development of Sharia is that the founding jurists followed an integrated approach to their subject as a total normative system that included doctrinal or dogma matters, ritual practices and ethical norms, as well as legal issues. The original manuscripts compiled by the early jurists out of the oral tradition of their master scholars would normally begin with issues of confession of the faith, various ritual practices, rules of jihad and conduct of war, treatment of heretics and apostates, justice and fairness in social and commercial dealings and so forth. That method of organizing original manuscripts and subsequent commentaries was familiar and logical for the early Muslim scholars and jurists, judges and practitioners of subsequent generations who were trained in the specialized colleges (madrassa). However, as those foundational sources are inaccessible to modern lawyers who have to go through the whole text to discover relevant legal principles and rules, those manuscripts are now “translated” through modern European concepts and terminology in order to reproduce the material into modern-style legal textbooks. The comparative study of the nature and relevance of Sharia in the twenty-first century should neither exaggerate nor underestimate its importance. The subject should not be approached with the expectation of finding comprehensive or systematic code or codes that present definitive answers to precise legal issues of the day. Conversely, some Sharia principles can be appropriate for modern application. It is therefore important to note that Islamic jurisprudence includes many outstanding examples of legal precision and sophistication in

Islam, Sharia and comparative constitutionalism  177 comparison to the most recent or advanced doctrine and analysis. The difficulty in appreciating the high jurisprudential quality of the “lawyer’s law” aspects of Sharia may be due to assumptions about the nature of law as a social and political institution. The ambivalent status of Sharia in Islamic societies today makes the comparative study of the subject more interesting and instructive than if it were a legal system in the modern sense of the term. Yet if Sharia is to remain relevant or influential at all, it must be reconciled with the drastic transformation of the economies, political regimes, social institutions and legal systems of current Islamic societies. The difficulty in appreciating the quality and relevance of these legal aspects of Sharia may be due to narrow conceptions about the nature of law as a social and political institution. One aspect of the comparative study of Sharia is to appreciate its binding authority for Muslims. Although it is not “state law” as such, Sharia has far-reaching daily consequences and is extremely influential among Muslims everywhere because it is an integral part of their religious identity as Muslims, regardless of its formal legal status in the country. In many parts of the Muslim world, from North and West Africa to South and Southeast Asia, Sharia acts not only at a personal and socio-political level, but also as an important source of state law and administration of justice. However, analysis of Sharia’s legal role must be conducted with the knowledge that the legal systems of all Muslim-majority countries today are shaped by Western conceptions of the state and law. While there are wide variations in its role and influence, Sharia as such is not the sole basis of the legal system of any country – including Iran, Pakistan and Saudi Arabia, which claim to be Islamic states. For comparative purposes, the challenge is to understand that Sharia is a powerful normative system without being an integral part of any “state law.” The idea of Sharia includes aspects that are voluntarily observed by Muslims independently of any state intervention, and elements that provide ideas for enactment into state law. Moreover, the need for an active role for the state has been drastically enhanced in the post-colonial context of present Islamic societies. The imperial states of the pre-colonial era had minimal involvement in the daily governance and administration among local communities. The extent and manner of the application of Sharia have drastically changed with the introduction of the European model of the state and conceptions of law as a result of colonialism. Whatever they may think of their present situation, all Muslims today live under the exclusive jurisdiction of territorial (nation) states, which exercise increasingly extensive powers in governing every aspect of the economic and social life of persons and communities. However, to enforce any aspect of Sharia as state law requires state institutions to choose among competing interpretations of Sharia. Since the content of statutes enacted as Sharia is in fact the product of subjective selectivity and political expediency of ruling elites, the outcome is not Sharia as such for those individual believers who do not agree with that particular interpretation. Conversely, allowing judges and administrators the degree of discretion they had in the pre-colonial system, as assumed by the founding scholars of Sharia, makes the whole system arbitrary and unstable, as each judge will decide which school of Islamic jurisprudence to follow or which view within that school to apply. The present status of Islamic law is ambiguous, even when it is alleged to be the sole basis of the legal system of a country. Part of the difficulty is rooted in the mismatch between the nature and authority of Sharia and modern state legal systems.

178  Constitutions and religion

3.

CONSTITUTIONS AND CONSTITUTIONALISM

Constitutionalism is contingent and contested in any country, never to be assumed achieved because it is always open to regression and collapse everywhere. Rebellions, revolutions and constitutions can be accurately evaluated only in retrospect, through practice and over time. Yet prospective theoretical reflection is necessary for the implementation of successful constitutional practice. The process should be studied as holistic and organic, with long-term initiation and development of constitutional norms and institutions beyond the formal writing and adoption of a constitutional text. The drafting and enactment of a formal text of a constitution are necessary but insufficient conditions for generating the underlying cultural and institutional foundations for the making of sustainable and successful constitutions. This is the first premise of the study – namely, the dialectic of the local and international. Speaking of the political organization of a state in constitutional terms indicates particular ways of regulating the sharing of power and resources, keeping the peace and protecting individual and collective rights. Human societies have historically had some form or level of political organization and functional governance for the purposes of allocating political power and economic resources, keeping the peace and protecting the rights of persons and groups. Early experiences can be studied on their own terms, but that is not within the scope of this study. Our framework is the recent global progression toward constitutionalism; however, we must begin by being clear about what that means. The most destructive view of the prospects of constitutionalism anywhere – especially in Muslim communities – is that the constitutional principles we know from our home settings should be applied to those countries because they are working well in our own country. This view is destructive because it precludes the possibility of independent evaluation of any experience. In particular, the argument that the enforcement of Sharia as the positive law of the state repudiates the foundation of constitutionalism cannot be made without first categorically affirming that the criterion being applied is not that of any other country. The standard for evaluating any constitutional framework must be indigenous to the society in question. For instance, the British doctrine of supremacy of Parliament is inconsistent with the principle of judicial review of the constitutionality of legislation in the United States, but neither doctrine or practice should be judged by the standard of the other. Both constitutional experiences will therefore fail if judged as the standard of the other. The core purpose of constitutionalism is to uphold the rule of law, enforce effective limitations on government powers and protect fundamental rights. A more universally accepted understanding of constitutionalism is evolving over time, but that can only be the outcome of consensus among various practical experiences in different parts of the world. Their articulation and development should not be limited to any part of the world or based on one ideological or philosophical tradition or another. This is the meaning of the sub-title above – from local practice to universal principle and back to application on the ground. Evolving consensus on general principles of constitutionalism should emphasize the role of those principles as means to the ends of successful and sustainable constitutional governance in country-specific contexts. The ends of individual freedom and social justice can be achieved only through an indigenous process of trial and error in the actual application of these principles, rather than through waiting for so-called ideal conditions for realizing freedom and justice. Societies do not, of course, set out to engage in a process of trial and error; but they all

Islam, Sharia and comparative constitutionalism  179 tend to acknowledge at some point of their history that this or that constitutional provision was wrong and try to correct the mistake. We should therefore look for appropriate circumstances that are open to correction of theory and adjustment of practice, rather than some alleged ideal conditions that will somehow produce appropriate parameters for practice. The end of constitutional governance is realized through the means of practical application of general principles in the specific context of each society. Democratic governance is the result of experiences with democratic government, and not the immediate outcome of despotic rule. Since competition over power and resources cannot be practically mediated by all members of any society, there has to be some form of delegation from those who cannot realistically be part of the daily and detailed processes of administration and adjudication. Those who must delegate to others still need to ensure that this process serves their interests by participating in the selection of delegates and in holding delegates accountable to ensure that they act according to the terms of delegation. These pragmatic considerations underlie the basic constitutional principles of representative government and bureaucratic institutions of administration of public affairs that should also be accountable to the citizens of the country. For these processes to work properly in each setting, the general population should be able and willing to effectively exercise its powers of delegation and its ability to ensure the accountability of public officials. To ensure and facilitate a wide range of operations and functions of democratic government, all citizens must enjoy certain individual and collective rights, such as freedom of expression and association, access to information, and effective remedies against the excess or abuse of power by official organs. In the final analysis, the best principles and mechanisms of constitutional governance will not operate properly without sufficiently strong civic engagement by a critical mass of citizens. The various aspects of these processes are interdependent and interactive. For instance, rights like freedoms of expression and association are not useful without the institutional means to exercise judgment and continuous accountability of government officials, who should not be able to obscure their activities or hide their excess or abuse of power. This indicates the general need for transparency of official action. Administrative and financial transparency is unlikely to lead to effective legal and political accountability without competent and independent institutions that can investigate possible violations and adjudicate disputed issues and questions. The most critical aspect of constitutionalism is strong civic engagement by a critical mass of citizens. This aspect includes the motivation of citizens to keep themselves well informed about the public affairs of their society and state, as well as to organize themselves in independent organizations that can act on their behalf in both effective and sustainable ways. Constitutionalism is ultimately concerned with realizing and regulating this ideal of self-determination in the most sustainable and evolving manner possible. Since each function of self-government requires a different set of skills and institutions, it may be necessary for these functions to be performed by separate officials and organs – observing their distinctive procedures in accordance with the rationale of each function. This is known as “separation of powers,” which is observed strictly in some constitutional systems (e.g. the United States), yet very differently in others (e.g. the United Kingdom). So, it would be wrong to insist that the underlying functions of self-government must be performed in specific ways that fit our perception of separation of powers.

180  Constitutions and religion The preceding examples illustrate not only that there is a simple, practical rationale for constitutional principles, but also that there are different ways to achieve the desired outcome. Ultimately, it is not possible to eliminate the role of human discretion and risks of miscalculation or overreach within any of the organs of self-government, however structured or organized. For instance, failure to limit or regulate the power of a supreme or high court to interpret constitutional provisions or adjudicate certain types of disputes may create greater risks of political manipulation or deadlock in the appointment of judges. The more serious the consequences of judicial adjudication of public policy or political issues, the greater the risks to the independence of the judiciary in the future, as the temptation to control or manipulate the highest courts will increase. The judicial banning of the death penalty, for example, may provoke a political backlash and lead to pressure to appoint certain judges to “correct” what is seen as a wrong view of the death penalty. Such judges may subsequently change more of the judicial and political balance of powers than intended by those who appointed them. It is also important to resist the impulse to require constitutional safeguards of good self-government to also expect them all to be implemented at once. Representative government, for instance, can be realized not merely in a variety of parliamentary or presidential systems, but also through traditional tribal structures. Where tribal structures are entrenched, as in Libya and Yemen, it makes more sense to seek realization and enhancement of the objectives of representative government through those traditional structures than by attempting to impose an alien and artificial parliamentary or presidential system. Each of these constitutional experiences should work in its totality, regardless of the demographic profile of the population and its socio-economic and political relationships, the conflicts that are likely to arise and the realistic mechanisms for their mediation. The conclusion of this part of the analysis is that constitutionalism cannot succeed in Muslim-majority countries or anywhere else in the world except through indigenous trial and error, whereby norms and institutions are developed gradually over time in processes that combine lessons learned from both bad experiences and good practices. This does not mean that comparative reflection about various constitutional models and experiences is irrelevant, but rather that the question is how best to compare and thereafter utilize the lessons learned. The main considerations to be explored next are how local experiences should interact with what we call “international principles.”

4.

COMING TO TERMS WITH THE POST-COLONIAL STATE

The constitution-making process, I believe, is supposed to adapt the state to the needs and aspirations of the people of the country in question, as well as conditioning civil society to the values of self-determination and social justice among the population at large. This is what I mean by “coming to terms with the post-colonial state” in the title of this section. On the one hand, there is the apparent reality of the post-colonial state, which may be perceived by some segments of the population as illegitimate or inappropriate in view of its alien origins, colonial associations and inability to implement Sharia. The problematic origins and negative associations of the nation state are true, of course, but the nation-state system is now a global reality of national politics and international relations. On the other hand, the so-called Islamic state is both a historical myth that did not exist anywhere and a contradiction in terms because it is impossible to define or verify what makes

Islam, Sharia and comparative constitutionalism  181 the state “Islamic.” The impossibility of defining the Islamic quality of the state or verifying its application to any state is reflected in, for example, the current claims of both Iran and Saudi Arabia to being Islamic states, while each of them is deemed to be a heresy to the other. Moreover, neither the Shia ideology of Iran nor the Wahabi ideology of Saudi Arabia is accepted by the majority of Muslims. It is true that religious truth cannot be decided by majority vote, but there is no independent, politically neutral way to adjudicate this issue. There is no commonly accepted criterion among Muslims at large about which of the two, if either, is an Islamic state, or agreed mechanism or process for adjudicating the issue. However – and regardless of the characterization of the state as Islamic or not – it is clear that the enforcement of certain aspects of Sharia by the state is fundamentally incompatible with the theory and practice of constitutionalism. The concept of citizenship, which is essential for constitutionalism, is incompatible with structural discrimination among the population on grounds of religion and sex. For instance, those among the population who are deemed by Sharia to be unbelievers, like Buddhists, cannot be citizens of an Islamic state at all; while People of the Book – mainly Christians and Jews – are entitled to protected status (dhimma), but not equal citizenship. Similarly, Muslim women cannot be equal to Muslim men in a wide range of fields, from criminal law to inheritance to family law. Equal citizenship and respect for fundamental rights are integral to constitutionalism as defined by global consensus, although many states may not qualify as constitutional, regardless of the religion of their population. In contrast, discrimination on grounds of sex and religion is integral to interpretations of Sharia accepted by the vast majority of Muslims today. This means it is not possible to expunge those discriminatory principles of Sharia and still claim to speak of the implementation of Sharia in an integrated, methodologically coherent normative system. It may be possible to argue for reform of interpretations of Sharia,8 but until Muslims at large accept such an alternative view of Sharia, unequal citizenship and violation of fundamental rights will be the law of the land if Sharia is enforced by the state. Coming to terms with the post-colonial state entails transforming its anchor in colonial concepts, norms and institutions to an Islamic view of such anchor which is also consistent with constitutionalism. Such transformation is extremely difficult to achieve without candid and authoritative discourse from an Islamic point of view. The double challenge here is for public discourse to legitimize constitutionalism in Islamic terms without ceding the concept and its practice to colonial or neocolonial frame of reference. In other words, public discourse in Muslim communities should distinguish between the legitimacy of constitutionalism from an Islamic perspective on the one hand, and the illegitimacy of post-colonial/neocolonial dependency, as briefly explained earlier, on the other. While there are clear differences in the level of their social development and political stability, all Islamic societies today live under national constitutional regimes (some with unwritten constitutions) and legal systems that require respect for certain minimum rights of equality and non-discrimination for all citizens of the country. Even where national systems fail to acknowledge and effectively uphold these obligations, a minimum degree of practical compliance is ensured by the realities of international relations. This is not to suggest that Muslim-majority states today are already living up to these obligations, or that the states and legal systems are the same. All states and legal systems 8 Abdullahi Ahmed An-Na‘im, Toward Rights and International Law (1990).

an

Islamic Reformation: Civil Liberties, Human

182  Constitutions and religion throughout the world, whether of formerly colonized countries or colonial powers, are deeply historical and contextual. They all have their faults and limitations, just as every people have legitimate grievances against their state. The point here is to acknowledge the reality that the state formation and legal systems of Muslim majority countries are based on European models, regardless of claims about the application of Sharia as the whole or partial basis for the administration of justice. To evolve beyond the limitations of a post-colonial worldview, Islamic societies should draw upon pre-colonial normative and institutional resources for large-scale and stable political organization and legitimate mediation or adjudication of disputes among individuals and communities. To conclude this brief discussion of the need to come to terms with the post-colonial state, the object is not to deny or minimize the serious problems with the current reality of the so-called nation state. For instance, since the presumed “nation” tends to consist of the dominant ethnic, cultural, religious, and/or linguistic segment(s) of the population, it is more accurate to describe the political formation as “territorial state” rather than a nation state. The distinctive feature of the current global model of the state is that it is a political institution that exercises exclusive sovereignty over its territory and population. This form of state may be called “modern” in the sense of its recent origins, systematic functions and institutional structures; but without implying its superiority over “traditional” formations of political organization. The quality of each state, however classified, depends on its appropriateness and efficacy for its own population and context. Modernity does not guarantee individual freedom or social justice. After all, Nazi Germany and the Soviet Union were as modern states as any of the so-called liberal democratic states of today. In view of the various reservations and caveats already raised, how can comparative reflection be reasonably made among different Muslim communities and their states? In particular, since constitution making is a deeply historical and contextual process that takes its own course in each country, how can political and opinion leaders of each country understand and benefit from the experiences of other countries in the region and beyond? Why should the territorial boundaries of India and Pakistan, Syria and Lebanon determine the constitutional and legal future of the populations of these regions that were not states at all except by fait accompli of European colonial powers some five or six decades ago? An appropriate response to such concerns may be developed by focusing on the manner in which lessons and experiences are drawn and shared, instead of rejecting any possibility of benefiting from the experiences of others. The value of comparing the experiences of a group of Muslim or non-Muslim communities is that it may be instructive for them to understand the similarities and differences between their respective experiences, without taking a simplistic or deterministic view of success or failure of the constitution-making process by asserting or implying that one country is doing better or worse than the other. A shared challenge for all countries of the region may be how to draw on the cultural resources of each society in support of constitutional values of accountability, inclusivity of political decision making and consultative consensus building. Each country may benefit from how the others deal with these issues without pretending to fuse different sets of cultural resources.

Islam, Sharia and comparative constitutionalism  183

5.

CONCLUDING REFLECTIONS

Whatever obstacles and challenges each country faces in its constitution-making processes, only the people of that country can overcome those obstacles and challenges. In fact, that is exactly what self-determination means, which can be achieved only by the self for itself. At the same time, prospective theoretical reflection is necessary for each country to pursue its own constitutionalism. It is from this perspective that we can contribute to such theoretical reflection on the various experiences overviewed above. The premise of this chapter is that all constitutions are constantly “works in progress.” There are no definitive ways to identify objectives or determine final and conclusive achievements of constitution-making processes anywhere in the world, as new developments unfold and people respond to them. Different stages of current history of each country can all be seen as points along a continuum of the struggle of the peoples of each country for individual freedom and social justice that can be traced back to ancient history. In their most recent history and current geopolitical situations, these countries have also experienced varying degrees of European colonialism and they continue to suffer from some degree of post-colonial dependencies. The term “post-colonial dependency” refers to the tendency of formerly colonized societies to continue following the political institution and legal systems of European colonial powers. The constitutionally imperative scenario is for each country to implement its own constitution-making process, with setbacks and apparent failures to be expected as integral parts of the process. There is no blueprint for a linear process for copying a model of constitutionalism from another country, but only an organic indigenous process of trial and error. Even when nothing seems to be happening, constitutional evolution is in fact taking place in the people and their social and political institutions. It is also important to account for the transformation of the nature of the state from decentralized and distant imperial state in the pre-colonial era into a highly centralized, bureaucratic and expansive territorial state of the post-colonial era. This new form of the state requires constitutionalism to facilitate holding state officials accountable for the provision of essential services, to combat corruption and to safeguard fundamental rights of the individual against the coercive apparatus of the modern state. Still, how each state performs those functions within a constitutional paradigm is deeply historical and contextual; the path to constitutionalism is unique and specific to the country. It is possible and useful to benefit from the experiences of other countries, but never in terms of transplanting or copying models or mechanisms from one country to another. Any attempt to do that is a total negation of the right to self-determination, which is the essence of constitution making. In the final analysis, there is much more to constitution making than merely writing the text of a constitution. It is important to have a text as an authoritative reference to national consensus around the principles and institutions of constitutionalism, but the text is not sufficient to uphold those principles without a sustaining underlying culture. There is also the need for popular educational, artistic and intellectual efforts to promote a culture of constitutionalism. Maybe the conclusion is that there are no conclusions or best practices that can apply across to the next country, let alone across the region or beyond.

11. Managing religion and difference: ancient constitutionalism in the Theravāda Buddhist tradition and the transformative impact of the modernist and post-colonial turn1 Roshan de Silva-Wijeyeratne

1.

INTRODUCTION: REIMAGINING BUDDHIST CONSTITUTIONALISM AND NEW HORIZONS

There are some 350 million Buddhists around the world, from South and Southeast Asia to Russia and Western Europe. The majority of the world’s Buddhists (of whatever school) live in South and Southeast Asia.2 Buddhism is either the state religion or granted a privileged place in the modern constitutional orders of Bhutan, Cambodia, Thailand, Burma, Laos and Sri Lanka. In these jurisdictions, ‘Buddhist monks and interest groups play influential roles’3 in fashioning, applying and even creating constitutional jurisprudence. My purpose in this chapter is twofold: first, to present an account of how Theravāda Buddhist majority territories have managed (not necessarily through law as understood by moderns as the issuing of normative prohibitions) the relationship between Buddhism and the State; and, second, to address how this relationship informed the institutional management or mediation of non-Buddhist religions.4 1 In memory of my mother Mary Maudwyn Hermine de Silva-Wijeyeratne, pianist and music teacher, who passed away on 20 April 2020. 2 The three dominant schools of Buddhism are the Theravāda, Mahāyāna and the Vajrayāna – the first dominant in South and Southeast Asia; the second holding sway in East Asia; and the third dominant in Tibet, Mongolia and Bhutan. 3 Benjamin Schonthal, Formations of Buddhist Constitutionalism in South and Southeast Asia, 15 International Journal of Constitutional Law 707 (2017). 4 When referring to the ‘State’ in the post-colonial period in South and Southeast Asia, I capitalize ‘State’ to signify the territorially bounded nature of this entity. It is not appropriate to use a capitalized ‘State’ when referring to the traditional polities of South and Southeast Asia prior to the impact of European colonialism. Martin Stuart-Fox notes that it is ‘positively misleading [to use the word “State”], unless the altered meaning of the word in a Southeast Asian context is described in sufficient detail to preclude misunderstanding. Use of an alternative word, not weighed down with inappropriate Eurocentric connotations, is preferable’ (Martin Stuart-Fox, Conflicting Conceptions of the State: Siam, France and Vietnam in the Late Nineteenth Century, 82 Journal of the Siam Society 135–36 (1994), my interpolation). I use a capitalized ‘State’ when referring to the jurisdictions of South and Southeast Asia in their post-colonial or modern incarnation (as in the case of the Thai State, which emerges in the late nineteenth century); but I use the word ‘polity’ to refer to these jurisdictions in their pre-European incarnation in order to signify their relatively non-bounded and non-centralized nature. However, many authors use a non-capitalized ‘state’ to refer to the non-bounded nature of the pre-colonial polity throughout South and Southeast Asia (Stuart-Fox, supra in this note, at 135–36). Where appropriate, I adopt this stylization.

184

Ancient constitutionalism in the Theravāda Buddhist tradition  185 The introduction sets up the argument: I seek to go beyond the contemporary horizon of scholarship on Buddhist constitutionalism, the umbrella under which recent accounts of the relation between Buddhism, the State and religious minorities has been placed.5 The latter marks out as a focus of study two distinct themes. First, it has opened up inquiries in respect of jurisdictions such as Sri Lanka, Thailand, and Burma, and the manner in which Buddhist kings and Buddhist monks contested for control over land, taxes and autonomy prior to European intervention in South and Southeast Asia – Schonthal suggests that in this contested relationship, we have the antecedents of Buddhist constitutionalism in its pre-colonial incarnation.6 My argument develops Schonthal’s insight into a core point: that through this contested relationship, we see the emergence of a system of government and administrative management that can be characterized as an ancient constitution. For this purpose, the definition of the objectives of a ‘constitution’ is a mechanism for the organization and distribution of power, and this is precisely what I will show that the Buddhist mandala state, as the medium of organization of this ancient constitution, did.7 The focus in the introduction is on the pre-modern/ colonial actualization of the polity, and the manner in which the latter mediated not just Buddhist and non-Buddhist religions, but also intra-Buddhist understandings of the purpose and socio-political role of monks and monastic land. Second, Buddhist constitutionalism has opened up a space for a critical survey of the tensions generated by constitutional orders (eg, in Sri Lanka) that afford some kind of constitutional protection to Buddhism, but usually in a manner that combines this protection with an uncomfortable articulation of the principles of liberal constitutionalism – such as the defence of religious freedom (including the ability to convert from Buddhism to another religion). In this context, what we see is the mobilization of such constitutional protections by Buddhist interest groups in the name often of a highly fetishized and ossified Buddhism/Buddhist practice. The deleterious impact of this form of Buddhist activist litigation on ethno-religious minorities has been well documented with regard to Sri Lanka; in Burma and Thailand, we have not seen the mobilization of constitutional protections, but rather the mobilization of Buddhist activist groups against Muslims and against the heterodoxy of the Dhammakaya sect in Burma and Thailand respectively.8 This reductive foci of Buddhist constitutionalism presents itself in classically modernist terms – Buddhist activism in defence of Buddhism or of married Buddhist women vis-à-vis the transgressive sexuality posed by Muslim men (a symptom of Buddhist political enjoyment in Burma, Sri Lanka and Thailand), for example, speaks to a disposition that is motivated by ways of seeing the world or concerns that are essentially epistemological. Such concerns motivate at the level of both individual and collective agency what the social and the political ought

5 Schonthal, supra note 3, has set the standard for scholarship on the modern practices of Buddhist constitutionalism in Theravāda Buddhist Asia. 6 While kingship (with the exception of Thailand) is no more, the modern State in the Theravāda world occupies the place of the king in its dealings with the sangha (Schonthal, supra note 3, at 709–13). 7 Nathan J. Brown, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (2002). 8 Schonthal, supra note 3; Matthew Walton and Susan Hayward, Contesting Buddhist Narratives: Democratization, Nationalism and Communal Violence in Myanmar (2014); and James Taylor, Buddhism and Postmodern Imaginings in Thailand: The Religiosity of Urban Space (2008).

186  Constitutions and religion to look like.9 Under the hammer of ethno-Buddhist nationalism (that associates Buddhism with a particular dominant ethnic group) in South and Southeast Asia seeing, ‘which ought to be but one way of being in the world, becomes the supreme, if not the only, way of being in the world’.10 Daniel speaks of something wider than the transformation of being into knowing (ie, the reduction to propositional content), but the logic of nationalism is such that it focuses on organizing the social and the political through legal and political activism in a particular often reductive direction.11 That direction varies depending on which Theravāda jurisdiction one is focused on. In the case of Thailand, for example, Buddhist constitutionalism as a strategy represents the assertion of hierarchical State control – this is the approach that the Thai State has taken since the early twentieth century when, in the shadow of King Chulalongkorn’s modernizing reforms, the first Sangha Act was passed. The result of this Statist approach to the sangha (the collective body of monk-renouncers) has been a restructuring of the relationship between monks and the State in the direction of the centralization of authority in the institutions of the Thai State.12 But in Sri Lanka, one form of Buddhist interest litigation has been directed for opposite purposes – by monasteries to protect their relative independence from the State.13 The modernist turn in Buddhist constitutionalism stands in contrast to the logic of what I characterize as an ontological (concerned with questions of being-in-the-world) disposition that moved the ancient constitution of which kingship was the central axiom on which the cosmologically (dhamma in Pāli) informed distribution of power turned.14 In the Vedic legal world in which the Buddha found himself, the ruler’s (kshatriya’s) power to rule (kshatra) involved protection of his subjects against outside aggression. This gave the ruler privileges vis-à-vis his subjects, such as the power to monitor what they did, punish them if necessary and tax them. These were the ingredients of rājadharma, the judicial power of the king, associated with the dharmaśāstra of Manu. In Manu, the ‘rājadharma’ sections (Chapters 7–9) appear

9 Valentine E Daniel, Charred Lullabies: Chapters in an Anthropology of Violence 43–45 (1996). 10 Valentine E Daniel, The Arrogation of Being: Revisiting the Anthropology of Religion, 33 (1) Hitotsubashi Journal of Social Studies 83–102, 91 (2001). 11 Daniel, supra note 10, at 94. 12 Unlike their European Christian equivalents, there is no evidence to suggest that the sangha in Thailand or elsewhere in Theravāda Asia ever reached the ‘degree of “feudalization” or patrimonialization that made it a parallel estate to the king’s’ (Stanley J. Tambiah, World Conqueror and World Renouncer: A Study of Buddhism and Polity in Thailand against a Historical Background 7 (1976)). See also Schonthal, supra note 3, at 715–17. 13 Ben Schonthal and Tom Ginsburg, Setting an Agenda for the Socio-Legal Study of Contemporary Buddhism, 3 Asian Journal of Law and Society 1–15 (2016); Ben Schonthal, Securing the Sasana Through Law: Buddhist Constitutionalism and Buddhist-interest Litigation in Sri Lanka, 50 Modern Asian Studies 1967–2008 (2016). 14 This was an Indic cosmology that I will expand on below. Dhamma has been described as ‘the natural order of the universe and society as well as one’s duty or ritual obligations within that order’ (Buddhism and Law: An Introduction 4 (Rebecca Redwood French and Mark A. Nathan eds., 2014)). The ‘natural order’ is generally understood as an outcome of its constant maintenance through behaviour, both ritual and social – the ordering consequences of ritual established in the Vedas having been extended to the ordering consequences of social-behavioural norms in the dharmasūtras and śāstras (Patrick Olivelle, Dharmasūtras: The Law Codes of Ancient India xxi (1999)).

Ancient constitutionalism in the Theravāda Buddhist tradition  187 derivative of Kautilīya’s Arthaśāstra, the Sanskrit text on the pragmatics of statecraft and inter-state relations.15 The performative logic or telos of Buddhist kingship was fundamentally ontological; but in the encounter with (colonial) modernity, the logic of Buddhist kingship is reimagined (by anti-colonial nationalists in Sri Lanka in particular) as motivated by ways of seeing the world (and subsequently a prescriptive approach to what the world ought to look like vis-à-vis a host of contentious public policy issues follows). What I suggest here is that Buddhist constitutionalism in its post-colonial rendering in Sri Lanka and Burma (and in the shadow of King Chulalongkorn’s European informed modernization of the Siamese state) must be understood as motivated by similarly reductive concerns that appear to be fundamentally alien to the telos of classical Buddhist kingship.16 By its very nature, the prescriptive reduction of being in the world (of the multiplicity of the ontological) through the nationalist logic of ethnos will render for a narrow vision. The consequence is a thoroughly violent actualization of the ought. Nationalism, by its very nature, generates a prescriptive normative agenda in the socio-political realm by seeking to represent ontological multiplicity through a singular optic vision. What nationalism represents is the triumph of ‘seeing over being’.17 It follows – and this is worth stressing – that Buddhist constitutionalism in its modernist incarnation has as its telos a commitment to thoroughly reshaping the socio-political in a singularly sectarian direction. What was at stake in Buddhist kingship was sīla (virtue). Sīla – one of the three sections of the Eightfold Path – is focused on ethical or wholesome conduct; specifically, rightful action, rightful speech and rightful livelihood.18 Such conduct is most commonly realized by undertaking the Five Precepts, which include refraining from harming living creatures, theft, sexual misconduct, false speech and intoxicants. Unlike Kantian normative ethics (in which right conduct is grounded in the objective, unconditional and necessary principle of reason), the moral discipline associated with śīla is manifest when an individual, having committed to follow a moral code, is actually disposed to follow that code. Sīla is somewhat analogous to Aristotelian virtue or the goals one should aim for in life – for Aristotle, these goals are grounded in eudaimonia (human flourishing).19 Buddhist kingship itself has its mythic origins in a story of transgression, breaching the precept on theft. Theft among the monks persuades the monastic community to appoint ‘one being to criticize whoever should be criticized, accuse whoever should be accused, and banish whoever should be banished’.20 The monks appoint Mahasammata (the Great Elect, who is also an earlier incarnation of the Buddha); and to this king each monk hands over ‘a portion of

15 Wendy Doniger, The Laws of Manu (A new translation, with Brian K. Smith, of the Manavadharmasastra) (1991). Terms such as rājadharma seem to imply a normative (and, perhaps, transcendent) dimension by and large absent from the Arthaśāstra with its practical intent – this text is analogous to the intent of Machiavelli’s The Prince. 16 As a young man, Chulalongkorn travelled to British India and the Dutch East Indies to study the techne of modern colonial administration. 17 Daniel, supra note 10, at 88. 18 The other sections of the Eightfold Path are samādhi (meditation) and paññā (insight). Sīla is the basis of the Buddhist path. 19 Damien Keown, The Nature of Buddhist Ethics (1992). 20 Steve Collins, Nirvana and Other Buddhist Felicities: Uutopias of the Pali Imaginaire 449 (1998).

188  Constitutions and religion rice’,21 securing the means of sustenance in the body of the state. It is a story of the origins of sociality and of property, and will be familiar to readers of Hobbes.22 The ancient constitution that I will speak of later had a contractual structure that signals the origins of a Buddhist political theory of the state in which the state is given primacy.23 Something, however, first needs to be said about the how and what of Buddhist law in general before moving to the core concern here: the contrasting approaches to the relation between the state, Buddhism and difference. Buddhist law evolved for three audiences: sangha, kings and laity. Debates about monastic law in South and Southeast Asia have dominated Buddhist studies ever since Max Weber’s early contribution.24 However, the field of legal scholarship as sub-genre remains rather limited; although in the last 20 years, a number of scholars have contributed to establishing the field of Buddhist legal studies.25 That the extent of the legal scholarship on Buddhism still remains rather limited is down to the popular (rather Orientalist view perpetuated by theosophists and New Ageists) perspective that Buddhism has an ascetic disposition and not one concerned with worldly power. It was rather seen as an otherworldly ‘religion, oriented primarily around self-cultivation, philosophy and the attainment of awakening or Buddhahood’.26 Concomitant to this imaginary was a belief that: Buddhism did not influence the development of state law; the assumption that Buddhism eschewed comprehensive legal codes; and the assumption that Mahayana and Theravāda schools of Buddhism, or various regional forms of Buddhism, were so thoroughly different that one could not productively think about Buddhism and law as a coherent subfield of study.27

This view was totally erroneous – that law or the legal is intrinsic to Buddhism is beyond doubt; Andrew Huxley and Rebecca Redwood-French having written extensively about the nature of the legal in Buddhism (both Theravāda and non-Theravāda).28 One of the three parts of the Pali Canon (Tipiṭaka) was a legal code (the Vinaya) for the sangha (the collective body of Buddhist monks) – a central explanatory myth for the sangha codes is the functioning of one of the so-called Vajji ‘republics’,29 a confederation of oligarchies centred around contemporary northern Bihar.30 The historic Buddha, over a 50-year period of teaching, spoke regularly

Ibid. James Martel, Subverting the Leviathan, Reading Thomas Hobbes as a Radical Democrat (2007). 23 Andrew Huxley, The Buddha and the Social Contract, 24 Journal of Indian Philosophy 421–46 (1996). The Buddhist origin story for kingship seems to reflect a wider Indic model: the first king appears (and kingship is invented) as a response to social disorder. The word for ‘anarchy’ in Sanskrit is usually arājaka (‘the state of having no king’). 24 Max Weber, The Religion of India: The Sociology of Hinduism and Buddhism (1958). 25 French and Nathan eds., supra note 14; Schonthal and Ginsburg, supra note 13, at 1–15; Christian Lammerts, Genres and Jurisdictions: Laws Governing Monastic Inheritance in Seventeenth-Century Burma, in French and Nathan eds., supra note 14, at 183–200; Frank E. Reynolds, Buddhism and Law—Preface, 18 Journal of the International Association of Buddhist Studies 1–6 (1995) and Rebecca Redwood-French, The Golden Yoke: The Legal Cosmology of Buddhist Tibet (1995). 26 Schonthal and Ginsburg, supra note 13, at 3. 27 Ibid., at 3. 28 Huxley 1996, supra note 23, and Redwood-French, supra note 25. 29 Kanai Lal Hazra, The Buddhist Annals and Chronicles of South-East Asia 48–50 (1986). 30 There are three Vinayas: the Chinese language Vinaya, which is primarily used in East Asia; the Pāli Vinaya (the first one that is redacted), primarily used in South and Southeast Asia; and the Tibetan 21 22

Ancient constitutionalism in the Theravāda Buddhist tradition  189 on the ‘correct legal rules for his followers all of which were then collected into a body of work called the Vinaya, the first of the three “baskets”’31 of the Pāli Canon.32 Possibly unique to the founder of a religious tradition, the Buddha is ‘thought to have made regular, detailed decisions on legal matters in a narrative casuistic format covering hundreds of topics’33 over a 50-year period and hence can be regarded as the founding architect of Buddhist law.34 There is an irony in the Buddha’s role as legislator/judge, for he was born at a historical juncture when monarchy and the political order were disintegrating.35 The Pāli Canon (the Cakkavatti Sihanāda Sutta being exemplary of this) suggests that the Buddha did not expect a world sans war.36 While the Buddha at best showed indifference towards Hindu kingship and was critical of the unbridled power of the Brahmins he praised righteous kingship (dhammiko rajadhamma) and Buddhism if it was to survive could not afford the luxury of anarchy.37 The social context of the Pali Vinaya, its rootedness in essentially agrarian societies, also provides insights into how Buddhism developed a corpus of law, including rules about property for lay people.38 In a story from the Digha Nikaya (Collection of Long Discourses), the

Vinaya, which is used in Tibet, Bhutan, Mongolia and some parts of the Himalayas and Central Asia (Rebecca Redwood-French, What is Buddhist Law?, SUNY Buffalo Legal Studies Research Paper, No. 2015–022, p. 18 (2015)). China came to be primarily associated with the Dharmaguptaka Vinaya and Tibet with the Mūlasarvastivāda Vinaya, though this was not always the case. The ‘Pāli’ Vinaya is associated with the Sri Lankan Mahāvihāra sangha, which benefited from the reforms that saw the demise of the Jetavana and Abhayagiri monastic orders in Sri Lanka in the twelfth century. 31 Redwood-French, supra note 30, at 3. 32 The other two ‘baskets’ are the Sutta Pitaka (sermons attributed to the Buddha) and the Abidhamma Pitaka (eg, the higher dhamma/Buddhist philosophy on meditation). This brief detour through the Vinaya draws only on the Pāli version, which was the first one redacted at the Aluvihara monastery in central Sri Lanka in the first century BCE. James Taylor of the University of Adelaide reminded me in a personal correspondence that, as the Buddha noted, just as the sea has a single taste, that of salt, so too the Dhamma and Vinaya have a single taste, that of release (vimutti). 33 Redwood-French, supra note 30, at 3. 34 Andrew Huxley, Is Burmese Law Buddhist?, in Law, Society and Transition in Myanmar 69–70 (Melissa Crouch and Tim Lindsey eds., 2014) provides an insight into the logic of this form of legal reasoning/adjudication. 35 The Buddha was born of the Śakya tribe and carried the personal name of Siddhārtha. The term Śakyamuni means ‘sage of the Śakya tribe’. 36 P.D. Premasiri, A “Righteous War” in Buddhism?, in Buddhism, Conflict and Violence in Modern Sri Lanka 82 (Mahinda Deegalle ed., 2006); and Steve Collins, The Lions’s Roar on the Wheel-Turning King: A Response to Andrew Huxley’s ‘The Buddha and the Social Contract’, 24 Journal of Indian Philosophy 421–46 (1996). The Cakkavatti Sihanāda Sutta (The Lion’s Roar of the Wheel-Turning Emperor) provides an account of how the king administers the cosmic law (dhamma) in a righteous or virtuous (sila) manner before there is a descent into unrighteousness. 37 The Buddhist account of kingship provides some insights into the canonical foundations of an agrarian based polity which had to establish a relation to property (Collins, supra note 36, at 423–34, 442). Echoing Hobbes, wherever there is private property the State (or some entity resembling an organized polity) will be present (Martel, supra note 22). 38 The Vinaya was not an independent legal system, but rather dependent on the (Hindu) dharmaśāstra for some of its jurisprudential needs. Further, it was not a form of customary law in the strict sense, but a wider system of jurisprudence linked to dharmaśāstra principles and precepts (Malcolm Voyce, Foucault, Buddhism and Disciplinary Rules (2017)). Olivelle comments that the Vinaya was informed by the hyper-legalism of the dharmaśāstra, the latter according to recent scholarship, a product of the transformative influence that the institutional Buddhism of the Asokan period had on Vedic thought, and in particular the appropriation of dharma for a Buddhist political ethics (Patrick

190  Constitutions and religion transformation of immaterial beings into material and embodied subjects involved ‘the gradual growth of society through the arising of agriculture and food storage, sexuality and private property’.39 The farmers needed a legal framework for the purpose of commerce. The Pali Vinaya fed itself into the functional requirements of a region dominated by irrigated paddy cultivation, monks acting as the gatekeepers of the Pali Vinaya, playing a pivotal role in the evolution of Buddhist law.40 The Pali texts that appeared in Southeast Asia served as a ‘discursive textual world available to the [...] agrarian societies of [...] Asia’.41 While the region is replete with legal texts, some more Buddhist than others, it was a group of texts that were circulating in twelfth century Pagan that constituted the common ancestor for Buddhist law in Southeast Asia.42 Consequently we witness the birth of a rich body of Buddhist law, both dhammathats and rajathats that reveal the influence of the Buddhadhamma.43 Rajathats placed kings at the centre of the evolution of Buddhist law.44 However, from its inception, Buddhism developed an account of kingship (and the state) in which this-worldly righteousness became a central purpose of kingship; this, however, may not have been the Buddha’s intention. The motivation of kingship was inscribed in an Indic cosmological order (of which I will say more below), and this gave way to a highly sophisticated form of Olivelle, Dharmasastra: A Textual History, in Hinduism and Law: An Introduction 31–32, 37 (Timothy Lubin, Donald R. Davis Jr., and Jayanth K. Krishnan eds., 2010)). 39 Collins, supra note 20, at 448. The Digha Nikaya is composed of the Sutta Pitaka. In the 27th Sutta of the Digha Nikaya, the Aggañña Sutta (The Discourse on what is Primary) we are presented with the Buddha’s account of the origins of sociality and the state (Steve Collins, The Discourse on What is Primary: An Annotated Translation, 21 Journal of Indian Philosophy 301–93 (1993)). 40 Andrew Huxley, Buddhist Law as a System of Religious Law, in Religion, Law and Tradition: Comparative Studies in Religious Law 142 (Andrew Huxley ed., 2002). Aroonrut Wichienkeeo, Lanna Customary Law, in Thai Law: Buddhist Law; Essays on the Legal History of Thailand, Laos and Burma 31–42 (Andrew Huxley ed., 1996) observes that the legal literature from the Lanna Kingdom, in northern Thailand, reveals a haphazard Pali Vinaya influence on much of the corpus of secular law affecting lay people from the fourteenth century to the nineteenth century. 41 Collins, supra note 20, at 18. Adamson E. Hoebel, The Law of Primitive Man 291 (1954) and more recently Katherine Newman, Law and Economic Organization 187 (1983) have suggested that ‘irrigated rice growers are more legalistic than wheat or maize farmers’ (Andrew Huxley, Buddhism and Law – The View From Mandalay, 18 Journal of the International Association of Buddhist Studies 49 (1995)) – the construction of dams and reservoirs for the purpose of wet rice cultivation and the regulation of access to these resources necessitated legal codes as kinship and caste were inadequate to the task. 42 Mayoury Ngaosyvathn, An Introduction to the Laws of Khun Norom: An Early Prototype of the Organization of T’ai Society and Life, in Huxley 1996 ed., supra note 40, at 73–80, Andrew Huxley, Studying Theravada Legal Literature, 20 Journal of the International Association of Buddhist Studies 63–91 (1997) and Huxley 1995, supra note 41, at 50. 43 Huxley 2002, supra note 40, at 141–43. Dhammathats were a body of written law that was structured around 18 categories (both civil and criminal matters); their origins are very much in the Burmese Buddhist tradition (Melissa Crouch, The Layers of Legal Development in Myanmar, in Crouch and Lindsey eds., supra note 34, at 34–35). It is not uncommon in contemporary Burmese courts to invoke dhammathats with reference to family and inheritance law. Rajathats (which as royal edicts carry the imprimatur of state law) focus on matters that fall within the purview of the state (eg, which include both civil and criminal matters such as breach of trust and highway robbery) and can take the form of ‘a sermon, a set of rules, or a discussion of constitutional points’ (Huxley 2014, supra note 34, at 60). While these were Burmese Buddhist legal forms, they would inform Buddhist legal forms in the rest of Southeast Asia (Huxley 1995, supra note 41, at 49–50). 44 Huxley 2014, supra note 34, at 70–71.

Ancient constitutionalism in the Theravāda Buddhist tradition  191 decentralized government in which kingship was the articulating principle, but kings were not absolute monarchs. Instead, they were largely dependent on the bureaucratic and administrative retinue beneath them – a retinue that often included officers from the royal household.45 The nature of the state that emerged was unique to both mainland and peninsula South and Southeast Asia, where Hindu-Buddhist thought about politico-legal organization held sway for much of the period prior to the trade winds that brought Islam and later European colonialism to the region.46 Any discussion of the manner in which Buddhism was mediated by the state logically flows into an elaboration of the manner in which non-Buddhists were incorporated (to lesser or greater degrees) in the vast Indic inspired Buddhist polities that emerged in Asia. The pioneering scholarship of Stanley Tambiah, H.L. Seneviratne and Victor Lieberman on the history of state formation in Thailand, Sri Lanka and Burma respectively was not intended to set scholarly standards on how these respective polities mediated not just Buddhism, but also other non-Buddhist traditions. However, an inevitable aspect of their scholarship was that in presenting a sophisticated historical anthropology of state formation in South and Southeast Asia, the issue of the relation between the state, Buddhism and cosmology came to the fore.47 Their scholarship (particularly that of Tambiah and Lieberman) focuses on the centricity of cosmology as an ideational frame such that the ‘center ideologically represents the totality and embodies the unity of the whole’48 in the actualization of the polity, its institutions and its daily administrative processes. It was a feature of the ancient constitution that the sacred could not be distinguished from the profane domain ‘and that the cosmological, religious, political, economic dimensions’49 of the polity could not be disaggregated. The polity that Buddhist kingship forged was one that conjoined the guardians of the dhamma in the form of the sangha with ‘a socio-political order of which kingship was the articulating principle’.50 The result was a contested vision for: how kings and monks ought to relate to (or regulate) each other: kings ought to regulate the purity of monks; monks ought to regulate the power of kings; kings and monks ought to exist in a perfect reciprocity of power.51

Schonthal suggests a fourth type of relationship between kings and monks: ‘a tense co-dependence or antagonistic symbiosis.’52 There is evidence to suggest all four existed.53 45 Stanley J. Tambiah, The Galactic Polity in Southeast Asia, 3 HAU: Journal of Ethnographic Theory 521–23 (2013). 46 Even during the colonial period, as in the case of Sri Lanka, Theravāda Buddhist concepts of political and social organization survived, if in a rather transformed register reflecting the intellectual force of European modernism and ideas of government (Anthony Reid, Southeast Asia in the Age of Commerce, 1450–1680: The Lands Below the Winds (1990); Charles Hallisey, Roads Taken and not Taken in the Study of Theravada Buddhism, in Curators of the Buddha 47–49 (Donald Lopez ed., 1995); Roshan de Silva-Wijeyeratne, Nation, Constitutionalism and Buddhism in Sri Lanka 78–100 (2014)). 47 Tambiah, supra note 12; H.L. Seneviratne, Rituals of the Kandyan State (1978), and Victor Lieberman, Burmese Administrative Cycles: Anarchy and Conquest, c. 1580–1760 (1984). 48 Tambiah, supra note 45, at 514. 49 Tambiah, supra note 45, at 508. 50 Tambiah, supra note 12, at 5. 51 Schonthal, supra note 3, at 709. 52 Schonthal, supra note 3, at 709. 53 Schonthal, supra note 3, at 709–13.

192  Constitutions and religion But critically for my purpose here, it is in this relationship that we can trace the origins of a contractual model of kingship and the possible foundation of an ancient constitution that precedes the modernist colonial turn. It is this modernist turn (with its prescriptive logic) that goes onto inform how Buddhist actors invoke constitutional protections either against other minority religious communities or outside actors such as non-governmental organizations in the post-colonial period – this prescriptive approach to Buddhist interest activism has become the norm in Sri Lanka and in Burma as well, although in the case of the latter this has taken a potentially genocidal turn against the Rohingya Muslim community.54 My argument proceeds by avoiding a narrow definition of Buddhist constitutionalism and expands the horizon here to explore the manner in which Buddhist kingship in the pre-colonial Buddhist polity was limited by dhamma, the law of the cosmos – this focus is consistent with a broad definition of contemporary constitutionalism, the manner in which the state is limited by law. This offers somewhat of a counterpoint to the dominant trend in the contemporary (path-breaking) scholarship on Buddhist constitutionalism – one that has focused on the processes of ‘drafting and adjudicating constitutional law’.55 This refers to the practices by which Buddhism as religion has been constitutionalized by foundational legal texts, either as a formal State religion or as a privileged religion of the majority, positions that sit somewhat uncomfortably with liberal constitutional guarantees to religious equality, and so on.56 The Walton & Hayward, supra note 8, at 17–20. Schonthal, supra note 13, at 1967. Schonthal & Ginsburg, supra note 13, at 1–15, provide a summary of contemporary trends in Buddhist legal scholarship. 56 A definitional problem needs to be addressed before proceeding. Many scholars of Buddhism have pointed out that the term ‘Buddhism’ is an Oriental­ist concept. Gananath Obeyesekere, The Vicissitudes of the Sinhala-Buddhist Identity through Time and Change, in Collective Identities Revisited 355 (Michael Roberts ed., vol. I, 1997) speaking of Sri Lanka, observes that in contemporary Sinhala usage, the ‘term for Buddhism is Buddhāgama, the āgama (“religion”) of the Buddha. In general, when a Sinhalese wants to refer to their religion, they will say “mama Buddhāgama”, “I belong to the religion of the Buddha”’. John Ross Carter makes a critical point about how scholars working on Sri Lanka should approach the category ‘Buddhism’ (John Ross Carter, A History of Early Buddhism, 13 Religious Studies 263–87 (1977); John Ross Carter, On Understanding Buddhists: Essays on the Theravada tradition in Sri Lanka 18–21 (1993)). Neither Sinhala nor Pāli, the languages of the Sinhalese Buddhist tradition, had ‘words representing the concepts “religion” and “Buddhism”’ (David Scott, Refashioning Futures: Criticism after Postcoloniality 56 (1999)). Indeed, ‘religion’ was a thoroughly modern idea emerging in the tumult of the Enlightenment (Peter Harrison, ‘Religion’ and the Religions in the English Enlightenment (1990)). Āgama, Carter 1993, supra in this note, at 17, observes, was a Pāli word for coming, approach or arrival, but also signalled a corpus of authoritative texts. The transformation – or rather reduction – in the meaning of āgama to ‘religion’ was a product of the encounter with Protestant missionaries in mid-nineteenth century Sri Lanka. By the late nineteenth century, Buddhāgama was being used as a term of self-reference in Sri Lanka by Sinhalese Buddhists (Kitsiri Malalgoda, Concepts and Confrontations: A Case Study of Agama, in Roberts ed., supra in this note, at 55–77). Similarly, in Thailand, it is also possible to say in response to an inquiry about religious affiliation, ‘Chan nap thue sasana phut’ (‘I am a Buddhist’). But, here sāsana corresponds more generally to the entire material and doctrinal dispensation of the Buddha (Alicia Marie Turner, Saving Buddhism: The Impermanence of Religion in Colonial Burma (2014)). It is worth speculating that the contemporary concerns of Buddhist constitutionalism, in Sri Lanka in particular, are also reflective of this reduction in meaning of āgama to ‘religion’, a post-Enlightenment phenomenon. Ironically Theravāda Buddhism did take on a Protestant rationalist persona, particularly in Sri Lanka, through the encounter with Protestant missionaries. Weber would have recognized this Protestant turn as a set of modernist Buddhist norms consistent with a capitalist ethic (R. Gombrich and G. Obeyesekere, Buddhism Transformed: Religious Change in Sri Lanka (1988)). 54 55

Ancient constitutionalism in the Theravāda Buddhist tradition  193 provisions on equality are usually empty gestures, but serve as necessary markers of constitutional maturity with respect to Western liberal human rights advocates. In the contemporary moment throughout Theravāda Asia, ‘Buddhist monks and interest groups play influential roles in creating and applying contemporary constitutional law; and Buddhist ideas and institutions figure prominently as topics of constitutional negotiation’.57 Contemporary Buddhist constitutionalism then speaks to a prescriptive understanding of the lifeworld espoused by Buddhists – one that focuses on what the social ought to look like. It is thoroughly prescriptive in its policy ends in a way that the pre-modern concern with the dhamma was not. Indeed if the pre-modern understanding of Buddhism and its intellectual disposition was one directed at questions of being-in-the-world (ontological concerns) that the dhamma as cosmological law addressed, then Buddhism in its colonial/post-colonial and modernist guise has reoriented its concerns to matters that are fundamentally normative in nature – and the latter is perfectly evident in the Buddhist interest litigation and activism that has become a core and defining aspect of contemporary Buddhist constitutionalism and political agency in South and Southeast Asia. In the next section I elaborate on cosmological sovereignty as the axis of Buddhist state/ political theory. It is through cosmological sovereignty that the dhamma manifests its totalizing logic – one that informs at an ontological level the telos of kingship. This is a vital step if we are to understand how Theravāda Buddhism facilitated a state model that negotiated religious difference in a manner that stands radically apart to how contemporary majority Theravāda Buddhist jurisdictions do – indeed, what we see in modern Theravāda jurisdictions is hardly a negotiation, but rather a violent negation of ethno-religious difference.

2.

COSMOLOGICAL SOVEREIGNTY

In Theravāda Asia kingship had a paradoxical purpose: worldly action was merely for the purpose of the ‘other world’, the world that transcends materiality, the path to nibbāna; the ends of kingship was always nibbāna, that moment of release from the order of present time.58 Contra Western rationalist interpretive approaches (which disaggregate religion, politics, economy and law), Buddhism, as Tambiah reminds us, is a ‘single interpenetrating totality’.59 It is only in such terms that we can recover something of Buddhism’s ‘con-tours and relations’.60 Drawing on Mauss,61 Tambiah suggests that Buddhism as, for example, presented in two suttas, the Aggañña Sutta (The Discourse on What is Primary) and the Cakkavatti Sihanāda Sutta, manifests itself as a total social fact.62 By this, the suttas provide an account of the: Schonthal, supra note 3, at 707. Collins, supra note 20, at 256. 59 Tambiah, supra note 45, at 508. Tambiah, supra note 12, at 54–131, in his seminal account of the genealogy of the mandala state in Thailand, traces the genealogy of the mandala to the Asokan Empire in conjunction with a significant borrowing of the administrative and ritual forms of the Khmer polity. 60 Tambiah, supra note 45, at 508. 61 Marcel Mauss, The Gift: The Form and Reason for Exchange in Archaic Societies (trans. W.D. Halls) (1990). 62 The Cakkavatti Sihanāda Sutta tells us that ‘enemy kings become client kings’ (Collins, supra note 36, at 429). ‘Cakkavatti’ signifies the wheel-turning, encompassing logic of Buddhist kingship. 57 58

194  Constitutions and religion relation between bhikkhu and king (who encompasses and includes the householder), between the Buddha and the Cakkavatti [...] as the two wheels of the dhamma, between the sangha and the polity and society in which it is located, between this-worldly and other-worldly pursuits.63

Economy (property), polity, religion, law can only be understood and interpreted as a total social phenomenon in the Maussian sense – there is no space for disaggregation between these elements; each is an intrinsic part of the whole, each one interconnected. In the Aggañña Sutta, Mahāsammata establishes order out of a fragmenting temporal world order.64 What Rhys Davids called A Book of Genesis presents a contractual account of the origins of kingship, the polity and the social. The initial phase of Buddhist kingship is semi-contractual.65 The text notes the paddy farmers get together to agree a set of ‘rules on ownership, theft, and inheritance’.66 The rules, however, carry with them no sanctions – reflective of the suspicion that both the Buddha and early Buddhists had towards the state (ānā) and its organizational capacity.67 We are thus presented with a weak contractual model – in the event of a breach – thereby leaving it up to Mahasammata to wield danda, the rod of punishment, a feature of Hindu kingship.68 Suspicion towards the state generates what is a significant difference between Hindu and Buddhist kingship. The Hindu mode of the cakravartī ruler stands in contrast to the Buddhist ideal of the cakkavatti, who ruled according to the dhamma; the cakravartī rulers of the South Indian polities, for example, ruled with the force of danda (the stick) in the manner of a divine supreme overlord or sovereign (rājādhirāja).69 The claims of Buddhist kingship are totalizing, drawing on the cosmological order centred on Mount Meru, the abode of the Hindu gods. Mount Meru func­tions as a source of cosmic stability, and is ‘explicitly likened to the throne and power of the chakravartin’.70 It is through Tambiah, supra note 12, at 16. The Buddha is revealed in Mahāsammata, who as an earlier incarnation of the Buddha radiates the aura of the Mahāpurisā, the Buddha being Mahāpurisā incarnate. 65 B.G. Gokhale, The Early Buddhist View of the State, 89 Journal of the American Oriental Society 731–38 (1969). The prelude to his arrival is an increasingly fragmented cosmological/state order. Out of disorder arrives Mahāsammata, whose reordering of the cosmos is a ‘constitutive act of social creation’ (Bruce Kapferer, Legends of People, Myths of State: Violence, Intolerance and Political Culture in Sri Lanka and Australia 14 (1998)). 66 Huxley 1996, supra note 23, at 416. 67 Collins, supra note 20, at 18. 68 Collins, supra note 20, at 450–76, and Huxley 1996, supra note 23, at 406–20 discuss in detail the paradoxical relation between kingship, violence and dhamma. 69 John Holt, Hindu Influences on Medieval Sri Lankan Buddhist Culture, in Deegalle ed., supra note 36, at 46; S. Pathmanathan, Kingship in Sri Lanka: A.D. 1070–1270, 8 Sri Lanka Journal of the Humanities 120–45 (1982). 70 Paul Mus, Thousand-armed Kannon: A Mystery of a Problem, 12 Journal of Indian and Buddhist Studies 1–33 (1964). The cosmological (or sacred) functioned as the central axis mundi of these centre-oriented mandala States. Throughout Indic South and Southeast Asia, Mount Meru was imagined to be at ‘the centre of the universe [and] thought to be the axis mundi joining heaven and earth’ (James Duncan, The City as Text: The Politics of Landscape Interpretation in the Kandyan Kingdom 47 (1990)) – a point of origin for the universe. Its creative energy is ‘reinforced by the myth of Mount Meru rising out of the center of a lotus, itself a symbol of creation linked to water and earth’ (Duncan, supra in this note, at 47). This cosmic order was highly labile, the creative and generative potency of water merely being one aspect of an order that for example cleansed future god-kings and guaranteed a fertile kingdom in the realm of the material world – we must remember that the irrigated paddy based polities of Southeast Asia were located at ‘strategic coastal points or on river mouths [and 63 64

Ancient constitutionalism in the Theravāda Buddhist tradition  195 the cakkavatti that the dhamma, in all its encompassing glory, sets in motion the order of signification in the socio-political order. Here, the values of holism are those of ‘religio-cosmic encompassment, which places knowledge and reason (dharma) in the dominant relation to political power’71 or attha.72 The result of this encompassing relation between the universal claims of the dhamma and its totalizing application by the king was the generation of a certain tension between the dhamma and the political. The totalizing impact of the dhamma helped develop in theory the ‘principle of nonviolence (ahimsa), noninjury, and compassion (karuna)’73 in the affairs of state. In practice, the ideal often collided with the practical affairs of state, for even cakkavatti kings who ruled according to the dhamma ideally maintained a standing army.74 Such was the nature of this tension that it generated a crisis of anxiety among the righteous rulers of the Buddhist polities in South and Southeast Asia, which usually resolved itself by the ‘renunciation of violence after completing conquest and empire building’75 by building monuments (dagobas) that housed relics of the Buddha – relics were an immanent representation of the Buddha in the here and now.76 Buddhist historiography framed real violence in terms of a clash between the righteous and the unrighteous – a clash ontologi­cally grounded in the cosmic order, with righteousness immanent in the descent to unrighteousness of which Asokan Buddhist kingship becomes exemplary. Any discussion of the mandala state as the core organizational form of the ancient constitution starts with the Mauryan Empire. In intent, the Mauryan Empire was centralizing, as it sought to bring the outer reaches of this enterprise within the orbit of its capital, Pātaliputra – the height of this Empire’s expanse was in the third to second century BCE. Buddhism functioned as a form of symbolic capital that at the most elemental level unified this vast territory.77 For example, Pillar Edict One tells were] [...] importantly related to the impact of an explosive expansion of trade at the beginning of the Christian era’ (Tambiah, supra note 45, at 522, my interpolation). Consistent with the cosmic order’s hierarchical dynamic, the flow of water is downwards ‘from the heavens down onto the cosmic mountain at the center of the earth’ (Duncan, supra in this note, at 45). In accordance with the cyclical nature of the karmic economy, water ‘flows back into the cosmic Ocean of Milk from whence it came’ (Duncan, supra in this note, at 45–6), the ocean being a symbolic representation of the ‘endless cycle of the creation and destruc­tion of the world’ (Duncan, supra in this note, at 44). 71 Kapferer, supra note 65, at 11. 72 The Pāli transliteration of attha (in Sanskrit it is artha) signals an ‘interest, advantage, gain, good, blessing, welfare, profit, prosperity, well-being, riches and wealth’ (Gokhale, supra note 65, at 732). Gokhale continues that there seem to be two distinct phases in the development of its usage – ‘[i]n the first phase it was used generally to mean something that is vital and desirable both in this world and the next. In the second phase its use was more or less related to affairs of this world, especially of organized society, and came close to the Sanskrit technical term artha which [Kautilīya’s Arthāsastra] describes as vārtā (economy) [...]’ (Gokhale, supra note 65, at 732, my interpolation). 73 Tambiah, supra note 12, at 42. 74 Premasiri, supra note 36, at 82–3. 75 Tambiah, supra note 12, at 42. 76 Stanley J. Tambiah, The Charisma of Saints and the Cult of Relics, Amulets and Tomb Shrines, in Radical Egalitarianism: Local Realities, Global Relations 15–50 (Felicity Aulino, Miriam Goheen, and Stanley J. Tambiah eds., 2013); Tambiah, supra note 12, at 54–72; and Frank Reynolds, The Two Wheels of Dhamma: A Study of Early Buddhism, in The Two Wheels of Dhamma: Essays on the Theravada Tradition in India and Ceylon 6–30 (Gananath Obeyekere, Frank Reynolds, and Bardwell Smith eds., 1972). 77 Tambiah, supra note 12, at 60–3. Ian Mabbett, Truth, Myth, and Politics in Ancient India (1971) also suggests that the Mauryan Empire was not an organized state.

196  Constitutions and religion us that the practices of the state were to be informed by the dhamma and Pillar Edict Seven tells us that Asoka appointed special officials (Dhammamahamatras – dhamma ministers) to take the dhamma to as much of the population as possible.78 There can be little doubt that collectively these processes unified disparate political entities, bringing smaller tributary polities and diverse religious sects within the orbit of the centre – at least as far as the register of cosmological sovereignty was concerned.79 In practice, however, the Asokan Empire was a mandala state and subsequent mandala states throughout Southeast Asia were also characterized by a non-centralizing logic, the authority of kingship diminishing ‘with distance from the capital’.80

3. THE MANDALA AND DIFFERENCE The Mauryan Empire, like most empires, was geographically decentralized. The Mauryan Empire was: divided into four provinces with their four capitals, surrounded [...] at the borders by autonomous States and capped by the Emperor in his capital Pātaliputra, whose hosts of officials appointed by and directly responsible to him held the enterprise on a tight rein.81

It was modelled on a mandala having ‘central royal domains surrounded by satellite principalities and provinces replicating the center on a smaller scale’, while at the margin there were ‘even more autonomous tributary principalities’.82 This vast territorial enterprise took on a ‘galaxy-type structure with lesser political replicas revolving around the central entity and in perpetual motion of fission or incorporation’83 – they were pulsating and replicating geographical forms moving in a somewhat asymmetrical manner between centralizing and devolutionary moments.84 These movements were analogous to the motion of the cosmic order itself and hence it is appropriate to speak of cosmological sovereignty as a labile form that allowed for the organization of power in a manner that refused to be grounded at a fixed point of anchoring – in contemporary constitutional theory it suggests a model of state that was non-monistic.

U.N. Ghoshal, A History of Indian Political Ideas 69 (1959). Romila Thapar, Asoka and the Decline of the Mauryas 144–5 (1961). 80 Lieberman, supra note 47, at 64. Ronald Inden, Imagining India 230, 238 (1990) and Tambiah, supra note 12, at 54–72, 102–31. 81 Tambiah, supra note 12, at 70. Asoka’s rock inscriptions convey the impression that his Imperial state was a centralized empire (Tambiah, supra note 12, at 26–31). 82 S.J. Tambiah, Buddhism Betrayed? Religion, Politics, and Violence in Sri Lanka 173 (1992). 83 Tambiah, supra note 12, at 70. 84 The Pāli Vinaya ‘suggest that the political systems of at least eastern India [which incorporated its capital Pātaliputra] during the time of early Buddhism were constituted on galactic lines’ (Tambiah, supra note 12, at 70–1, my interpolation; see also G.S.P. Misra, The Age of the Vinaya 211–19 (1972)). 78 79

Ancient constitutionalism in the Theravāda Buddhist tradition  197 It was in the rice irrigation based societies and riverine polities of South and Southeast Asia that the mandala evolved into its most complex design.85 Wolters86 has argued that while the derivation of the mandala in Southeast Asia is Indic, its genealogy is much older and indigenous, going back prior to the period when Hindu aesthetics and ideas about the nature of political power started to impact on Southeast Asia.87 As Martin Stewart-Fox observes, the model of the mandala is discernible to the ‘earliest formation of centers of political power in mainland Southeast Asia’.88 Unique to the design of the ancient constitution was the Indic concept of the circle of kings, which conveyed an image of dynamic multiple centres, ‘each striving to serve as an expanding focus of power’.89 As Clifford Geertz’s90 account of the nineteenth century Balinese theatre state reminds us, the ceremonial, ritual and symbolic aspects of the state were crucial for the legitimation of hierarchy and status. Stuart-Fox observes that the actualization of power as command in these polities did not manifest ‘from coercive force, but from popular recognition of privileged access to divine potency’.91 It was a potency that radiated outwards, drawing in the periphery and the semi-periphery of the mandala states into the orbit of the centre.92 The symbolic order of Buddhist sovereignty, while centralizing in intent, lent itself to a galactic polity that was in terms of the distribution of power devolved in structure and process. At its core, the mandala was a galactic centre-oriented space as opposed to a bounded space. Territory as variable space, ‘control over which diminished as royal power radiated from a center’,93 is key to the definition of the Buddhist polity as a: mandala composed of concentric circles, usually three in number. This concentric circle system representing center-periphery relations were ordered thus: in the center there was the king’s capital and the region of its direct control, which was surrounded by a circle of ‘provinces’ ruled by princes or ‘governors’ appointed by the king, and these again were surrounded by tributary polities more or less independent.94

Given the devolved nature of power in the galactic model of polity, the cakkavatti’s role as an overarching sovereign was limited. Kings in exercising their dhammarājā or judicial power did not have the capacity to legislate autonomously; kings had to be mindful of the royal retinue and governors who exercised authority in the semi-peripheral and peripheral provinces 85 Paul Wheatley, The Pivot of the Four Quarters (1971); Robert Heine-Geldern, Conceptions of State and Kingship in Southeast Asia, 2 Far Eastern Quarterly 15–30 (1942). 86 O.M. Wolters, History, Culture and Region in Southeast Asian Perspective 12–13 (1982). 87 J.M. Gullick, Indigenous Political Systems of Western Malaya (1958). 88 Stuart-Fox, supra note 4, at 136. Charles Higham, The Archeology of Mainland Southeast Asia: From 10,000 BC to the Fall of Angkor (1989). 89 Stuart-Fox, supra note 4, at 136. 90 Geertz, Clifford, Negara: The Theatre State in Nineteenth Century Bali (1980). 91 Stuart-Fox, supra note 4, at 136. 92 Victor Lieberman, Burmese Administrative Cycles: Anarchy and Conquest, c. 1580–1760 227 (1984). 93 Tambiah, supra note 45, at 509. 94 Tambiah, supra note 45, at 509. In the case of the Thai kingdom of Ayutthaya in the sixteenth century, at its outer boundary it had to contend with independent polities such as the ‘northern kingdoms of Chiangmai, Chiangsaen, Phrae, and Nan, and the peninsular Malay states of Johore and Malacca’ (Tambiah, supra note 45, at 513). See Stuart-Fox, supra note 4, at 136, and O.M. Wolters, Ayudhya and the Rearward Part of the World 166–78 (1968).

198  Constitutions and religion of these mandala states. Herein lay the paradox of Buddhist kingship – grandiose claims to central control over the machinery of the state in the provinces (which were performatively enacted in rituals of sovereignty) were undone in the logic of patron-clientalism that motivated the placing of office holders in the provinces.95 This asymmetrical movement between the centre, semi-periphery and periphery of these mandala states did not hinder the development of a sophisticated administrative system that mirrored and replicated the devolved structure of the mandala state. What is consolidated in the mandala states of South and Southeast Asia is a highly bureaucratized system of administrative devolution – which in the case of the Kandyan Kingdom and Ayutthaya had evolved over many centuries. What is encountered with this model of galactic decentralization – the dissemination of royal authority to the periphery and semi-periphery – is the paradox of centralization in the periphery. The king was the galactic sovereign par excellence, himself encompassed by the provincial bureaucracy, the galactic centre turning into the galactic margin. Such was the multi-centric nature of the mandala states that it was the king who, in the absence of a developed monetary economy, remained dependent on the loyalty of his patron-clients in the provinces, which as the archive suggests was always uncertain.96 More powerfully, given that dhamma manifests its totalizing logic in and through the ontological telos of kingship – nibbāna – it follows that for cosmological sovereignty to reveal its performative force in the temporal order of the mandala state, the latter must dramatize the cosmos in the architectural/aesthetic and ritual order of the state.97 The rituals of state by which kingship revealed its all-encompassing logic also share in common an ontological ground that is structured by the hierarchical metaphors of the cosmic order – such rituals also refracted the spatial division of the cosmic order within the order of ritual itself.98 Hence, for example, the performative force of cosmological sovereignty in the Thai kingdom of Ayutthaya or the Sinhalese Kandyan Kingdom revealed its fractured and labile nature through forms of tributary over-lordship that were highly ritualized, the latter masking the fact that only on sporadic occasions did the centre exert territorial control over the margin of these mandala states.99 In substance, cosmic sovereignty generated a highly decentralized state model with myriad forms of power distribution and administrative replication as between the centre, the semi-periphery and the periphery of the mandala states of Southeast Asia and Sri Lanka.100

95 The telos of kingship becomes a technical question about the manner in which the dhamma subsumes attha in the form of dhammiko dhammarājā, righteous rule by the king. So it is that Buddhist king­ship qua the state becomes the ‘antithesis of anarchy and the apotheosis of dhamma’ (B.G. Gokhale, Dhammiko Dhammaraja: A Study in Buddhist Constitutional Concepts, in Indica: The Indian Historical Research Institute Silver Jubilee Commemoration Volume 162 (1953)). 96 With respect to the material vulnerability of the royal centre of these galactic polities, Tambiah notes that the ‘rice-growing, land-based sector of the economy could support an administrative system of replicated courts and redundant retinues, and could at special times provide massive labor pools and armies for brief periods of time, but could not put directly in the hands of the center large economic resources which it could disburse and manipulate and thereby control the recipients’ (Tambiah, supra note 45, at 521). 97 Duncan, supra note 70, at 19–20. 98 Michael Roberts, Sinhala Consciousness in the Kandyan Period, 1590s to 1815 61 (2004) and de Silva-Wijeyeratne, supra note 46, at 59, 69. 99 C.R. de Silva, Sri Lanka in the Early 16th Century: Political Conditions, in History of Sri Lanka 11 (K.M. de Silva ed., vol. II, 1995); Roberts, supra note 98, at 60; Tambiah, supra note 45, at 511–15. 100 F.W. Riggs, The Modernization of a Bureaucratic Polity. East-West Center Press (1967).

Ancient constitutionalism in the Theravāda Buddhist tradition  199 In pre-British Sri Lanka, such devolutionary dynamics extended to the use of non-Kandyans (Muslims and Sinhalese from the Low Country) in specialist roles within the Kandyan administration.101 It was the very galactic structure of the Kandyan polity that enabled the ‘Sinhalization and Buddhicization of south Indian’102 migrant groups, as well as facilitating their incorporation into the politico-administrative structure of the polity – an organic process that stands in sharp contrast to Buddhist-Muslim relations in post-independent Burma, but one that echoes with the incorporation of earlier Muslim migrants from Persia in the ninth century and later from Yunnan who settled and were incorporated as part of the king’s retinue in the galactic polity centred on Pagan.103 While the management of religious difference under the logic of the ancient constitution would be anathema to the normative order of Western liberalism as manifest in constitutional provisions on religious equality and freedom of practice, I have not suggested that the past was the same as the present as far as the mediation of religious difference was concerned. Their respective concerns were different – as I indicated at the start, the distribution of power that the ancient constitution ordained was oriented by ontological concerns in which the law of karma was integral, but the focus of modern or post-colonial constitutions in Sri Lanka and Southeast Asia and their attendant religion clauses is oriented by more mundane (but potentially socially disruptive) concerns – here the telos of the regulation of religious life (in a manner that is either enabling or disabling) is ‘similar to the way in which it orders political, familial, and economic life’.104 Its logic is purely prescriptive.

4.

EPISTEMOLOGICAL VIOLENCE AND THE CONSTITUTIONALIZING OF BUDDHISM

I started with reference to Schonthal’s central point that the contested dilemma of Buddhist constitutionalism’s origins (the conflictual but symbiotic relationship between monks and kings) has a long history.105 This had implications for how Buddhism managed its others. The pre-colonial history of Theravāda Buddhism suggests that the hazy and shifting nature of territorial boundaries intrinsic to the mandala states that emerged in Sri Lanka and Southeast Asia was the vehicle through which the ancient constitution was able to administer the divergent political formations of the margins of these segmentary polities.106 Asymmetrical devolution (built on a concentric reproduction of administrative structures and institutions on an ever-decreasing level from the centre) was a feature of the mandala states in the region, and enabled the hierarchical incorporation and sometimes organic transformation of non-Buddhist others – Hindus, Muslims and animists.107 H. Tambiah and M. Markhani, Muslim Law in Sri Lanka 6 (1996). Tambiah, supra note 82, at 175. 103 Sayyid Qudratullah Fatimi, The Role of China in the Spread of Islam in South-East Asia (Thesis) (1961). 104 Schonthal, supra note 13, at 1970. 105 Schonthal, supra note 3, at 709. 106 Sunait Chutintaranond, Mandala, Segmentary State and Politics of Centralization in Medieval Ayudhya, 78 Journal of the Siam Society 91–92 (1990). 107 The decentralization that characterized the ancient constitution is arguably analogous at the level of form to the normative order of ‘plurinationalism’ as a constitutional model of contemporary 101 102

200  Constitutions and religion This fluid model of shifting jurisdictional authority (not just with regard to the relation between the sangha and kings, but also with regard to the accommodation of religious others) was not a form of the social that could be sustained as European colonial rule transformed South and Southeast Asia. The consolidation of territorial control by European powers in South and Southeast Asia necessitated a degree of uniformity in the application of colonial law as prescriptive or positivist rules ‘applicable evenly to all citizens living within a country’s newly solidified territorial boundaries’.108 Britain consolidated control over Sri Lanka and unified the island in 1815 when the last Kandyan monarch, Śrī Vikrama Rājasinha, was deposed and sent into exile.109 A key area that the British colonial State in Sri Lanka had to intervene in was in the fashioning of its relationship with the sangha.110 The colonial State was initially intimately involved with Buddhist rites, including the rituals of kingship; but in the wake of the Colebrooke-Cameron Reforms of 1832 (henceforth the ‘Reforms’), the State gradually disengaged from Buddhist affairs, allowing a thoroughly plural and decentralized sangha to consolidate itself.111 In the pre-colonial period, Buddhist texts and chronicles and conceptions of kingship grounded in Asokan principles spoke to a karmic understanding of the political – the telos of the texts or rites of kingship were ontological in that they were related to the question of what it is to be. However, consequent to the utilitarian logic of British colonial policy, which the Reforms significantly consolidated, these texts and rites began to be read as outlining how the social and the political ought to be organized in the future – ways of seeing the world.112 This is synonymous to an epistemological break or a variation in the order of knowledge – one related specifically to the context of Sinhalese Buddhist nationalist mobilization in the twentieth century and after which has had a significant impact on the way non-Buddhist minorities are imagined in Sri Lanka.113 In terms of the regulation of the sangha, different modernizing strategies were pursued in both Sri Lanka and Thailand respectively, for the reason that Sri Lanka was a British Crown Colony and Thailand – which was never formally colonized – chose a path of modernization under King Mongkut of the Chakri dynasty.114 In Sri Lanka in the late nineteenth century the Buddhist Temporalities Ordinance was passed with the purpose of setting out the rules for the regulation of temple property – this was on the back of the State’s extrication from Buddhist religious affairs in the aftermath of the 1832 Reforms and the transfer of responsibility to

State organization (Michael Keating, Social Citizenship, Solidarity and Welfare in Regionalized and Plurinational States, 13 Citizenship Studies 501–13 (2009)). 108 Schonthal, supra note 3, at 714. 109 de Silva-Wijeyeratne, supra note 46, at 76–77. 110 King Chulalongkorn introduced a very self-conscious process of European informed modernization of the bureaucratic structure of the Siamese State. 111 It was common for the colonial British Governor to occupy the place of the cakkavatti in rituals in the Kandyan provinces (de Silva-Wijeyeratne, supra note 46, at 84). 112 The focus of the reforms was the centralization of administrative and judicial organization and also fiscal reforms aimed at the mercantile transformation of the colony. 113 This utilitarian change in the order of knowledge that had reductive ends was simultaneous to the territorial unification of the Crown Colony of Ceylon under a single hegemonic bureaucratic colonial administration in Colombo under the 1832 Reforms. 114 In legal terms, this signified the adoption of European civil law forms (Hallisey, supra note 46, at 48–49).

Ancient constitutionalism in the Theravāda Buddhist tradition  201 colonial civil courts of the ‘powers formerly assumed by monastic bodies and kings’.115 But in nineteenth century Sri Lanka, the colonial legal system empowered the senior abbots of individual temples to exercise authority over temple property, with schismatic monks having a significant material incentive to ‘separating from the parent fraternity’.116 Thus the conditions for a decentralized sangha vis-à-vis the State was put in place, a state of affairs that persists into the post-colonial period. In Siam, in contrast, in the early nineteenth century the Chakri dynasty and ‘their officers created new, official, centralized hierarchies of saṅgha authority’.117 Schonthal has written extensively about the historical context of the different approaches to State intervention in Sri Lanka and Thailand regarding the sangha, disputes about incumbency, contested claims to monastic property and even more challenging claims made by monks, invariably in the context of modern imperatives, to rethinking the ‘parameters of proper Buddhism and Buddhist monastic life’.118 What I instead focus on in the concluding part of this chapter is the manner in which the 1832 Reforms facilitated a mode of Buddhist agency that would inform the performative logic of the Buddhist protection clauses in Sri Lanka’s post-colonial constitutional order. The story of Sinhalese Buddhist modernism – code in the Theravāda world for a movement ‘from practice centred on communal rituals to practice centred on self-cultivation’119 – is one of the reduction in meaning of āgama (the amalgamation of Buddhist discourses) to a post-Enlightenment understanding of ‘religion’.120 The reduction in meaning of this word to ‘religion’ took place in the encounter with Protestant missionaries in the mid-nineteenth century. The dhamma as cosmological law, with its ontological orientation, is reduced to ‘religion’, with its own propositional statements; this was analogous to the logic by which Protestantism framed its claims about the relation between the individual and God in terms of a set of either/or propositions.121 The paradox of the Colebrooke–Cameron Reforms – which had consolidated a process of desacralization, the State severing its ties with Kandyan Buddhism – became clearer.122 The bottom-up dynamic by which the cosmological order of Sinhalese Buddhism was increasingly subjected to a process of secularization provoked the wholesale nationalist revaluation of

115 Schonthal, supra note 3, at 717. In the early 1800s, a body of common law referred to as ‘Buddhist ecclesiastical law’ also emerged; its focus being the determination of temple incumbency claims. 116 Ibid., at 728. 117 Ibid., at 727. 118 Schonthal and Ginsburg, supra note 13, at 31. Schonthal, supra note 3, at 714–30; Ben Schonthal, The Impossibility of a Buddhist State, 3 Asian Journal of Law and Society 2948 (2016). 119 Charles Keyes, Buddhist Politics and Their Revolutionary Origins in Thailand, 10 International Political Science Review 126 (1989). 120 See supra note 56. 121 What I am trying to convey here is the distinction between faith and ‘religion’. Where faith ‘had indicated a whole dimension of life and consciousness, religion now denoted an explanation of life or a set of propositions’ (C. John Somerville, cited by Scott, supra note 56, at 67). Somerville’s observation is in the context of the Enlightenment’s reimagining of the nature of Christian faith. See also Kitsiri Malalgoda, Buddhism in Sinhalese Society, 1750–1900: A Study of Religious Revival and Change 209 (1976). 122 A ‘secular’ State was a hallmark of Bentham’s reformatory project, but in the colonial context it was always thoroughly compromised (James E. Crimmins, Secular Utilitarianism: Social Science and the Critique of Religion in the Thought of Jeremy Bentham (1990)).

202  Constitutions and religion the Buddha’s discourse. What appeared to be intrinsically irenic – a set of practices at ease with religious and cultural difference as manifest in the institutional practices that the ancient constitution made possible – would give way to the sectarian, an inevitable dynamic once older, more hybrid (Hindu) Sinhalese Buddhist practices were subordinated to a modernist lens whose positivist epistemology reduced Sinhalese Buddhism to either/or propositional values.123 The process of re-sacralization that transformed the Buddhist revivalist movement of the late nineteenth century into a Sinhalese Buddhist nation­alist movement in the twentieth century would depend significantly on the proliferation of lay middle-class Buddhist associations such as the Buddhist Theosophical Society and the Society for the Aid of the Buddhist Doctrine.124 An Aryanized Sinhalese identity – once merged with an increasingly reified form of Buddhism that emerged not only as a result of the confrontation with Protestant missionaries between the 1860s and 1870s, but also as a consequence of the influence of Orientalism on the study of Theravāda texts – would form the cultural resources of the Sinhalese Buddhist nationalist movement.125 Nira Wickramasinghe observes that developments: in physical anthropology and linguistics at the turn of the twenti­eth century were responsible for the definition of essentially linguistic groups such as Tamil and Sinhala in Ceylon in terms of physical characteristics which were supposed to be specific to those groups.126

Increasingly, legitimization of the colonial State became bound up with the intertwining of archaeology, anthropology and the Aryan theory of linguistic and racial origins.127 This association helped establish and then maintain an intimate relationship between the colonial State and local Sinhalese (Buddhist and Christian) elites. Consequently, these elites increasingly came to see their interests as synonymous with those of the colonial State.128 The revivalists set about in the name of an ought, reordering public space, and by the 1920s began articulating an argument in favour of State capture. Invoking a familiar racial overtone, Anagarika Dharmapala (a key figure in the revival) exhorted the Sinhalese ‘sons of the soil’129 to identify with the second century BCE King Dutthagāmanī, ‘who rescued Buddhism and our nationalism from oblivion [...] [and] work[ed] systematically [for] the goal of Home Rule under British protection’.130 The Pali and Sinhala Chronicles (eg, the Mahāvamsa) were now interpreted through the lens of an optic that was narrowly prescriptive. Subsequently, the

Harrison, supra note 56, at 14. M. Roberts, Exploring Confrontation: Sri Lanka – Politics, Culture and History 304–5 (1994). 125 Hallisey, supra note 46, at 31–62; M. Agnell, Understanding the Aryan Theory, in Understanding the Aryan Theory in Culture and Politics of Identity in Sri Lanka 47 (M. Tiruchelvam and C.S. Dattathreya eds., 1988). 126 Nira Wickramasinghe, Ethnic Politics in Colonial Sri Lanka, 1927–1947 (1995). 127 Agnell, supra note 125, at 54. 128 Agnell, supra note 125, at 57. 129 Ananda Guruge (ed.), Return to Righteousness 540 (1965). 130 Guruge, supra note 129, at 540. This is a familiar racial trope deployed by many Burmese monks as well particularly against Muslims, and it is often couched in terms of reimagining the Buddha’s sermons as heralding a defence of the Buddhist self against racial others (Walton and Hayward, supra note 8, at 23–24). 123 124

Ancient constitutionalism in the Theravāda Buddhist tradition  203 chronicles were increasingly valued for what they said about ways of seeing the world. This would have public policy consequences for majority-minority relations.131 Independence fell short of what Sinhalese Buddhist nationalists were agitating for. London initially agreed to Dominion status, which entailed maintaining symbolic and real links to the British Crown and British legal institutions. The 1948 Constitution was neutral on religion.132 This prompted Sinhalese Buddhist nationalists both inside and outside the sangha to campaign for a constitutional order that privileged Buddhism. When the Republican Constitution was drafted by a Constituent Assembly in the early 1970s, the debates revealed the power of Buddhist activist organizations to inform the political priorities of the State – the new Prime Minister Mrs Sirima Bandaranaike was also sympathetic to the project of reorganizing the State in a manner that privileged Buddhist interests. Since publication of the Buddha Sāsana Commission report in 1959, Buddhist activists had been seeking the elevation of Buddhism to the status of State religion. In the course of the Constituent Assembly debates, the government proposed that: The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster Buddhism while assuring to all religions the rights granted by Article 18(1)(d), which guaranteed the ‘freedom of thought, conscience, and religion [...]’.133

This clause was motivated by an increasingly territorialized Sinhalese Buddhist nationalism, one that imagined the island as a dhammadīpa (island of the dhamma) under threat from a number of sites – both local and external, such as European non-governmental organizations, American evangelical movements and radical Tamil nationalist claims to extensive decentralization/a separate State. Just as the Protestant turn in Sinhalese Buddhism had precipitated a subordination of the diversity of āgama within the unifying – in this case administrative – practices of colonial rule, then the post-colonial legacy of this shift in the order of colonial knowledge would be an analogous reduction in the understanding of dhammadīpa.134 The Mahāvamsa seemingly imposes on the island a Buddhist moral identity – that of the dhammadīpa and Sīhaladīpa, the island bestowed on the Sinhalese.135 I say ‘seemingly’ because this assertion is very much a Sinhalese Buddhist nationalist projection on to the interpretation of the chron­icle that fails to draw on the canonical account of dhammadīpa. In the Mahāparinibbāna Sutta, dhammadīpa is translated as ‘[whoever] has the dhamma as

131 The Mahāvamsa (Chronicle of the Great Dynasty) was a court chronicle that draws on both canonical and non-canonical sources in order to estab­lish a genealogy between the arrival of the dhamma on the island, the birth of Sinhalese Buddhist kingship and the North Indian origins of Buddhist kingship in the time of the Mauryan Empire, as well as the schisms in the early Theravāda Buddhist sangha. Accuracy is not the issue here; rather, we have the establishment of a genealogy that can be appropriated for the purpose of an ought – in terms of both politics and judicial activism the task at hand becomes one of maintaining the Sinhalese and Buddhist character of the island in the face of difference which subsequent to an Aryan theory of race can now be seen as racially other. 132 de Silva-Wijeyeratne, supra note 46, at 103–05. 133 The clause was overwhelmingly adopted by the Sinhalese majority in the Constituent Assembly. 134 Scott, supra note 56, at 57. 135 Heinz Bechert, The Beginnings of Buddhist Historiography: Mahavamsa and Political Thinking, in Religion and Legitimation of Power in Sri Lanka 1–12 (Bardwell L. Smith ed., 1978); Steven Kemper, The Presence of the Past: Chronicles, Politics and the Culture in Sinhala Life 37 (1991).

204  Constitutions and religion [guiding] light’,136 and ‘the implied subject is “whoever” [...] the subject is the individual and the dīpa is the guiding light’.137 This suggests a ‘universal religious-soteriological concept of dhammadīpa’.138 Here the word dīpa has generally ‘nothing to do with an island [...] [other than as] a metaphor for sarana (refuge)’.139 By contrast, in the Mahāvamsa the dhammadīpa is presented ‘as [the island] having the dhamma as [guiding] light’.140 It is this territorializing account of dhammadīpa that has become the sine qua non of modern Sinhalese Buddhist nationalist activism directed at restoring what is imagined as the colonial fracturing of the relation between territory, Buddhists and the dhamma.141 It is a thoroughly prescriptive form of representation that motivates the practices of Buddhist activism (legal and political) in other Theravāda countries such as Burma as well, where one can identify the racialization of Burmese Buddhist identity vis-à-vis ethno-religious others as a vehicle for the reorganization of public and private space – by private, I have in mind Burmese laws designed to regulate inter-marriage between Buddhists and Muslims, for example.142 The epistemic violence that the Constitution conveyed to both Tamils and non-Buddhists was clear; it was, as with the reforms of 1956 (that made Sinhala the sole official language of Sri Lanka), a clear transmission of the reified tropes of Sinhalese Buddhist popular culture into an authorizing grundnorm. It restructured how the Sinhalese Buddhist State, nation and people ought to see the relationship between themselves and their competing sites of disordering alterity. What ensued was an increasingly ethno-majoritarian State that pre­cipitated the drift in Tamil nationalism in a separatist direction – the Liberation Tigers of Tamil Eelam (LTTE) would become the principal vehicle of this struggle. This, in turn, ‘activated a culture of

Peter Schalk, Semantic transformations of the Dhammadipa, in Deegalle ed., supra note 36, at 86. Ibid., at 86 (original emphasis). 138 Ibid., at 86. 139 Ibid., at 86–7. 140 Ibid., at 88. 141 Schonthal, supra note 13, at 1980–2003, considers how the Buddhism clause in both the 1972 and 1978 Constitutions was mobilized by activists and litigants in a number of registers: first, in relation to the State’s attempt to centralize control over Buddhist temples and educational institutions in the 1970s; second, in relation to compelling the State to enforce what some Buddhists construed as Theravāda Buddhist orthodoxy – here it was ‘orthodoxy’ that was the object of contestation; third, in relation to compelling the State to intervene in order to defend Buddhist temples and archaeological sites that litigants argued were under threat from non-Buddhist religious others. This type of litigation was strengthened by the 1978 Constitution, which made a salient change to the Buddhism clause by altering the phrase ‘it shall be the duty of the State to protect and foster Buddhism [...]’ to read ‘to protect and foster the Buddha Sāsana’. In choosing ‘Buddha Sāsana’ rather than ‘Buddhism’, the 1978 Constitution signalled the State’s intent to protect a territorialized understanding of Buddhism in a more explicit vein because ‘Buddha Sāsana’ implicated not only the Buddha’s teachings, but his entire dispensation, including shrines, statutes, temples and sacred spaces which by its very logic encompassed the entirety of the dhammadīpa, conceived in the Sinhalese Buddhist nationalist imaginary as repeatedly under threat from competing sites of alterity; fourth, in relation to compelling the state to intervene against what such litigants imagined as a threat to the ‘Buddha Sāsana’ posed by globalization and Christian evangelism. 142 Walton and Hayward, supra note 8, at 15–16. In Thailand, Schonthal has argued that the context of its current constitutional reforms has opened up a space for a number of modernist Buddhist organizations to argue in favour of the new constitution declaring Buddhism the ‘State religion’ of Thailand and ‘insist that Thai legal institutions must do more to protect Buddhism against “impure” beliefs and practices’; www​.iconnectblog​.com/​2016/​06/​buddhism​-andin​-comparative​-constitutional​ -law/​, last accessed 11 June 2019. 136 137

Ancient constitutionalism in the Theravāda Buddhist tradition  205 Buddhist-interest litigation, one that has increased the number and the visibility of grievances about Buddhism, while also making those grievances matters of national concern’.143 In the rhetoric of Sinhalese Buddhist nationalism, the Buddhism clause in the Constitution ‘entailed obligations to defend Buddhist sacred sites in the Tamil-majority north and east of the island from Tamil vandals’.144 Such arguments were prosecuted by the Young Men’s Buddhist Association, an exemplar of Buddhist modernism, for which the ontological dispensation of the Buddha had long receded into historical memory. If one needs reminding, Buddhist modernism had become the preserve of bourgeois Sinhalese Buddhists ever since Dharmapala’s reforming strategy imagined as authentic a Buddhism that was devoid of the deviations of Hinduism and the spirit cults. The inauthentic in a Sinhalese Buddhist idiom (often associated with other religions, Tamils or cosmopolitanism) becomes that which must be either negated or made benign within the hierarchical order of the Sinhalese Buddhist State. While the war with the LTTE came to an end in 2009 in a devastating act of carnage that encompassed both the LTTE and Tamil civilians, the State’s approach under President Rajapakse to non-Buddhists remained informed by the ideological logic of the dhammadīpa.145 Physical attacks on evangelical Protestants and popular and organized riots against Muslims in recent years have continued to mark the ought of Sinhalese Buddhist nationalist practice – the reorganization of public/sacred space has been at the forefront of the most recent Buddhist modernist organization, the Bodu Bala Sena (Buddhist Power Force), to take up the task of violently advocating for a territorial definition of the dhammadīpa as against distinct others.146 At the centre of this ongoing crisis of representation for Buddhism in Sri Lanka, as well as Burma and other Theravāda majority countries, is Buddhism itself. Many in the sangha recognize this and challenge the reductionist logic of Buddhist modernism – in Burma, for example, the monk Sitagu Sayadaw has stressed the doctrine of ahimsa (non-violence) and compassion (karuna) in relation to what ought to be the principles that motivate the Buddhist encounter with religious others.147 Buddhist activist litigation in the Sri Lankan courts (when directed at religious others, particularly evangelical Christians and Muslims; or against legislative or constitutional amendments that have sought to restructure the State in a decentralized manner) is oriented by the territorial logic of the dhammadīpa.148 What religious others (either individually or at an institutional level) or those who advocate constitutional decentralization (as a means of addressing the claims of Tamil self-determination) do is advocate a breach of the dhammadīpa. In the imaginary of Sinhalese Buddhist modernism, this concept has been wholly etio­lated of its Schonthal, supra note 13, at 1972–73. Schonthal, supra note 13, at 1977. Dharmapala used the trope of the ‘vandal’ to describe European Christian and Tamil Hindu influences on the island (de Silva-Wijeyeratne, supra note 46, at 93–94). 145 President Rajapakse was defeated at the polls in 2015, but Buddhist modernism remains a dominant presence with the capacity to mobilize Sinhalese Buddhist populism against non-Buddhists. See www​.vice​.com/​en​_us/​article/​av4jye/​meet​-the​-violent​-buddhists​-starting​-riots​-and​-killing​-muslims​-in​ -sri​-lanka, last accessed 11 June 2019. 146 www​.theguardian​.com/​world/​2018/​mar/​07/​sri​-lanka​-blocks​-social​-media​-as​-deadly​-violence​ -continues​-buddhist​-temple​-anti​-muslim​-riots​-kandy, last accessed 11 June 2019. 147 Walton and Hayward, supra note 8, at 32–33. In Sri Lanka, the monk Watareka Vijitha Thero, who actively campaigns against the rhetorical and real violence of the Bodu Bala Sena, was abducted and assaulted in Colombo following his denunciation of anti-Muslim riots in Alutgama (south of Colombo) in June 2014. 148 Schonthal, supra note 13, at 1996–98. 143 144

206  Constitutions and religion canonical import: monks seeking no other refuge (sarana) than the dhamma, which is their dīpa or the state of being as a self-contained island in possession of the dhamma as dīpa.149 At a policy level, as well as in terms of Buddhist historiography, the result is the generation of the conditions of knowledge such that a spatial reconfiguration of the dhammadīpa is imagined as a symbolic castration of the Sinhalese Buddhist nation-State.

5. CONCLUSION In the contemporary moment Buddhist constitutionalism has, with respect to religious difference in Sri Lanka, given a platform for Buddhist organizations to persuade the courts to restructure the relationship between Buddhism and non-Buddhists and their religious institutions in a hierarchical and subordinating manner by invoking the State’s obligations under the Buddhism clause. In doing so, the courts have had to pronounce on the ought – what ought the extent of these obligations be with respect to the construction of churches or mosques within the environs of what litigants would argue is Buddhist sacred space.150 The manner in which such litigants aim to force the State to exercise jurisdiction over how non-Buddhist religions organize their space vis-à-vis Buddhist space is one that seeks to reinforce a hierarchical and territorial understanding of the Sīhaladīpa as a dhammadīpa. What is important to understand here is that it is Buddhist litigants (and not necessarily an activist State) who are mobilizing through the courts the authority of the State to re-hierarchialize the relationship between Buddhism and its institutions and non-Buddhists.151 The contemporary Buddhist mediation of ethno-religious difference in the Theravāda Buddhist world in both the juridical and political realms is informed by a particular way of seeing the world. The resulting sectarian forms of representation that Buddhist ethno-nationalism generates, while making the socio-political environment habitable, simultaneously reduce the multiplicity of the ontological to a ‘dominant way of being in the world’.152 The triumph of seeing over being is animated by the ought – what ought the social and the political look like, what ought the State do to protect Buddhism against sites of impurity and so on. This approach is at odds with the logic of classical Buddhist kingship, which I have argued was oriented by ontological questions. Buddhist kingship was imbued by the totalizing claims of dhamma, such that the monarch’s actualization of political power (attha) was always in the name of dhamma. The telos of kingship, of the state (ānā) itself was righteous rule as a medium towards nibbāna – not just for the king, but for Buddhists within the polity as well. Kingship revealed its ontological priorities in what I have characterized as an ancient constitution, a state model that was spatially non-bounded (which could in certain geographical

Schalk, supra note 136, at 87. Schonthal, supra note 13, at 1995–96. 151 In Burma, in the shadow of the passage of laws regulating religious inter-marriage advocated for by the Organization for the Protection of Race and Religion (or MaBaTha in its Burmese acronym), such Buddhist activist litigation may soon manifest itself with similar intent – that other religions and their adherents are hierarchically subordinated to a modernist revaluation of Buddhism (Ben Schonthal and Matthew Walton, The (New) Buddhist Nationalisms? Symmetries and Specificities in Sri Lanka and Myanmar, 17 Contemporary Buddhism 81–115 (2016)). 152 Daniel, supra note 10, at 94. 149 150

Ancient constitutionalism in the Theravāda Buddhist tradition  207 contexts in South and Southeast Asia take on an imperial persona), and yet simultaneously was both highly bureaucratized and highly devolved. The genius of this ancient constitution was that it facilitated a form of power distribution between the centre, semi-periphery and periphery of the polity that allowed for and legitimated complex, fluid and transformative relationships between Buddhism and those who practised other religions. The presence of Hindus and Muslims at the very centre of the Kandyan Kingdom or the Kingdom of Pagan respectively, and the absence of historical evidence suggesting that the presence of such others generated a Buddhist agency that would in contemporary terms be described as either violently negating or genocidal (as exemplified in the practices of the contemporary monistic State in South and Southeast Asia), indicate that the logic of community that the ancient constitution facilitated was one that operationalized a certain sense of being-in-common.153 These were Hindu-Buddhist polities that had a complex relationship to difference – the dominant principle was one of fluidity of movement and transformation (in both religious ideas and people). This is in contrast to the practices of the centralized State in contemporary Theravāda societies, in which the telos of the State (at the behest of Buddhist activist groups) is directed at creating a transcendental identity grounded in a thoroughly modernist Buddhism. The latter project is committed to an ought, which by its very nature is always negating of difference – as I have shown in South and Southeast Asia, this has the potential to be thoroughly violent, the ethno-religious other always encompassed by a dominant Buddhist identity (either at the level of State practice or through laws that place civil disabilities on intimate relationships). What appears dominant in contemporary Theravāda Buddhist Asia as far as contemporary constitutional practices and Buddhist activism are concerned is the logic of consolidation and the negation of ontological multiplicity.

153 Ben Pryor, Law in Abandon: Jean-Luc Nancy and the Critical Study of Law, 15 Law Critique 264 (2005).

and

12. Constitutionalism and religion in a Jewish and democratic state Gila Stopler

1. INTRODUCTION The purpose of this chapter is to analyze and critique the relationship between constitutionalism and religion in Israel as a Jewish and democratic state. In order to accurately describe the position of religion in the constitutional law of a particular state, it is essential to delve into the practice and the lived reality of religion in that state, since law and practice continuously influence, shape and reshape each other. This is doubly true in Israel, which has only a partial constitution whose development has been incremental and conflictual, in large part due to conflicts over issues of religion-state relations.1 There are at least five facets of the relationship between religion and the state in contemporary democracies that are crucial to an understanding of the ways in which religion-state relations affect each other, as well as the rights of citizens of the state: (1) the institutional differentiation between religion and the state; (2) the level of protection of religious liberty; (3) the involvement of religion in politics; (4) the extent of religious involvement in education and social services; and (5) the levels of religious belief of individuals in society.2 Although Israel is generally considered a Western liberal democracy, in terms of religion state relations it exhibits what I term a semi-liberal constitutionalism, which is the result of mixed commitments – a commitment to liberal universalist values and a commitment to Orthodox Jewish religious values.3 While Israel is an outlier among Western democracies in its religion-state relations, changes in the place and importance of religion in Western countries in recent decades have made the Israeli situation more pertinent to such democracies. The increasing desecularization of the world, and with it the increasing demands for what Jose Casanova calls the deprivatization of religion, have raised many questions with regard to the proper place of religion within the state and within its constitutional structure. Casanova describes the deprivatization of religion as “the fact that religious traditions throughout the world are refusing to accept the marginal and privatized role which theories of modernity as well as theories of secularization had reserved for them.”4 This refusal raises in many Western liberal countries the dilemma of whether, how and to what extent to deprivatize religion, and of what effects such deprivatization would have on human rights. Israel’s semi-liberal constitutionalism – which has, from the outset, combined the institutionalization of religion in some areas with respect for human rights in others – makes it an interesting

1 On the history of the development of Israel’s incremental constitutionalism, see Hanna Lerner, Making Constitutions in Deeply Divided Societies 51–108 (2011). 2 Gila Stopler, The Liberal Bind: The Conflict Between Women’s Rights and Patriarchal Religion in the Liberal State, 31 Social Theory and Practice 191, 194 (2005). 3 Gila Stopler, Semi Liberal Constitutionalism, 8 Global Constitutionalism, 94–122 (2019). 4 José Casanova, Public Religions in the Modern World 5 (1994).

208

Constitutionalism and religion in a Jewish and democratic state  209 case study with which to reflect on such questions. The partial establishment of religion in the state has come at a cost for human rights, and especially for women’s right to equality and for the right to religious freedom. A closer analysis of Israel’s partial establishment, of the public-private distinction, and of the effects of multiculturalism on religion-state relations in Israel, can help to shed light on the challenges that the calls for a deprivatization of religion present for Western democracies. Section 2 will provide a general overview of religion-state relations in Israel, which will touch upon each of the five facets mentioned above. Section 3 will provide a more detailed analysis of the different forms of establishment in Israel and their different effects on human rights; while Section 4 will discuss Israel’s convoluted public private distinction and the ways in which multiculturalism has exacerbated the infringement of rights that stems from the partial establishment of religion in the state. Section 5 will offer a short conclusion.

2.

RELIGION-STATE RELATIONS IN ISRAEL

While most liberal democratic states do not define themselves in reference to their ethnic or religious character, Israel is defined in its Basic Laws as a Jewish and democratic state. This definition is relatively new and was adopted along with the two Basic Laws on human rights – Basic Law: Human Dignity and Basic Law: Freedom of Occupation.5 However, the origins of this definition can be traced to the Israeli declaration of Establishment. This declaration states that Israel is to be a “Jewish state,” but at the same time that it will “ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture.”6 There is an ongoing and as yet unsettled debate in Israel with regard to the exact meaning of its definition as a Jewish state. While some claim that this definition establishes the Jewish religion in the state and justifies the granting of legal authority and status to the Jewish religion, others dispute this reading of the Basic Laws, arguing that the definition “Jewish state” should be understood merely as designating the character of Israel as the home of the Jewish people, where Jews realize their right to national self-determination, and not as an establishment of the Jewish religion in the state.7 Regardless of this debate, and long before the enactment of the Basic Laws, the Jewish religion in its Orthodox version had been partially established in the state through laws granting legal status to Orthodox Jewish religious authorities in several areas, the most 5 Basic Law: Human Dignity & Liberty, 1992, S. H. 1391, 60, https://​mfa​.gov​.il/​MFA/​MFA​ -Archive/​1992/​Pages/​Basic​%20Law​-​%20Human​%20Dignity​%20and​%20Liberty​-​.aspx, last accessed May 13, 2020. See also Basic Law: Freedom of Occupation, 1994, S. H. 1454, 90, https://​mfa​.gov​ .il/​MFA/​MFA​-Archive/​1994/​Pages/​Basic​%20Law​-​%20Freedom​%20of​%20Occupation​-​.aspx, last accessed May 13, 2020. 6 The Declaration of Establishment of the State of Israel (Israel, May 14, 1948), https://​mfa​.gov​ .il/​MFA/​ForeignPolicy/​Peace/​Guide/​Pages/​Declaration​%20of​%20Establishment​%20of​%20State​%20of​ %20Israel​.aspx, last accessed May 13, 2020. 7 See Avigdor Levontin,“Jewish and Democratic” – Personal Reflections, in The State of Israel: Between Judaism and Democracy 251 (Yossi David ed., 2000) (taking a position against interpreting the term “Jewish” in the Basic Laws as including the Jewish religion). See cf. Menahem Alon, Constitution by Legislation: The Values of a Jewish and Democratic State in Light of Basic Law: Human Dignity and Personal Freedom, 17 Iunei Mishpat 659, 668–70 (1993) (taking a position supporting the inclusion of the Jewish religion in the term “Jewish”).

210  Constitutions and religion important of which being that of personal laws.8 This partial establishment originated in the pre-state era and in the need of the leaders of the Zionist movement to secure the support of the religious factions within the Jewish community for the establishment of the Jewish state, and has come to be known as the “Status Quo.”9 At the same time, this partial establishment was also motivated by the need of the new Zionist secular regime to gain legitimization by maintaining a connection with the Jewish past.10 Regardless of the motivation behind it, the Israeli model of religion-state relations – which from the outset has given substantial preference to the Orthodox Jewish religion – deviates from the classical liberal model, which aspires to treat all religions equally and neutrally.11 The most important aspect of the partial establishment of Orthodox Judaism is that all Jews in Israel are subject to Orthodox Jewish religious personal laws. At the same time, members of other recognized religious communities, such as Muslims and various Christian denominations, are also subject to the personal religious laws of their respective religions.12 This state of affairs has first been instituted at the period of the Ottoman rule over the Eretz-Israel/Palestine region and has been maintained by the British Mandate and later by the state of Israel. As will be discussed in more detail below, the imposition of the religious personal laws of the various religious communities on all residents and the lack of an alternative civil marriage constitute a violation of the right to freedom of conscience and belief, as well as a violation of the rights of women, who are subject to the discriminatory patriarchal religious laws of the various religious communities.13 While establishing an exclusively religious system of laws in matters of marriage and divorce is the most serious institutional entanglement of religion within the Israeli state, there are several other areas in which religion – and in particular the Orthodox Jewish religion – is given a preferred status by the state, either through statutes or through administrative decisions, which confer to it state power as well as state funding. Thus, the state has established a chief rabbinate and has given full control over it to Orthodox Judaism.14 The chief rabbinate is a powerful state organ which enjoys large budgets and which controls the religious services 8 Importantly, Orthodox Judaism contains two separate streams: the Orthodox stream and the ultra-Orthodox stream. These two streams share control over the Jewish religious establishment in Israel. 9 Daphne Barak-Erez, Law and Religion Under the Status Quo Model: Between Past Compromises and Constant Change, 30 Cardozo L. Rev. 2495 (2009). 10 Yonatan Shapira, Secular Politicians and the Status of Religion in the State of Israel, in Multiculturalism in a Democratic and Jewish State, The Ariel Rosen-Zvi Memorial Book 661 (Menachem Mautner et al. eds., 1998). 11 On neutrality toward religion in liberal states, see for example John TS Madeley and Zsolt Enyedi, Church and State in Contemporary Europe: The Chimera of Neutrality (2003). 12 The authority of the various religious communities was established through legislation from the period of the British Mandate that was later incorporated into Israeli law. See British Order in Council, August 10, 1922, para. 51 (Palestine). The authority of the Muslim religious courts can still be found in Sign 52 of the King’s Order in Council (1922), and that of the various Christian denominations in Sign 54 of the Order. Id., at paras. 52, 54. The authority of the Jewish Rabbinical Courts is set out in the Jurisdiction of Rabbinical Courts (Marriage and Divorce) Act, 1953. Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713–1953, 7 LSI 139 (1952–53) (Isr.). The authority of the Druze religious courts can be found in the Druze Religious Courts Law, 1962. Druze Religious Courts Law, 5723–1962, 8 LSI 27 (1962–63) (Isr.). 13 See, for example, Frances Raday, On Equality, in Women’s Status in Israeli Law and Society 19 (Frances Raday et al. eds., 1995). 14 The Chief Rabbinate of Israel Law, 1980, S.H. 965, p. 90.

Constitutionalism and religion in a Jewish and democratic state  211 given by the state to the Jewish population. Some of the state and municipal institutions established and financed by the state and subject to the religious authority of the Chief Rabbinate are the rabbinical courts, which deal with matters of marriage and divorce of Jews in Israel; the regional religious councils, which deal with the supply of religious services like burial (public cemeteries in Israel are overwhelmingly religious), synagogues and kashrut to Jews on a regional basis; and the conversion courts, which deal with conversion to Judaism.15 The control over Israel’s Jewish religious establishment is at the hands of Orthodox Judaism and shared by the ultra-Orthodox community (UO) and by the religious Zionist Orthodox community (RZ), which together comprise only 18 percent of the population in Israel, or 22 percent of its Jewish population.16 While both communities belong to the Orthodox stream of Judaism, they differ in important respects. The RZ community is well integrated into Israeli society in terms of places of residence, of work and of army service; and its subgroups are varied in their interpretations of Orthodox Jewish religion – although it would be accurate to say that most of the RZ community lean toward the more conservative side of the spectrum of orthodox Judaism, and an increasingly influential minority among them espouse the UO’s ultra-conservative religious views and practices. Unlike the RZ community, the UO community is an enclave community that insists on leading its life separately from the rest of Israeli society; does not serve in the army; does not teach its boys the core curriculum, but only religious studies; and declares itself to be anti-Zionist. At the same time, UO leaders hold key positions in Israeli politics and in the Israeli Jewish religious establishment. Furthermore, the UO community subscribes to a fairly unitary and ultra-conservative – even fundamentalist – interpretation of Judaism.17 UO leaders maintain tight control over the community and use its relative seclusion from the rest of society as a control mechanism. Throughout the years the control over the religious establishment has been determined through political deals and power struggles between the RZ and the UO communities, and secular Jews as well as Jews belonging to the non-Orthodox Jewish streams have been kept away from positions of power within Israel’s Jewish religious establishment. Another important area in which the RZ and UO communities are given preferential treatment by the state is education. The state has established a fully funded Orthodox religious public education system for the RZ, alongside the secular public education system.18 In addition, the state recognizes the existence of autonomous UO religious schools, which have almost complete autonomy in choosing their curriculum, while at the same time being heavily funded by the state.19 While many of these arrangements have originated in the aforementioned “Status quo,” they have been shaped and reshaped over the years by the struggles between, on the one hand, RZ and UO interests, represented by RZ and UO political parties; and on the other hand, secular and

The Jewish Religious Services Law, 1971, S.H. 628, p. 130. Pew Research Center, Israel’s Religiously Divided Society, 8 March 2016. Ultra-orthodox comprise 9 percent of Jews, religious Zionists 13 percent, Masorti Jews (traditional) 29 percent and secular Jews 49 percent. See www​.pewforum​.org/​2016/​03/​08/​israels​-religiously​-divided​-society/​, last accessed May 13, 2020. 17 Samuel Heilman and Menachem Friedman, Religious Fundamentalism and Religious Jews: The Case of the Haredim, in FUNDAMENTALISMS OBSERVED 197 (Martin E. Marty and R. Scott Appleby eds. 1994). 18 The State Education Law, 1953, SH 131, p. 137. 19 See id., and also Unique Cultural Education Institutions Law, 2008, SH 2173, 742. 15 16

212  Constitutions and religion non-Orthodox interests.20 For example, in terms of education, while both the RZ and the UO have autonomous control over their own education systems, RZ politicians have also been given control over the secular education system intermittently throughout the years, enabling them to infuse religious ideas into the secular education system. Thus, the fact that the two most significant players in Israel’s religion state relations are the UO community and the RZ community, which both belong to the most conservative Jewish streams, decisively impacts the nature of Israel’s institutional religion and has adverse effects on the human rights of all Israelis. UO rabbis have been serving as judges in the rabbinical courts system, to which all Jews are subject in matters of marriage and divorce, since its inception.21 All judges in the regional rabbinical court are either UO or RZ rabbis; while in the Great Rabbinical Court, which is the highest rabbinical court that decides appeals from all regional courts, all judges are UO.22 Through their positions, the UO and RZ judges are authorized to impose their Orthodox and UO versions of Jewish religious law on all Jews in Israel. As will be further discussed in Section 2, in recent years, with the increasing radicalization of the UO community and of parts of the RZ community, the rulings of rabbinical courts have become even more conservative and more detrimental to the rights of women and of converts. In addition, the influence of UO political parties, which started as early as the establishment of the state, has strengthened considerably ever since.23 This influence has allowed UO politicians to obtain considerable budgets for the UO community, which support their Yeshiva studies and their growing families.24 It has also allowed them to have significant impact on general issues affecting Israeli society at large, by serving in key positions such as minister of interior, minister of housing, minister of health, minister of religion, head of the Parliament (Knesset) Budget Committee and mayor of Jerusalem. In their capacities in the government, in the Knesset and in the local municipalities, UO politicians and public servants strive to implement their ultra-Orthodox religious ideology on the public at large, in contravention of the liberal values of the state.25 Similarly, religious-Zionist politicians have always held key political positions such as minister of education and more recently minister of housing, and even minister of justice. These politicians have been using their political power and access to state budgets to implement and further spread their Orthodox religious nationalist ideology.26

See generally Barak-Erez, supra note 9. Nissan Slominslki, The Appointment of Rabbinical Court Judges – An Ultra-Orthodox State or a Zionist State?, www​.toravoda​.org​.il/​node/​584, last accessed May 13, 2020. 22 www​.kipa​.co​.il/​now/​47971​.html, last accessed May 13, 2020. 23 Gershon Shafir and Yoav Peled, Being Israeli: The Dynamics of Multiple Citizenship 137–58 (2002); Eyal Benvenisti, Party Primaries as Collective Action with Constitutional Ramifications: Israel as a Case Study, 3 Theoretical Inquiries in Law 175, 186–87 (2002). 24 Menachem Friedman, The Haredi (Ultra-Orthodox) Society – Sources, Trends and Processes 189 (1991) (Hebrew). 25 To give one example, in Jerusalem UO politicians controlling the municipal government have for years denied municipal budgets to the gay and lesbian community, despite repeated court rulings holding that such denial is discriminatory and illegal. See A.A. (administrative appeal) 343/09 Open House v. Municipality of Jerusalem (14/9/10). 26 Judi Maltz, Why Israel Is Spending Millions on Orthodox Missionary Work – and How This Empowers the Settlers, Haaretz (June 15, 2017), www​.haaretz​.com/​israel​-news/​.premium​-1​.795718, last accessed May 13, 2020; Or Kashti, Funding for Israeli Jewish Identity Unit Doubled Since Its Founding in 2013, Haaretz (June 30, 2017), www​.haaretz​.com/​israel​-news/​.premium​-1​.804215, last accessed [13/5/20]. 20 21

Constitutionalism and religion in a Jewish and democratic state  213 One example of the use of state and political power by both RZ and UO officials to promote fundamentalist religious ideologies is a religious ruling issued in 2010 by 50 municipal rabbis, both UO and RZ – all of whom are public servants who receive their salary from the state – forbidding the sale and rental of homes to gentiles, particularly to Arabs, allegedly on religious grounds.27 As a state that maintains a partial establishment of religion, gives its religious establishment considerable power and continues to maintain the Ottoman millet system for its religious minorities in the area of personal laws, Israel has a mixed record of protection of religious freedom. In the areas in which the religious establishment is authorized to enforce its religious edicts, such as the area of personal law, religious freedom in Israel is highly circumscribed. The millet system, which allows recognized religious communities control over the personal law of those considered as members of their religion, is seen by many as a multicultural accommodation that advances the religious freedom of minorities. Nevertheless, one should not lose sight of the fact that while this accommodation may be valuable for minority religious communities, its result is that the religious freedom of individuals in these communities is restricted, since they have no option but to be subject to the religious personal laws of their respective community.28 Similarly, as will be further discussed below, the religious courts and the religious personal laws that they implement are largely immune from the reach of the Women’s Equal Rights Act and are highly discriminatory towards women.29 Furthermore, the entanglement of religion in politics and the excessive power of the UO and RZ politicians restrict the religious freedom of the non-Orthodox Jewish denominations and the freedom from religion of secular Jews in diverse ways. Thus, diverse issues pertaining to the public sphere are determined on the basis of Jewish Orthodox and UO religious interests, from access of Jews to the Western Wall in Jerusalem to restrictions on commerce and lack of public transportation on Saturdays.30 As will be discussed below, the conflicts between religion and human rights have exacerbated in recent years as the UO and parts of the RZ communities increase their attempts to shape the Israeli public sphere according to illiberal precepts such as the segregation of women.

3.

FORMS OF ESTABLISHMENT

When discussing religion-state relations, a useful classification can be offered that distinguishes between three approaches: the nationalization of religion, the authorization of religion and the privatization of religion.31 The fundamental differences between these three approaches

27 Kobi Nahshoni, 50 Municipal Rabbis: Don’t rent Flats to Arabs, Ynet (July 12, 2010), www​ .ynetnews​.com/​articles/​0​,7340​,L​-3995724​,00​.html, last accessed May 13, 2020. 28 See, for example, Michael Karayanni, Two Concepts of Group Rights for the Palestinian-Arab Minority under Israel’s Constitutional Definition as a “Jewish and Democratic” State, 10 Int’l J. Con. L. 304 (2012). 29 Women’s Equal Rights Act (1951). 30 On days of rest, see for example Ruth Gavison and Nahshon Perez, Days of Rest in Multicultural Societies: Private, Public, Separate?, in Constituting Religion: Law, Society and Faith in the 21st Century 186 (Peter Cane, Carolyn Evans and Zoe Robinson eds., 2009). 31 Gila Stopler, Religion–State Relations and Their Effects on Human Rights: Nationalization, Authorization, and Privatization, 6 Oxford J. L. & Rel. 474 (2017).

214  Constitutions and religion which are relevant to our discussion revolve around their position on the grant of state power and/or of autonomy to religion. In liberal countries, the common approach is the privatization of religion, which separates state power and authority from religious authority, while at the same time giving religions wide autonomy to function as private entities that are relatively free from state supervision and intervention. Most liberal countries do not establish religion in the state in any way and abstain from endowing it with state power. Liberal states that do have an established religion rarely grant religion coercive power over their citizens and often maintain only symbolic establishment.32 Unlike privatization of religion, the two other approaches – authorization of religion and nationalization of religion – both involve giving state power to religion. However, they differ widely with respect to the degree of autonomy they afford religion. The authorization of religion implies that religion (often the state religion) and its institutions are given the power to control certain aspects of state governance, but at the same time they are left with considerable autonomy from state intervention. Thus, religious leaders are granted official status and power by the state to impose religious precepts on the entire population according to the internal understanding of religion by the religious community, leaving almost no say to the civic state.33 Conversely, the nationalization of religion means that although the state allows religion to play a central role in the public life of the nation, at the same time the state controls the determination of the relevant religious content, shaping this content in ways that advance both the religious and the wider goals of the state.34 Thus, while where the authorization of religion prevails, the controlling law is the religious text chosen and interpreted by the religious officials, a central feature of the nationalization of religion is that the state assumes the authority to determine what the content of the state religion is and how it should be deployed in the state. This can be done both by codifying religious precepts into civil law through civil institutions such as Parliament, and by entrusting secular courts with the interpretation and implementation of the codified law or of religious law if applicable. Israel employs each of these three approaches in different areas of its religion-state relations. Thus, generally religion is considered to be an individual’s private choice, and an individual’s ability to practice his or her religion is not restricted unless and until such practice contravenes an explicit law. However, in some areas of law – most notably, marriage and divorce – Israel has chosen to establish religion in the state through the authorization of religion. In other areas, such as conversion to Judaism, the state has chosen to endow religion with state power through the nationalization of religion. The choice whether to authorize religion or to nationalize it has important implications with regard to both the effects of the religious establishment on the human rights of the state’s citizens and the ability of the state to deploy the establishment to advance the interests of the state, rather than the interests of the religious officials controlling the establishment. The authorization of religion in matters of marriage and divorce in Israel manifests itself both in the grant of exclusive jurisdiction to the religious courts of the various religious communities and in the lack of codification of core aspects of religious family law. For example, the Rabbinical Courts Law grants the Jewish religious courts in Israel exclusive jurisdiction in matters of marriage and divorce.35 With respect to the legal norms that the rabbinical courts 34 35 32 33

Id., at 489–90. On authorization of religion see id., at 483–84. On nationalization of religion see id., at 479–80. Rabbinical Courts Jurisdiction (Marriage and Divorce), Law § 1.

Constitutionalism and religion in a Jewish and democratic state  215 use to adjudicate these matters, the law states only that “[m]arriages and divorces of Jews shall be performed in Israel in accordance with Jewish religious law.”36 This leaves both the determination of the applicable Jewish religious law and its interpretation solely at the hands of the presiding religious judges. In these matters, the rabbinical courts – and indeed all recognized religious courts – are even immune from the scrutiny of the Israeli Supreme Court, which may intervene in their decisions only if they clearly overstep their jurisdiction.37 The Supreme Court will not intervene in decisions of recognized religious courts even in cases of a clearly mistaken application of the relevant religious law.38 In addition to their exclusive jurisdiction and complete discretion in matters of marriage and divorce, the rabbinical courts have concurrent jurisdiction with civil family courts in matters that are ancillary to the divorce, such as alimony and child support.39 Because the rabbinical courts are mostly staffed with very conservative religious judges, most of them UO, their decisions on these ancillary matters have tended to be much worse for women than civil courts’ decisions.40 In order to ameliorate this discrimination against women, civil authorities have, throughout the years, somewhat narrowed the jurisdiction of the rabbinical courts and codified into civil law more egalitarian arrangements on ancillary matters such as the division of property.41 However, the interplay between the authority of religious judges bent on applying conservative religious law and the determination of civil society organizations and civil state bodies to promote liberal values in those areas of family law not directly subject to the exclusive authority of rabbinical courts has resulted in a clash of power and in the increasing radicalization of rabbinical court decisions. For example, in order to force women to subject themselves to rabbinical court rulings on matters of concurrent jurisdiction such as child support, and to prevent them from turning to civil family courts for more egalitarian rulings, rabbinical courts have in recent years started resorting to the retroactive annulment of divorces.42 A retroactive annulment of divorce is a highly contentious practice in Jewish law because, among other things, it retroactively turns a child that was born in a legitimate marital relationship (between the divorcee and her second husband) into an illegitimate child (a Mamzer) born to a woman from someone other than her husband.43 The status of Mamzer in Jewish law has devastating results for the child, such as a prohibition on marrying any other Jew.44 In the past, rabbinical courts

Id., at § 2. Basic Law: The Judiciary, 5744-1984, SH No. 2, p. 78 (Isr.). The rabbinical courts are authorized to apply Jewish religious law in all matters directly related to marriage and divorce, and the Supreme Court will not intervene in such matters. HCJ 8872/06 Ploni v. High Rabbinical Court. However, the Supreme Court has held that the rabbinical courts must apply relevant Israeli civil law in all matters that are incidental to the marriage and divorce, and their failure to do so may trigger judicial review by the Supreme Court. See, for example, HCJ 1000/92 Bavli v. High Rabbinical Court. 38 HCJ 4577/12 Sabag v. Holy Synod of the Greek Orthodox Patriarchate of Jerusalem. 39 Ruth Halperin-Kaddari, Women in Israel: A State of Their Own 233 (2004). 40 Halperin-Kaddari, supra note 39, at 233–34. 41 Id., at 234. 42 Amihai Radzyner, From Levov to Tel Aviv: ‘Wrongful Divorce’ Rulings in Israeli Rabbinical Courts, 39 Hebrew U. L. J. 155, 215–28 (2009). 43 Id. 44 Suzanne Last Stone, The Intervention of American Law in Jewish Divorce: A Pluralist Analysis, 34 Isr. L. Rev. 170, 175 (2000). 36 37

216  Constitutions and religion have adamantly rejected any claim for a retroactive annulment of divorce.45 Nevertheless, in recent years, in order to deter women from turning to civil courts, Orthodox judges in the rabbinical courts have started using retroactive annulments of divorce against women who, subsequent to the religious divorce, pursue their own and their children’s rights in civil courts.46 This is an example of the problems that may arise when establishing religion through the authorization of religion rather than through its nationalization.47 Notably, the authorization of minority religions in matters of personal law has similarly entrenched ultra-conservative interpretations of religious law by minority religious courts and served to hinder reform. Thus, for example, the Greek Orthodox minority in Israel is governed by the religious establishment of the Greek Orthodox Church which rules in personal status matters on the basis of church doctrines from the fourteenth century. These include ancient doctrines according to which the husband has grounds for divorce if his wife slept out of the house without his consent, or if she went to racing or hunting parties without his approval.48 An example of nationalization of religion in Israeli law is the Law of Return, which grants Jews the right to immigrate to Israel.49 Section 4(b) of the law defines who is considered a Jew for the purposes of the Law. It states that a Jew is “a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion.”50 Conversion into Judaism is a religious act, and RZ and UO politicians, together with the Israeli religious establishment controlled and run by them, have tried to dictate that only Orthodox Jewish conversion be recognized by the state. Nevertheless, the Israeli Supreme Court has held that conversions carried out by the more progressive Conservative and Reform movements of Judaism should, under certain conditions, be considered valid conversions for the purposes of the Law of Return, as well as for the purposes of the population registry. Thus, the civil court has given this religious element within the Law of Return a wide interpretation, aimed at aligning it more closely with the interest of the state, to enable more Jews to come to Israel. This in turn has created an anomaly. While rabbinical courts – staffed by UO and RZ judges – recognize as Jews for purposes of marriage and divorce only converts who have undergone strict forms of orthodox Jewish conversion, civil state institutions – which are subject to the rulings of the Supreme Court – also recognize as Jews people who have undergone conversions within the Conservative and Reform Jewish denominations. Thus, a person can be officially regarded as Jewish in the eyes of most state institutions, while at the same time the state’s religious establishment will not consider him or her a Jew, and consequently that person would be unable to get married in Israel. While such a result is contrary both to the rights of the Radzyner, supra note 42, at 164–72. Id., at 215–28. 47 This problem is particularly acute when ultra-conservative groups are given authority by the liberal state to enforce their religious precepts. For an empirical study concluding that liberal states should not grant state jurisdiction to religious courts of ultra-conservative minority groups, see Daphna Hacker, Religious Tribunals in Democratic States: Lessons from the Israeli Rabbinical Courts, 27 J. L. & Religion 59, 81 (2011–12). 48 Michael Karaynni, “Jewish and Democratic” Multiculturalism and the Greek Orthodox Community, in Conflict, Religion and State in Israel 227 (Nachum Langental and Shuki Friedman eds., 2002) (Hebrew). 49 Law of Return 5710–1950. 50 Law of Return (Amendment No. 2) 5730–1970. Passed by the Knesset on 2nd Adar Bet, 5730 (March 10, 1970) and published in Sefer Ha-Chukkim No. 586 of the 11th Adar Bet, 5730 (March 19, 1970), p. 34; the Bill and an Explanatory Note were published in Hatza’ot Chok No. 866 of 5730, p. 36. 45 46

Constitutionalism and religion in a Jewish and democratic state  217 affected individuals and to the interests of the state, it is nonetheless allowed to stand; and the state – hesitant to enforce a more expansive interpretation of Judaism on the highly Orthodox religious establishment – takes no action to resolve it. This is despite its theoretical ability to do so by revoking the religious establishment’s authorization or by narrowing it down. The retroactive annulment of marriages by rabbinical courts and their refusals to recognize as Jews people who have been recognized as such by the state both reveal that by authorizing these courts, Israel has relinquished state power to religious institutions that are ideologically committed to very different ideals concerning equality and freedom than those officially prescribed to by the state. The result is a battle of wills and of power between the civil state and the religious establishment, which is fought at the expense of individual rights and leads to further radicalization of the conservative religious establishment. While the religious establishment is fully committed to the implementation of the religious precepts it adheres to, the state – which is hesitant to force the highly Orthodox religious officials to act against their religious conscience – is set to lose.51 Thus, the result of the combination of liberal sensibilities and political exigencies is that Israel has lost effective control over its religious establishment, and cannot ensure either the protection of individual rights or the advancement of state interests in areas in which the religious establishment has been granted authorization, into which neither the Supreme Court nor the legislature is willing to enter.52

4.

THE PUBLIC-PRIVATE DISTINCTION AND THE EFFECTS OF MULTICULTURALISM

As a country with a partial religious establishment, the contours of the distinction between the public and the private in Israel are different than those found in most Western democracies. Thus, in Western democracies, religion is not part of the state; and even if the state does have an official religion, it is not given coercive power over the citizens. Conversely, in Israel, the Jewish religion, together with the other recognized religions, is given official status and coercive power over those citizens under its jurisdiction, as determined by state law.53 Consequently, unlike in liberal states, in which civic courts scarcely interfere with the autonomy of private religious institutions, the situation in Israel is more complex. Indeed, as discussed in the previous section, the Supreme Court does not interfere in those areas in which state-appointed religious courts have been granted authorization to act exclusively according 51 See, for example, H.C. 6111/94 HaVaad L’Shumrei Masoret v. The Chief Rabbinical Council (where the Israeli Supreme Court rejected a petition to force a state employed orthodox rabbi to marry a Jewish couple in a restaurant that did not keep the Orthodox rules of Kashrut. The rabbi and the Chief Rabbinical Council claimed that this would violate the rabbi’s freedom of religion. The court accepted this argument and rejected the petition, chastizing the petitioners for their insensitivity toward the rabbi’s religious beliefs. In a strictly liberal setting, this decision seems sound. However, when examined in a setting in which the state authorizes the Orthodox Jewish religion and recognizes only marriages carried out by orthodox rabbis, it turns out to be very problematic, since it protects the rights of the rabbi who is a state official at the expense of those of the petitioners, without offering them any recourse for the violation of their own religious freedom). 52 See, for example, Gila Stopler, National Identity and Religion State Relations – Israel in Comparative Perspective, in Israeli Constitutional Law at a Crossroads 503, 513–16 (Gideon Sapir, Dafne Barak-Erez and Aharon Barak eds., 2013). 53 See supra note 12.

218  Constitutions and religion to their interpretation of the applicable religious law. Nevertheless, the Supreme Court has throughout the years tried to ameliorate the discrimination against women inherent in the structure and practice of state appointed religious bodies in the areas in which the structure and practice of these bodies are set out in civil legislation (i.e. are nationalized) and are open to a more egalitarian interpretation. Thus, for example, in one precedent-setting case, Shakdiel, the Supreme Court ruled that Jewish municipal religious councils that are in charge of supplying Jewish religious services to residents, and that up to that point were comprised only of male representatives, also had to appoint women representatives. The court rejected the religious establishment’s claim that religious law prohibited women from serving as representatives and reasoned that the religious councils are state administrative bodies that operate according to a civil law, and as such are bound by the strictures of the Women’s Equal Rights Act, which enjoins all public authorities to respect women’s right to equality.54 Similarly, in Doe the Supreme Court required the Muslim Sharia Court to appoint a woman as arbitrator in a family law dispute in a case in which the wife had asked to have a woman as arbitrator on her behalf.55 The Supreme Court ruled that when deciding what arbitrator to appoint on behalf of the wife, the Sharia Court could not reject women as arbitrators merely on account of their sex. While the Women’s Equal Rights Act allows exceptions from the duty to respect women’s equality in matters pertaining to the substantive application of the religious laws of marriage and divorce, and to the appointment of religious judges, the Supreme Court held that the appointment of a female arbitrator on behalf of the woman pertained neither to the substantive application of the religious laws of marriage and divorce nor to the appointment of religious judges, and was therefore subject to the equality mandate and should be allowed by the Sharia Court. Likewise, the Supreme Court ruled in favor of petitioners who claimed that women should be trained and appointed as rabbinical pleaders on behalf of litigants in the rabbinical courts, on similar grounds.56 These cases and others are examples of the Supreme Court’s willingness to restrict religious law’s adverse impact on women’s right to equality in order to advance egalitarian constitutional principles, where such principles are applicable. Unlike religious bodies in liberal states, which are private and which are therefore largely immune to egalitarian constitutional norms, the aforementioned religious bodies in Israel operate as state organs and are therefore subject to some constitutional supervision. As the Supreme Court explained in Doe with respect to religious state organs: this is a field in which discrimination against women at the declarative and principle level, too, still remains. This is partly protected by legislation, and the Court must maneuver its way in a manner that respects the legislator’s decisions, but with maximum commitment to the basic principle and constitutional right of equality for women. This is particularly true when at hand are public and state institutions whose services are required by the entire public who cannot avoid such institutions’ services.57 54 HCJ 153/87 Leah Shakdiel v. Minister of Religious Affairs et al. 42(2) PD 221 (1988) (Isr.). Translation by Versa: Opinion of the Supreme Court of Israel, http://​versa​.cardozo​.yu​.edu/​opinions/​ shakdiel​-v​-minister​-religious​-affairs, last accessed May 13, 2020. 55 HCJ 3856/11 Doe v. Supreme Sharia Court of Appeals (June 27, 2013) (Isr.). Translation by Versa: Opinion of the Supreme Court of Israel, http://​versa​.cardozo​.yu​.edu/​opinions/​doe​-v​-supreme​ -sharia​-court​-appeals, last accessed May 13, 2020. 56 HCJ 6300/93, “Hamachon Lehachsharat Toanot Beit Din” v. The Minister of Religious Affairs, IsrSC 48(4) 441 (1994). 57 Doe, supra note 55, sec. 26.

Constitutionalism and religion in a Jewish and democratic state  219 Nevertheless, it is important to understand that despite its good intentions, the Supreme Court’s ability to ameliorate the discrimination against women and the violation of freedom of religion and of conscience inherent in the operation of the religious establishment in Israel – Jewish and non-Jewish – is highly restricted because of the immunity that these institutions have, due to both their authorization and the limited reach of the constitutional protection of human rights enshrined in the Basic Law: Human Dignity and Liberty. Another troubling consequence of the intermixing between private religion and public authority is that some religious communities – and in particular the UO community, through its political leaders – have been wielding state authority through the religious courts and through political power, and imposing their extreme religious strictures on the population, while at the same time claiming and receiving multicultural exemptions as an alleged minority religious community. The account given here of the interplay between religion and state power in Israel has amply demonstrated how UO state officials, representing the UO community, use the coercive power of the state in order to apply their religious ideology in the Israeli public sphere and in the private lives of Israeli citizens. At the same time, these officials have claimed that the UO education system is entitled to full autonomy as part of the freedom of religion and of the multicultural respect owed to the UO community as a secluded religious minority, which is dedicated to its deeply religious (yet deeply illiberal) way of life. This position was explicitly adopted by the Knesset in the Unique Cultural Educational Institutions Act, which exempts UO high-school male students from studying the core curriculum mandated by the Ministry of Education and allows UO high schools for boys to teach only religious studies, and yet still get state funding.58 This supposedly multicultural accommodation ignores the fact that some of these UO boys later go on to serve as rabbinical court judges and in various other state functions on behalf of the UO community, and wield coercive state power over the entire population. Their exemption from any secular studies, including citizenship studies and any study of the principles of equality and toleration, is a misapplication of multicultural principles and results in the further violation of the rights of other citizens that are subjected to the coercive state power yielded by these officials. Similarly, several state authorities have been accommodating demands by UO leaders to institute segregation in the public sphere between men and women. According to these UO leaders, this sex segregation is required in order to allow the UO community to integrate in the public sphere while maintaining religious modesty rules. Although some of these state-sponsored segregation practices have been struck down by the Supreme Court as discriminatory against women, others still prevail.59 Thus, for example, the Israeli army has committed to providing UO male recruits with a “female-free zone” during their army service, and physically bars women soldiers and women officers from being present in the vicinity of UO soldiers. Similarly, the Israeli Council for Higher Education has initiated segregated university courses for UO men and women in which women professors are barred from teaching the UO men.60 These state authorities justify their segregationist policies as multicultural

The Unique Cultural Educational Institutions Act, 2008. HCJ 746/07 Regan v. Ministry of Transport 64(2) PD 530, (2011) (Isr.), https://​versa​.cardozo​.yu​ .edu/​opinions/​ragen​-v​-ministry​-transport, last accessed May 13, 2020. 60 A petition to the Supreme Court against the Council for Higher Education’s policy is pending (HCJ 6500/17). 58 59

220  Constitutions and religion accommodations aimed at respecting the religious modesty practices of the UO. Thus, they claim, multicultural theory supports multicultural accommodations (the sex segregation), created in order to allow the integration of a minority community (the UO) in the liberal state (Israel). However, this justification is wrong in each of its three prongs and the aforementioned segregationist policies cannot be justified on the basis of liberal multicultural theory. The sex segregation cannot be considered a multicultural accommodation, since multicultural accommodations of an illiberal practice cannot be justified if they require the violation of the rights of individuals from outside the accommodated group – in this case, all women in Israeli society – whose access to the public sphere is restricted on the basis of their sex in order to accommodate UO men’s sensibilities. Similarly, the UO community cannot be considered a minority community for the purposes of multicultural accommodations. While a minority community in liberal multicultural theory is a disempowered community that needs the accommodation in order for its culture to survive, the UO community is a politically powerful community that controls Israel’s religious establishment and holds key positions in the Israeli government. Furthermore, unlike minority communities that may request accommodation of their illiberal practices, but do not aim to change the liberal structure of the state, the UO community is set on changing the liberal democratic structure of the state in Israel in order to make it more suitable to its radical religious ideology. Lastly, Israel is not a strong liberal state that can accommodate illiberal practices without endangering its liberal democratic foundations. As described above, the liberal democratic foundations of Israel are already weak due to the extensive role of the religious establishment, its coercive power over citizens and its authorization, which allows the UO and RZ officials who control it to impose their ever-radicalizing religious tenets on the population. Under such conditions, any accommodation given to the UO community that further buttresses and spreads the hold of its illiberal ideology directly undermines the liberal foundations of the state. The continuing spread of demands for sex segregation in the public sphere and the fact that the increasing demands of the UO for sex segregation have generated similar demands by conservative elements in the RZ community are an indication of this. Thus, in the army, RZ male soldiers are also exempted from serving with women in various units if they declare that they are prevented from serving alongside women for religious reasons. In academia, the current policy of allowing sex-segregated classes is restricted to members of the UO community. While a petition was filed by several university professors against the segregation policy and supported by human rights organizations, a counter-petition was filed to the court by conservative members of the RZ community, claiming that they too are religiously mandated to study in sex-segregated classes and asking the court to declare that such sex-segregated classes should be open to any student who desires to study in them.61

5. CONCLUSION Since its inception, Israel has tried to maintain a constitutional system in which liberal democratic rights and the power of orthodox Jewish religion both play a leading role. This attempt has proven to be fraught with difficulty in both theory and practice. The extensive state power granted to the Jewish religious establishment and its authorization in the area of personal laws

HCJ 8683/17 (pending).

61

Constitutionalism and religion in a Jewish and democratic state  221 have enabled it to violate the rights of all Jewish citizens and especially of women. Similarly, the authorization of the religious courts of other recognized religious denominations in the area of personal law has enabled them to violate the rights of citizens in their respective religious communities. In the areas in which religion was nationalized, the civil organs of the state have retained more power over the interpretation of religious concepts; but this power has also been diluted by the political power of the UO and the RZ communities, which have used this power to determine the influence of religion on civil law. Furthermore, the fact that in the area of religion-state relations, the Israeli constitutional system is not fully liberal, but only semi-liberal has important implications for the distinction between the public and the private spheres, and for the applicability of liberal multiculturalism to the Israeli situation. While the Supreme Court has been fairly attuned to the need to restrict the power of established religion in the public sphere as much as practicable, the court – together with other state institutions – has been much less alert to the danger that granting accommodations to the UO community on erroneous multicultural grounds poses to the already weak liberal democratic foundations of Israel and to the rights of all its citizens.

13. Reforming religion: the Indian Constitution, the courts and Hinduism Ronojoy Sen

1. INTRODUCTION In this chapter, I examine Articles 25 and 26 of the Indian Constitution, which could be termed the individual and collective freedom of religion clauses respectively, in relation to Hinduism, the majority religion of India. Unlike other secular constitutions, the Indian Constitution combines the freedom of religion clauses with a mandate to the state to intervene in religious affairs. Article 25 guarantees the right to “profess, practice and propagate religion,” but also permits the state to regulate “economic, financial, political or other secular activity associated with religious practice,” as well as provide for “social welfare and reform” of Hindu religious institutions. Article 26 guarantees religious denominations, among other things, freedom to manage their religious affairs. In this chapter I uncover1 the complexities and tensions of the constitutional position vis-à-vis Hinduism by looking at three aspects. First, I briefly examine the reasoning behind the relationship between state and religion by analyzing the debates in India’s Constituent Assembly, which drafted the Indian Constitution between 1946 and 1949. Second, I summarize the court rulings on the Indian state’s interventions in Hinduism, particularly with regard to temple management. I look at how the courts have interpreted the freedom of religion clauses with regard to Hinduism, focusing particularly on what is known as the “essential practices doctrine.” Third, I examine the right of religious sects or denominations to exit Hinduism. I argue that the twin imperatives of religious neutrality and reform of Hinduism are at the heart of the constitutional provisions regarding religion. They have led to several instances where the courts have been asked to intervene in matters related to Hinduism and have had a difficult time reconciling the twin imperatives of neutrality and reform enshrined in the Constitution.

2.

CONSTITUENT ASSEMBLY DEBATES

Though India is considered a constitutional secular nation, it was only in 1976, during the Emergency, that “secular” (as well as “socialist”) was inserted into the Preamble of the Constitution through the 42nd Amendment. The Constituent Assembly, which drafted the Indian Constitution between 1946 and 1949, is a good site to locate the thinking behind the Indian secular state.2 The Assembly debates represent an incredibly rich source for the think-

1 This chapter draws on Ronojoy Sen, Articles of Faith: Religion, Secularism, and the Indian Supreme Court (2010). 2 For details of the composition and functioning of the Constituent Assembly, see Granville Austin, The Indian Constitution (2000), ch. 1.

222

Reforming religion: the Indian Constitution, the courts and Hinduism  223 ing behind the Indian secular state. And one does not have to be an originalist to go back to the debates. As Rajeev Bhargava points out: The underlying point of secularism must have been articulated with a greater deal of perspicacity at that time than is possible even in this current phase of communalization. In short, to get a handle on current constitutional practices, to grasp their value and meaning, we may have no option but to go back in time to the Constituent Assembly debates and perhaps even further back to the colonial era.3

The Assembly debates reveal that there were real differences on the direction that Indian secularism should take. Though there were attempts to insert the term “secular state” in the draft Constitution on the one hand, and to begin the preamble by invoking God on the other, these did not succeed. Members such as H.V. Kamath, Govind Malaviya and S.L. Saxena wanted to begin the preamble to Indian Constitution with the phrase, “In the name of God.”4 After a heated discussion on the merits of this proposal, Kamath’s amendment was put to the vote and defeated. The same fate befell Brajeshwar Prasad’s proposal to begin the preamble with the following words: “We the people of India, having resolved to constitute India into a secular cooperative commonwealth to establish socialist order […].” However, several members of the Assembly, including B.R. Ambedkar, wanted to severely restrict the role of religion in the public sphere. Scientist K.T. Shah raised the demand that there be an article expressly stating that the Indian state has “no concern with any religion, creed or profession of faith.” He said: The State of India, if it claims to be secular, if it claims to have an open mind, should have, in my opinion, a right not merely to regulate and regulate such [religious] practices but also absolutely to prohibit them.5

He also proposed a strict separation where the Indian state “shall have no concern with any religion, creed or profession of faith,” which was rejected. Similarly, India’s future president, Sarvepalli Radhakrishnan, said during the debates: “Nationalism, not religion, is the basis of modern life.”6 On the other side, there were members such as Hindu traditionalist K.M. Munshi, who said the state must take into account the religiosity of Indians and articulated religious tolerance in Hindu terms: “We are a people with deeply religious moorings. At the same time, we have a living tradition of religious tolerance – the result of the broad outlook of Hinduism that all religions lead to the same god [...].”7 He felt that the non-establishment clause of the American constitution was “inappropriate to Indian conditions and we had to evolve a characteristically Indian secularism;” and that the Indian state could not “possibly have a state religion, nor could a rigid line be drawn between the state and church as in the US.”8 He added: “A secular state is not a Godless State. It is not a state which is pledged to eradicate or ignore religion. It

3 Rajeev Bhargava, Introduction, in Politics and Ethics of the Indian Constitution 12 (Rajeev Bhargava ed., 2008). 4 Constituent Assembly Debates, Vol. X, 439. 5 Constituent Assembly Debates, Vol. VII, 827. 6 B. Shiva Rao, The Framing of India’s Constitution: Select Documents, Vol. II 16 (1968). 7 K.M. Munshi, Indian Constitutional Documents, Vol. I 309 (1967). 8 Ibid.

224  Constitutions and religion is not a state which refuses to take notice of religious belief in this country.” Members such as H.V. Kamath expressed similar views. Ultimately, it was the “equal respect”9 theory – where the state respects and tolerates all religions – that won the day. This was also the Nehruvian formulation of secularism. This is a position that oscillates between sarvadharma samabhava (goodwill toward all religions) and dharma nirpekshata (religious neutrality). It is no secret that Jawaharlal Nehru saw religion as a force that checked the “tendency to change and progress.” But he did not let his personal convictions color his conception of the secular state. He wrote: “A secular state does not mean an irreligious state: it only means that we respect and honour all religions giving them freedom to function.”10 On another occasion, Nehru defined a “secular state” as one where there is “free play for all religions, subject only to their not interfering with each other or with the basic conceptions of our state.”11 This conception of a secular state is what Rajeev Bhargava describes as “principled distance,” which he believes is the primary characteristic of Indian constitutional secularism. In this interpretation, a secular state “neither mindlessly excludes all religions nor is merely neutral towards them.”12 There was a fair amount of debate on Articles 19 and 20, which were to be Articles 25 and 26 of the Indian Constitution. One of the most contentious aspects was the right to propagate religion, which was part of the right to religious freedom. But even before the debates began, there was a disagreement on the draft article on freedom of religion pertaining to propagation of religion. Not only did it not include the right to propagate religion, but there were clauses proposed by K.M. Munshi that imposed restrictions on the right to convert. These were amended after protests by Christian members of the Fundamental Rights Sub-Committee, but in the final draft sent to the Constituent Assembly there was a clause specifying that “conversion from one religion to another brought about by coercion or undue influence shall not be recognized by law.” During the debates of the Draft Constitution in the Assembly, one of the most virulent critics of putting down propagation of religion as a fundamental right was Lokanath Misra. He blamed propagation of religion for the “unfortunate” situation that India found itself to be in: You know that propagation of religion brought India into this unfortunate state and India had to be divided into Pakistan and India. If Islam had not come to impose its will on this land, India would have been a perfectly secular state and a homogenous state. There would [be] no question of Partition. Therefore, we have rightly tabooed religion. And now to say that as a fundamental right everyone has a right to propagate his religion is not right.13

He went on to raise the specter of the right to propagate “paving the way for the complete annihilation of Hindu culture, the Hindu way of life and manners [...].”14 Some members, such as Purshottamdas Tandon, accepted the right to propagate, but only grudgingly: 9 I borrow this term from Shefali Jha, Secularism in the Constituent Assembly Debates: 1946–50, Economic and Political Weekly (July 27, 2002). 10 Jawaharlal Nehru’s Speeches V (New Delhi: Publications Division, Ministry of Information and Broadcasting, Government of India) (1967), 59. 11 Sarvepalli Gopal, Jawaharlal Nehru: An Anthology 327 (1980). 12 Rajeev Bhargava, India’s Secular Constitution, in India’s Living Constitution: Idea, Practices, Controversies 117 (Zoya Hasan et al. eds., 2002). 13 Constituent Assembly Debates, Vol. VII, 822. 14 Ibid., 824.

Reforming religion: the Indian Constitution, the courts and Hinduism  225 Generally, we, Congressmen, do not think it at all right – I say so frankly – that people should strenuously go about trying to convert people of other faiths into their own, but we want to carry our Christian friends with us [...].15

Others, such as T.T. Krishnamachari, rebutted the claim that only Christians and Muslims were involved in spreading their religion. Krishnamachari said: It is perfectly open to the Hindus and the Arya Samajists to carry on their Suddhi propaganda as it is open to the Christians, the Muslims, the Jains and Buddhists and to every other religionist, so long as he does it subject to public order, morality and the other conditions that have to be observed in any civilized government.16

Eventually, the word “propagate” was retained and restrictions on the right were scrapped. This had earlier been welcomed by Christian members, such as Jerome D’Souza, who said that the final article on freedom of religion was “so reassuring and encouraging to the minorities, that we have no reason at all to quarrel or to ask for stronger assurances.”17 There were other practices associated with different religions, such as personal laws, as well as those that had special significance for Hindus, such as cow slaughter, which exercised the Assembly. On the first issue, the Assembly decided that personal laws would not be touched, though the goal of a uniform civil code was a desirable one. On the second, the Assembly did not impose an outright ban on cow slaughter. Both these issues found their way into the Directive Principles of State Policy in the Indian Constitution, comprising 16 articles (Articles 36–51), which are a special, though not unique, feature of the Constitution. The Directive Principles are not “enforceable by any court;” but at the same time, it is the “duty of the State to apply these principles in making laws.” This is in contrast to the Fundamental Rights of the Indian Constitution, where judicial enforcement is guaranteed. In the case of personal laws, Article 44 enjoins the state to “endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Regarding cow slaughter, Article 48 states: The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.

As the language of the articles makes clear, on one level, the article was directed at improvement in agriculture and food yields; but on another, it was a concession to the Hindu reverence for cows. The phrasing did not satisfy Hindu traditionalists, with one of them – Thakur Das Bhargava – complaining: “It is now simply a utilitarian measure but still a measure in which the religious sentiments of crores of people are involved.” On the opposite side, a Christian member, Frank Anthony, too pointed out the “insidious” manner in which the issue of cow slaughter had been brought into the Constitution: If it [cow slaughter] offends your religious susceptibilities, just as much as I expect you to respect my religious susceptibilities. I am prepared to respect yours. As I said, why bring it in, in this indirect way, as an afterthought into the Directive Principles?

Constituent Assembly Debates, Vol. III, 493. Constituent Assembly Debates, Vol. VII, 836. 17 Constituent Assembly Debates, Vol. III, 497. 15 16

226  Constitutions and religion The issues of both uniform civil code and cow slaughter have invited judicial intervention in independent India. The Supreme Court has ruled on the legality of laws in different Indian states aiming to curb cow slaughter. The issue of personal laws and uniform civil code remains controversial – partly because Hindu personal law was codified to a great extent by the mid-1950s, whereas Muslim personal law continues to be governed by the colonial-era 1937 Shariat Act.

3.

THE ESSENTIAL PRACTICES DOCTRINE

Since the introduction of the Madras Hindu Religious and Charitable Endowment (HRCE) Act in 1951, when a new department headed by a commissioner was created to supervise temples and maths, several other states have followed suit.18 Legal challenges to these statutes have meant that the courts are frequently asked to decide on what constitutes an “essential part of religion” and is thus off limits for state intervention; and what is “extraneous or unessential” and thus something in which the state can interfere. Some legal scholars have labeled the court’s attempts to define what is fundamental to any religion the “essential practices” doctrine.19 In effect, the essential practices doctrine has become the court’s standard method of distinguishing between the religious and the secular. The essential practices test has been used by the court to decide a variety of cases. These can broadly be classified under a few heads. First, the court has had recourse to this test to decide which religious practices are eligible for constitutional protection. Second, the court has used the test to adjudicate the legitimacy of legislation for managing religious institutions. Finally, the court has employed this doctrine to judge the extent of independence that can be enjoyed by religious denominations. The essential practices doctrine was first articulated in independent India in Commissioner, Hindu Religious Endowments, Madras v Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt,20 also known as the Shirur Mutt case. It is important to consider this case in some detail, since it has become obligatory to cite Shirur Mutt in most cases related to the reform of Hindu religious institutions. Shirur Mutt not only enunciated the meaning of “religion”, as protected by the Constitution, but also set forth guidelines as to what qualified as a religious denomination. In Shirur Mutt, the petitioner – the superior or mathadhipati (also referred to as mahant) of Shirur Mutt – challenged the Madras HRCE Act,21 on the principal ground that it infringed

18 In 1960, the central government appointed a Hindu Religious Endowments Commission to report on the administration of Hindu religious endowments. In its report submitted in 1962, the panel recommended the enactment of legislation for state supervision of temples in states which did not already have such laws. 19 Rajeev Dhavan and Fali Nariman, The Supreme Court and Group Life: Religious Freedom, Minority Groups, and Disadvantaged Communities, in Supreme but not Infallible: Essays in Honour of the Supreme Court of India (B.N. Kirpal et al. eds., 2000). Since the essential practices test has been used, with a few exceptions, to judge the constitutionality of Hindu practices, this chapter primarily looks at the judicial discourse on Hinduism and Hindu practices. 20 (1954) Supreme Court Appeals (SCA) 415. 21 For background to the HRCE Act and the state’s efforts to regulate temples, see Franklin A. Presler, Religion Under Bureaucracy: Policy and Administration for Hindu Temples in India

Reforming religion: the Indian Constitution, the courts and Hinduism  227 Article 26 of the Constitution. Before dealing with the provisions of the Act, the court asked a central question: “Where is the line to be drawn between what are matters of religion and what are not?”22 To come up with a working definition of “religion,” Justice B.K. Mukherjea, who wrote the judgment, drew on examples from the United States and Australia. He rejected the definition of “religion” offered by the US Supreme Court in Davis v. Beason: The term religion has reference to one’s views of his relation to his Creator, and to the obligations they impose of reverence for His Being and character, and of obedience to his will. It is often confounded with cultus of form or worship of a particular sect, but is distinguishable from the latter.23

The court pointed out the inadequacy of this definition in the Indian context by noting that there are major religions like Buddhism or Jainism “which do not believe in God or in any Intelligent First Cause.”24 Instead, Mukherjea drew on the Adelaide Company v. Commonwealth judgment in Australia, where the court said the Constitution protected not only “liberty of opinion,” but also “acts done in pursuance of religious belief as part of religion.”25 Collapsing the belief-practice dichotomy, he observed: A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion [...].26

According to Mukherjea, the American and Australian Constitutions imposed no limitations on the right to freedom of religion. It was the American and Australian courts that introduced the limitations on the grounds of “morality, order and social protection.”27 Mukherjea, however, believed that the Indian Constitution was an improvement on other constitutions, since it clearly laid out what could be regarded as religion: Our Constitution-makers, however, have embodied the limitations which have been evolved by judicial pronouncements in America or Australia in the Constitution itself and the language of Articles 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what do not.28

According to the court, “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”29 This “essential part” of religion is protected by the Constitution: (1987) and Chandra Y. Mudaliar, The Secular State and Religious Institutions A Study of the Administration of Hindu Public Religious Trusts in Madras (1974). 22 1954 SCA 430. 23 Davis v. Beason, 133 U.S. 333 (1890). Cited in 1954 SCA 430. 24 1954 SCA 431. 25 67 C.L.R. 116, 127. 26 1954 SCA 431. 27 Ibid., 434. 28 Ibid., 434. 29 Ibid., 432.

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228  Constitutions and religion Under Article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.30

However, the state can legitimately regulate religious practices when they “run counter to public order, health and morality;” and when they are “economic, commercial or political in their character though they are associated with religious practices.”31 Shirur Mutt was also a landmark judgment because it validated a major portion of the Madras HRCE Act, which was the first state law to put in place an elaborate regulatory mechanism for Hindu temples and maths. Several other states followed suit with similar statutes, which were also taken to court; but Shirur Mutt has remained the model for the court. There is no need here to go into the details of the Shirur Mutt judgment regarding the Madras HRCE Act. It is noteworthy that the court in large measure gave its approval to the state control of Hindu temples and religious institutions. The primary contribution of Shirur Mutt to the legal discourse on religion was the recognition that “protection under Articles 25 and 26 was not limited to matters of doctrine or belief only but extended to acts done in pursuance of religion and therefore contained guarantees for rituals, observances, ceremonies and modes of worship.”32 Another important principle enunciated by Mukherjea was the “complete autonomy” granted to religious denominations to decide which religious practices were essential for them. Finally, Shirur Mutt is a landmark case because it contained a contradictory trend – though the judgment is celebrated for widening the definition of “religion” to include rituals and practices, at the same time it sanctioned an elaborate regulatory regime for religious institutions. This anomaly has been noted by P.K. Tripathi: “In the final analysis, therefore, articles 25 and 26 do not emerge from the judgment in the Swamiar case as very effective weapons of attack on social legislation affecting the management of religious institutions.”33 Although a broad definition of “religion” was laid out in Shirur Mutt, the subsequent judgments of the Supreme Court would circumscribe the religious practices that were guaranteed constitutional protection. Among cases in the early 1960s that would substantially reformulate the essential practices doctrine was Shri Govindlalji v. State of Rajasthan,34 where the Tilkayat Govindlalji – the traditional spiritual head of the Nathdwara temple in Rajasthan – challenged the constitutionality of the Nathdwara Temple Act. One of the grounds for challenging the Act was infringement of Articles 25, 26(b) and 26(c), since it was claimed that the temple was a private temple owned and managed by the Tilkayat as head of the Vallabh denomination. By reconstructing the doctrine of the Vallabha school and the history of the temple, the court held that the temple was private and that the Tilkayat was “merely a custodian, manager and trustee of the temple.” The court endorsed the Act, laying special emphasis on a firman (order) issued by the ruler of Udaipur in 1934, which declared that the royal court had absolute rights to supervise the temple and its property and even depose the Tilkayat if necessary.

Ibid., 435. Ibid., 432. Mudaliar, supra note 21, at 186. P.K. Tripathi, Secularism: Constitutional Provision and Judicial Review, in Secularism: Its Implications for Law and Life in India (G.S. Sharma ed., 1966). 34 AIR 1963 SC 1638. 32 33 30 31

Reforming religion: the Indian Constitution, the courts and Hinduism  229 While the outcome of Govindlalji was unexceptional, given the history of the court in sanctioning state regulation of religious institutions, Gajendragadkar in his judgment pointed out why the claims of a community regarding their religious practices could not always be accepted: In cases where conflicting evidence is produced in respect in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would therefore break down. The question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion.35

Though Gajendragadkar admitted that this approach might present some difficulties, since “sometimes practices, religious and secular, are inextricably mixed up,” he was confident that the court would be able to distinguish between religious and what was “obviously” a secular matter. Gajendragadkar thus rejected the argument of the senior advocate, representing the appellants, who quoted from the Australian court ruling in Jehovah’s Witness v. Commonwealth: “What is religion to one is superstition to another.” The court dismissed this proposition as of “no relevance:” If an obviously secular matter is claimed to be [a] matter of religion, or if an obviously secular practice is alleged to be a religious practice, the Court would be justified in rejecting the claim… a claim made by a citizen that a purely secular matter amounts to a religious practice, or a similar claim made on behalf of the denomination that a purely secular matter is an affair in matters of religion, may have to be rejected on the ground that it is based on irrational considerations and cannot attract the provisions of Art. 25(1) and Art. 26(b).36

The series of rulings in the early 1960s firmly established the principle that it was the court’s task to ascertain what constituted religious doctrine and practice. The Gajendragadkar rulings went further and specified that even practices that can be accepted as religious might be classified as superstition or irrational. Dhavan and Nariman’s assessment in 1997 sums up the situation as it was after Yagnapurushdasji: Judges are now endowed with a three step inquiry to determine, in tandem, whether a claim was religious at all, whether it was essential for the faith and, perforce, whether, even if essential, it complied with the public interest and reformist requirements of the Constitution.37

The role of the court in determining what constitutes religion as well as essential religious practice has remained undiminished since the formative years of this doctrine. Subsequent rulings have built on case law, but hardly ever reconsidered the doctrine of essential practices. The essential practices test was one of the major tools whereby the Supreme Court sanctioned a complex regulatory regime for Hindu temples. As has been noted earlier, in Shirur Mutt the Ibid., 1460–61. Ibid., 1461. 37 Dhavan and Nariman, supra note 19, at 260. 35 36

230  Constitutions and religion court gave its approval to the bulk of the Madras HRCE Act. Soon after the Madras HRCE Act, most states in India put in place regulatory mechanisms in place for Hindu religious institutions. Though many of these state laws were challenged, the court usually approved them with minor alterations. One of the consequences of this has been the bureaucratization of religion, with state-appointed officers taking over the running of temples at the expense of traditional authorities. The undermining of traditional heads of temples such as the Nathdwara or the Jagannath temple at Puri had already begun from the 1960s. Temple functionaries like the archakas (priests) and other intermediaries like pandas and sevaks (attendants) have also been severely affected. E.R.J. Swami v. State of T.N.38 was one of the first cases where the hereditary principle for temple priests was held to be void. There was a spate of litigation in the 1990s centered on major Hindu shrines like Tirupathi, Vaishno Devi, Jagannath and Kashi Vishwanath.39 Justice K. Ramaswamy handed down the majority of the judgments, where challenges to the extensive state regulation of these temples were dismissed. This led Dhavan and Nariman to observe: “If the regulatory impetus provided by Justice B.K. Mukherjea in the fifties was enlarged by Justice Gajendragadkar in the sixties, the latest judgments of Justice K. Ramaswamy have enthusiastically supported the ‘nationalization’ of some of India’s greatest shrines.”40 Another significant effect of the essential practices doctrines has been the marked disinclination of the court to accept the practices of religious groups of recent origin. In a case involving the Ananda Margis,41 the court decided that the Ananda Margis were a religious denomination. However, in Acharya Jagadishwarananda v. Police Commissioner, Calcutta,42 the court refused to accept the tandava dance as an essential practice of the Ananda Margis, reasoning that: [the] Ananda Marga as a religious order is of recent origin and tandava dance as a part of religious rites of that order is still more recent. It is doubtful as to whether in such circumstances tandava dance can be taken as an essential religious rite of the Ananda Margis.43

The court had occasion again in 2004 to take up the issue and further narrowed the scope of essential practices to mean the foundational “core” of a religion. Justice A.R. Lakshmanan, however, notably dissented. Harking back to Shirur Mutt, he said: What would constitute an essential practice of religion or religious practice is to be determined with reference to the doctrine of a particular religion which includes practices which are regarded by the community as part and parcel of that religion.44

AIR 1972 SC 1586. See, for example, Bhuri Nath v. State of J&K, 1997 (2) SCC 745; Shri Jagannath Puri Management Committee v. Chintamani Khuntia, 1997 (8) SCC 422; and Sri Adi Visheshwaran of Kashi Nath v. State of U.P., 1991 (4) SCC 606. A more recent case involving management of the Guruvayoor temple was M.P. Gopalakrishnan v. State of Kerala, 2005 (11) SCC 45. 40 Dhavan and Nariman, supra note 19, at 263. 41 The Ananda Marga was founded in 1955 by a Bengali, Prabhat Ranjan Sarkar, who later came to be known by his followers as Shri Anandamurti. The organization has had a controversial history and has in the past been accused of violent acts. 42 AIR 1984 SC 51. 43 Ibid., 57. 44 Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, 2004 (12) SCC 806. 38 39

Reforming religion: the Indian Constitution, the courts and Hinduism  231 A shift in the court’s dominant line of thinking can be discerned in a more recent case involving a mining project in Niyamgiri Hills, Orissa, which was seen to be infringing on land considered sacred by the local tribals. In Orissa Mining Corporation Ltd. v. Ministry of Environment and Forests, the Supreme Court deliberated on whether the religious rights of the inhabitants of Niyamgiri, such as the Dongaria Kondh, were being affected. The court ruled that the question of whether tribal and forest dwellers had rights of worship over the Niyamgiri Hills had to be considered by local elected bodies such as the gram sabha.45 Despite the occasional deviation, such as the judgment on Niyamgiri, Mehta is right in his assessment of the courts when he says they “tell us not only what public purposes ought to be authoritative constraints on behavior but also which interpretation of religious doctrine should be considered authoritative.”46

4.

THE RIGHT TO EXIT HINDUISM

One of the landmark cases in independent India where the issue of religious denominations to exit Hinduism came into sharp focus was Yagnapurushdasji v. Muldas,47 also known as the Satsangi case. The 1966 case involved the Satsangis or followers of Swaminarayan (1780–1830), who claimed that their temples did not fall under the purview of the Bombay Harijan Temple Entry Act, 1948. The Act provided that every Hindu temple shall be open to Harijans or untouchables. By the time the case reached the Supreme Court via a trial court and the Bombay High Court, the Central Untouchability (Offences) Act of 1955 had already come into effect. The case made by the Satsangis was that the “Swaminarayan sect represents a distinct and separate religious sect unconnected with the Hindus and Hindu religion, and as such, their temples were outside the purview of the said Act.”48 The Satsangis claimed separate status on four grounds. First, they argued that Swaminarayan, the founder of the sect, considered himself as Supreme God. Second, it was urged that the Satsangi temples could not be regarded as Hindu temples, since they were used to worship Swaminarayan and not any traditional Hindu deity. Third, it was pointed out that the Satsangis propagated the idea that worship of any god other than Swaminarayan was a betrayal of faith. Finally, it was contended that there was a procedure of initiation (diksha) into the Swaminarayan sect by which a devotee assumed a distinct and separate identity. The court rejected the contention of the Satsangis by concluding: In our opinion, the plea raised by the appellants that the Satsangis who follow the Swaminarayan sect form a separate and distinct community different from the Hindu community and their religion is a distinct and separate religion different from Hindu religion is entirely misconceived.49

However, the examination of the religious practices of the Satsangis was somewhat incidental in the court’s ruling. Yagnapurushdasji was far more critical for the Supreme Court’s construction of Hinduism, a construction that has since become hegemonic in judicial discourse. 2013 (6) SCC 513. In fact, the local elected body decided against the mining project. Mehta, “Passion and Constraint,” Seminar 521, January 2003, 330. 47 AIR 1966 SC 1119. For a close reading of the case, see Marc Galanter, Law and Society Modern India (1993), ch. 10. 48 AIR 1966 SC 1121. 49 Ibid., 1134. 45 46

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232  Constitutions and religion Writing for the court, Chief Justice P.B. Gajendragadkar – who had already authored some of the most important judgments on the question of freedom of religion – proceeded to enquire, “what are the distinctive features of Hindu religion?”50 At the same time, he admitted that the question “appears to be somewhat inappropriate within the limits of judicial enquiry in a court of law,”51 but he did not allow that to deter him. Drawing primarily from English language sources, the court put forward the view that Hinduism was “impossible” to define: When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one God; it does not subscribe to any one dogma; it does not believe in one philosophic concept; it does not follow any one set of religious rites.

Confronted with this amorphous entity, the court concluded: “It [Hinduism] does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more (italics added).”52 Once the civilizational or cultural view of Hinduism was posited, it was not difficult for the court to construct an all-encompassing version of Hinduism that included a variety of creeds and sects. Hence, any reform movements – including Buddhism, Jainism and Sikhism – were seen as merely different sects within Hinduism: The development of Hindu religion and philosophy shows that from time to time saints and religious reformers attempted to remove from the Hindu thought elements of corruption and superstition and that led to the formation of different sects [...] If we study the teachings of these saints and religious reformers, we would notice an amount of divergence in their respective views: but underneath that divergence, there is a kind of subtle indescribable unity which keeps them within the sweep of the broad and progressive Hindu religion.53

Gajendragadkar’s view is, in fact, enshrined in the Constitution, where Explanation II appended to Article 25 says that the “reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion.” It is noteworthy that the court could well have decided Yagnapurushdasji without going into a detailed exegesis of Hinduism. As Marc Galanter has pointed out in his analysis of Yagnapurushdasji, the court could have decided the case with reference to Article 25(2)(b) of the Constitution, which empowers the state to overcome caste and denominational barriers within Hinduism.54 In any case, in an earlier judgment, the court had said temple entry acts prevail over denominational claims to exclude outsiders.55 In Yagnapurushdasji, the court used a variety of sources to define “Hinduism.” Robert Baird describes the court’s reasoning thus:

52 53 54 55 50 51

Ibid., 1127. Ibid., 1128. Ibid., 1128. Ibid., 1130. Galanter, supra note 47, at 247. Venkatramana Devaru v. State of Mysore, AIR 1958 SC 255.

Reforming religion: the Indian Constitution, the courts and Hinduism  233 All of the authorities to whom appeal is made stress the wide range of Hindu belief and practice. That which had been the obstacle to constructing a model of Hinduism which would fit the concrete data is turned into one of its major characteristics – it is inclusive.56

Radhakrishnan, who first wrote about Hinduism being a “way of life,” in particular has played a crucial role in shaping the court’s conception of Hinduism. The importance of Yagnapurushdasji was that the court was interpreting Hinduism as an inclusivist religion, drawing heavily from the ideas of Sarvepalli Radhakrishnan and his intellectual predecessors. In this sort of usage, certain features of Hinduism are most important: tolerance, universality, a classical core and a search for a fundamental unity. The court’s views on Hinduism and its inclusive nature recurred in subsequent judgments. In several important later judgments, the Supreme Court relied on the construction of Hinduism as elaborated in Yagnapurushdasji.57 Since Yagnapurushdasji, claims put forward by different Hindu sects to be regarded as a separate religion have not found favor with the court. The more prominent cases included the denial of the status of a separate religion status to the Arya Samaj58 and Ramakrishna Mission,59 the latter being accorded a “religious minority” – that is, separate religion – status by the Calcutta High Court, only to have it changed to a religious denomination status by the Supreme Court. Similarly, the followers of Sri Aurobindo were told that they were not members of a religious group. Ruling on the legitimacy of the Auroville60 (Emergency Provisions Act) Act of 1980, Justice R.B. Misra, writing for the majority, wrote that “there is no room for doubt that neither the Society nor Auroville constitutes a religious denomination and the teachings of Sri Aurobindo only his philosophy and not a religion.”61 More recently, the court dismissed the claims of Jains for minority status: The so-called minority communities like Sikhs and Jains were not treated as national minorities at the time of framing the Constitution. Sikhs and Jains, in fact, have throughout been treated as part of the wider Hindu community which has different sects, sub-sects, faiths, modes of worship and religious philosophies.62

56 Robert D. Baird, On Defining ‘Hinduism’ as a Religious and Legal Category, in Religion and Law in Independent India 50 (Robert D. Baird ed., 1993). 57 In Ganpat v. Returning Officer the court said: “It is necessary to remember that Hinduism is a very broad based religion. In fact some people take the view that it is not a religion at all on the ground that there is no founder and no one sacred book for the Hindus. This, of course, is a very narrow view merely based on the comparison between Hinduism on the one side and Islam and Christianity on the other. But one knows that Hinduism through the ages has absorbed or accommodated many different practices, religious as well as secular, and also different faiths.” AIR 1975 SC 423. 58 D.A.V. College, Bhatinda v. State of Punjab, AIR 1971 SC 1731. 59 Bramchari Sidheshwar Shai v. State of West Bengal, AIR 1995 SC 2089. 60 Auroville is a township in Pondicherry founded by a French follower of Aurobindo, M. Alfasse, who is also known as the Mother by Aurobindo devotees. 61 S.P. Mittal v. Union of India. AIR 1983 SC 30. 62 Bal Patil v. Union of India, AIR 2005 SC 3172.

234  Constitutions and religion

5. CONCLUSION The Indian Constitution has, through Articles 25 and 26, attempted the difficult task of reconciling freedom of religion with an agenda to reform and modernize Hinduism. This has resulted in litigation over issues such as state involvement in temple management, which religious practices merit constitutional protection and the right of groups to exit Hinduism. One of the most important devices used by the court to adjudicate on these questions has been the essential practices doctrine. It continues to be one of the most debated aspects of the court’s jurisprudence on Hinduism and its attempts to balance religious freedom with reform. There have been several instances over the past decade or so where the court has used the doctrine. A high-profile case involving the essential practices doctrine concerned the restriction on the entry of women between the age of 10 and 50 – on the grounds that menstruating women are considered “impure” – into Kerala’s famous Sabarimala temple dedicated to Lord Ayyappa. The Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965 contains a clause which states that “women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship.” A 1991 Kerala High Court ruling had upheld the restriction, saying it was a practice that had existed since “time immemorial.”63 Deepa Das Acevedo has noted that the high court ruling provided a window into the judicial reasoning in matters of religion and essential practices, namely “faith over custom, prescription over description, and old over new.”64 In October 2017 the Supreme Court referred the issue, based on a 2006 petition, to a five-judge Constitution Bench.65 While referring the case to the Constitution Bench, a three-judge bench, which included the chief justice, said the larger bench would decide whether the restriction qualifies as an “essential religious practice” of the Hindu faith, over which the court had no jurisdiction. The Constitution Bench would also decide two further issues: whether Ayyappa devotees form a separate religious denomination by themselves; and whether a temple managed by a statutory board can ban women from entry on moral grounds. The Supreme Court passed its judgment on the Sabarimala case in 2018. In Indian Young Lawyers Association v. the State of Kerala, the court, in a four-to-one ruling, declared that the temple practice violated the rights of Hindu women and amounted to gender discrimination.66 In the majority judgment, Chief Justice Dipak Misra, writing for himself and Justice A.M. Khanwilkar, further ruled: “The practice of exclusion of women of the age group of 10 to 50 years being followed at the Sabarimala Temple cannot be regarded as an essential part.” However, in a dissenting judgment, Justice Indu Malhotra – the only woman on the five-judge bench – introduced the essential practices test to reach the opposite conclusion. She ruled:

S. Mahadevan v. Secretary, Travancore Devaswom Board, AIR 1993 Ker 42. Deepa Das Acevedo, Celibate Gods and “Essential Practices” Jurisprudence at Sabarimala, 1991–2011, in Filing Religion: State, Hinduism, and Courts of Law 121 (Daniela Berti et al eds., 2016). 65 http://​supremecourtofindia​.nic​.in/​supremecourt/​2006/​18956/​18956​_2006​_Judgement​_13​-Oct​ -2017​.pdf, last accessed March 30, 2019. 66 See www​.sci​.gov​.in/​supremecourt/​2006/​18956/​18956​_2006​_Judgement​_28​-Sep​-2018​.pdf, last accessed March 30, 2019. 63 64

Reforming religion: the Indian Constitution, the courts and Hinduism  235 The ‘essential practices’ test in its application would have to be determined by the tenets of the religion itself. The practices and beliefs which are considered to be integral by the religious community are to be regarded as ‘essential’, and afforded protection under Article 25 [...] If any practice in a particular temple can be traced to antiquity, and is integral to the temple, it must be taken as an essential religious practice of the temple.

The judgment triggered such a political and public backlash that the Supreme Court was, at the time of writing, hearing review petitions. The Bombay High Court has overturned similar bans on the entry of women into temples in Maharashtra. Ruling in a public interest litigation seeking the entry of women into the sanctum sanctorum of the Shani Shignapur temple, the Bombay High Court in 2016 ruled: There is no law that prevents entry of women in any place. If you allow men, then you should allow women also. If a male can go and pray before the deity, why not women? It is the State government’s duty to protect the rights of women.

Thus, the essential practices test – one of the key elements of the Supreme Court’s jurisprudence on religion – continues to be used by the court in determining a wide variety of cases, from temple entry to Jain practices such as santhara. The question is whether the doctrine is peculiar to the Indian Supreme Court. Shylashri Shankar has traced the use of the essential practices by the judiciary in Pakistan and Malaysia.67 But it might be argued that most constitutional courts, without necessarily using the language and methods of Indian judges, are often forced to decide on the legitimacy of religious practices as claimed by believers. This can be seen, for instance in the U.S. Supreme Court’s large body of jurisprudence on religious liberty or the free exercise clause, from the landmark Reynolds v. United States (1879)68 ruling to the more recent Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal (2006).69 Indeed, there are several cases – including landmark ones such as Wisconsin v. Yoder (1972) and Employment Division v. Smith (1990)70 – where the U.S. Supreme Court has passed judgment on the legitimacy of religious practices. Scholars such as Winnifred Fallers Sullivan – author of the provocatively titled The Impossibility of Religious Freedom – have argued that Smith, where the court ruled that an individual’s religious belief of ingesting a drug did not excuse him from compliance with generally applicable laws, was a game changer. It led to the passage of the Religious Freedom Restoration Act in 1993, which “intended to reinstate the compelling interest test for religious exemptions,”71 as well as a host of other laws intended to protect freedom of religion. Sullivan argues against the traditional view that the U.S. Supreme Court does not sit in judgment on religious truth or error, by noting:

67 Shylashri Shankar, A Juridical Voyage of ‘Essential Practices of Religion’ from India to Malaysia and Pakistan, 60 American Behavioral Scientist 941–65 (2016). 68 98 U.S. 145 (1879). 69 546 U.S. 418 (2006). 70 494 U.S. 872 (1990). 71 Winnifred Fallers Sullivan, The World that Smith Made, The Immanent Frame: Secularism, Religion and the Public Sphere (March 7, 2012), https://​tif​.ssrc​.org/​2012/​03/​07/​the​-world​-that​-smith​ -made/​, last accessed March 30, 2019.

236  Constitutions and religion These laws [RFRA and the rest] promised a broad deference to religious reasons that had never, in fact, been available under the Supreme Court’s religion clause jurisprudence and that was impossible to implement. They invited a regime under which courts would necessarily have to do the impossible, that is distinguish an exercise of religion, necessarily dividing good religion from bad religion, all the while denying that that was what they were doing, a regime the Smith Court recognized as unworkable and refused to endorse.72

Elsewhere, Sullivan is more categorical when she says: “Secular law implies a subordination and submersion of religion.”73 Jakob De Roover sums up well the dilemma that secular courts are faced with: Secular law confronts a major quandary whenever it has to decide whether some practices or beliefs are religious. Being secular, law is expected to be neutral towards all religions in its judgment as to what counts as religion. Yet, when courts determine that some practices are not religious and, hence, do not fall under the scope of religious freedom, or do not deserve state funding or tax exemption, the failure to be religious neutral seems inevitable. No court possesses an impartial scientific conception of religion; there are no shared secular criteria that enable one to identify and delimit the sphere in a manner neutral to all religions. Consequently, in such cases, judges and other secular authorities are bound to smuggle in one particular theological conception of religion.74

This dilemma lies at the heart of the essential practices doctrine. Without explicitly using the language of essential practices, many constitutional courts are, however, having to deal with religious freedom cases in a manner similar to the Indian courts. By doing so, courts run the risk of bypassing constitutional values or trampling freedom of religion. Looking ahead, this tendency is likely to be more pronounced, especially in India, where the court’s use of essential practices with regard to Hinduism could continue unabated. This is due to several reasons: the reformist character of the Indian Constitution; the deep involvement of the state in affairs of Hinduism; and the role of an activist court as the only credible arbiter on matters of faith and religion.

72 Winnifred Fallers Sullivan, The Impossibility of Religious Freedom, The Immanent Frame: Secularism, Religion and the Public Sphere (July 8, 2014), https://​tif​.ssrc​.org/​2014/​07/​08/​ impossibility​-of​-religious​-freedom/​, last accessed March 30, 2019. 73 Winnifred Fallers Sullivan, The Impossibility of Religious Freedom 153 (2005). 74 Jakob de Roover, Secular Law and the Realm of False Religion, in After Secular Law 43 (Winnifred Fallers Sullivan et al. eds., 2011). See also Jakob De Roover, Europe, India and the Limits of Secularism (2015).

14. Three models of church-state relations in contemporary Russia Kristina Stoeckl

1. INTRODUCTION On November 4, 2017, a monument to Vladimir the Great – the medieval prince who was baptized on Crimea and from there initiated the baptism of the Rus’ in 988 – was unveiled in Moscow.1 The monument is placed just outside the Kremlin walls and political commentators did not fail to notice the highly political message of this commemoration. Vladimir’s act of conversion to Christianity and the subsequent “baptism of the Rus’” have historically taken place on the Crimean Peninsula; laying a claim to the memory of Vladimir and erecting a monument as a rival to that in Kiev in the Russia of 2016 was an easy-to-decipher strategy by the government to underscore Russia’s claim to the Crimean territory, which it annexed in 2014. In the context of this chapter, however, it was another detail of this celebration which merits our attention. The inauguration of the monument was attended by a number of selected Russian religious leaders. The selection and the hierarchy of their appearance showcase Russia’s model of selective religious establishment. The religious leaders present were the Patriarch of Moscow Kirill; the Chairman of the Council of Muftis of Russia Ravil Gaynutdin; the Chief Mufti and Head of the Central Spiritual Directorate of Muslims of Russia Talgat Tadzhuddin; the Chief Rabbi of Russia Berl Lazar; the Head of the Russian Orthodox Old-Rite Church Korniliy; the Archbishop of the Roman Catholic Archdiocese of Moscow Paolo Pezzi; and the leader of traditional Buddhist Sangkha of Russia Bandida Khambo-lama Damba Ayusheyev. The group picture shows the patriarch standing up front next to President Vladimir Putin and the other religious leaders lined up in the first row of the audience. As they were standing there – each of them in a colorful garb or conspicuous hat that made it easy even for the lay observer to decipher which religion he represented – their presence was the epitomized visual expression of the current state of religion-state relations in Russia: the state identifies with Orthodoxy, with the president and the patriarch at the top; other religions are bystanders and minor partners. Post-Soviet Russia is a secular state by its Constitution. Its current law on religious freedom from 1997 qualifies it as a country with a selective religion-state cooperation model, similar to many other European countries. However, in this chapter I argue that two more religion-state models are at play in the Russian context: a state-church model and disestablishment. These

1 The original version of this chapter was published in Russian in the journal Gosudarstvo, Religiya i Tserkov v Rossii i za rubeshom (October 2018). The first draft of the argument was presented at the Workshop “Religious freedom and the varieties of religious establishment” at the Lichtenberg Kolleg University of Göttingen Institute for Advanced Studies on June 9, 2017. This chapter has received funding from the European Research Council under the European Union’s Horizon 2020 research and innovation programme (POSEC, Grant Agreement ERC-STG-2015-676804).

237

238  Constitutions and religion other two models are not official, but they are politically cogent and effectively shape religion-state interactions. In this chapter, I explore the three models of church-state relations in Russia from the perspective of the Russian Orthodox Church.2 As I look at the Russian Orthodox Church as a political actor, I distinguish different levels of political activism inside the church: the Patriarchate of Moscow, different branches of the ecclesiastical hierarchy and various activist groups of believers. These different political faces of the Russian Orthodox Church interact with the Russian state in different ways: the patriarchate frequently acts as if the Russian Orthodox Church were a state church and representative of the country as such; on specific policy issues, the same patriarchate seeks cooperation with the state and presents the Russian Orthodox believers as a minority in need of protection; and particular groups inside the church see themselves in a situation of disestablishment, in which Russian Orthodoxy acts like an antagonist of the secular state engaged in a “culture war.” These three models of church-state relations coexist in today’s Russia and are complicated even further by adjacent legislation, ideology and bureaucracy. In this chapter, I will first explain the three models of religion-state relations discussed here in general terms, drawing on literature from comparative politics and sociology of religion. Then I apply these models to the case of the Russian Orthodox Church, using selected empirical examples for illustration of my argument. Several of these examples belong to the sphere of the Russian Orthodox pro-life movement. The chapter points out that the multiple strategies used by Orthodox pro-lifers in the Russian context are rooted in different, in part contradictory assumptions about the role of the church in the Russian state and society.

2.

THREE MODELS OF RELIGION-STATE RELATIONS: STATE-CHURCH; SELECTIVE COOPERATION; DISESTABLISHMENT

Following José Casanova,3 the concept of “public religions” offers a corrective to the secularization thesis’s assumption that modernization and secularization necessarily result in the privatization of religion. What Casanova showed was that religions can act as a powerful motor for the public and political engagement of believers; even in societies which in important respects are secularized – that is, which follow the pattern of separation of religion and state, privatization of religion and differentiation.4 Originally concentrated on the question how religion motivates civil society action, religions as institutions and organized political actors

2 A note on terminology: I speak of “religion-state relations” when I discuss the general models of interaction between religions and the state. I speak of “church-state relations” when I talk about my case, the Russian Orthodox Church and its relations to the Russian state. “Religion-state relations” is the more general term and subsumes also “church-state relations.” 3 José Casanova, Public Religions in the Modern World (1994). 4 See José Casanova, Secularization, in International Encyclopedia of the Social and Behavioural Sciences 13786–91 (Neil J. Smelser and Paul B. Baltes eds., 2001); Steve Bruce and Roy Wallis, Secularization: The Orthodox Model, in Religion and Modernization 8–29 (Steve Bruce ed., 1992); Ronald Inglehart, Modernization, Sociological Theories of, in Smelser and Baltes (eds.), supra in this note.

Three models of church-state relations in contemporary Russia  239 moved into the focus of research on public religions only subsequently. Casanova himself in 2008 enlarged the perspective on public religions to institutional religious actors.5 Public religions, at this point, become an object of sociological and political research as actors and institutions that engage in the public sphere. For the sociology of religion, this means that its research domain, frequently focused on “simple believers” or religious practices and applying either statistics or anthropological and ethnographical research methods, expands to include research of public religious actors and institutions. This political sociology of religions invites, in disciplinary terms, for a closer dialogue between sociology of religion and comparative politics and institutionalism.6 A political sociology of religions brings into focus the complicated reality of religion-state relations in most modern Western democracies. Even though almost all modern democracies implement a strict constitutional separation of state and religion, in most countries religions are to some degree recognized as institutions of public law: for example, in some countries churches and religious organizations enjoy tax exemptions; in others, religious education is a part of public school curriculums or the state contributes financially to the maintenance of the religious-cultural and architectural heritage of church buildings. The empirical interwovenness of religion and state in many liberal democracies stands in contrast to the ideal theory of state religious neutrality that is part of the political theory of liberalism. The political scientist John Madeley even speaks about the “chimera of neutrality” with regard to religion-state relations in Europe. He rightly observes that the religiously neutral state, which has become “the defining feature of liberalism,” is not the European norm at all and that “the heritage of the European confessional state is still around for all to see.”7 There is a considerable discrepancy between the liberal idea of state neutrality and actual regimes of religion-state relations in most European democracies, both in Western Europe and in South and Central-Eastern Europe: The occasionally bizarre and anomalous sets of arrangements which are conventionally referred to under the label ‘church–state relations’ can of course be dismissed as much less important than they are colourful. Alternatively, it can be argued that, in a period where religion-related controversies seem to have a rising profile, such anomalies deserve serious attention, not least from political scientists, who have tended collectively to ignore the subject. The fact of this neglect is perhaps all the more surprising because of the great stress given by normative political theorists of a liberal persuasion to the principle of the neutrality in matters of religion of the liberal democratic state and its arrangements. With this in mind one might have expected greater attention to be paid to the many different ways in which actual arrangements in Europe have deviated – and continue to deviate, some more, some less – from any feasible notion of neutrality.8

5 José Casanova, Public Religions Revisited, in Religion: Beyond the Concept 111 (Hent de Vries ed., 2008). 6 I use the term “political sociology of religions” (in the plural) differently from the “political sociology of religion” (in the singular) in Hans Joas, Die Macht des Heiligen. Eine Alternative zur Geschichte von der Entzauberung (2017). Joas assumes that religion continues to be a powerful force in secular societies and analyses the political consequences. My interest, instead, is the analysis of how religious actors act as political actors. I ask how religious actors get involved in politics, which strategies and arguments they use, and where they stand inside their own church, without assuming that political activism necessarily amounts to a position of power in state and society. 7 John T.S. Madeley, European Liberal Democracy and the Principle of State Religious Neutrality, 26 West European Politics 1–22 (2003). 8 John T.S. Madeley, A Framework for the Comparative Analysis of Church-state Relations in Europe, 26 West European Politics 4 (2003).

240  Constitutions and religion Madeley observes that the selective cooperation of the state with a limited number of state-recognized religious traditions is the rule in Europe, rather than the exception, and he adds that “in the USA, all of these commitments… would be deemed contrary to the First Amendment ban on establishment.”9 The observation that state neutrality vis-à-vis religions is not the norm, either in the European or in the global context, has been caught with the term “multiple secularisms” by Alfred Stepan.10 The different models of relationship between religions and the secular political sphere can be understood as a continuum.11 At one end of the continuum, there is the state church model in which the state recognizes one faith as state religion. Modern examples of state churches are the Orthodox Church of Greece, the Anglican Church of England and the Lutheran Church of Denmark. At the other end of the continuum is the disestablishment model, which maintains that the state is neutral toward all religions on its territory and grants equal status to all of them. The paradigmatic case is the United States; but the French model of laicité also aspires to complete state neutrality vis-à-vis religions.12 In between these two extremes – the state church model and complete disestablishment – there are many different types of selective cooperation models. These models generally implement a multi-layered regime of recognition of religions as bodies of public law and they tie this recognition to specific conditions that the religious communities must fulfill (e.g. a minimum number of faithful and a commitment to constitutional principles). Examples for countries with selective cooperation models in religion-state relations are Austria and Russia. It is important to note that all models along this continuum can, in principle, be compatible with a democratic political regime, but the three models imply starkly different modes of interaction between public religions and the state. In the next three paragraphs, I discuss each of these models in detail. State church models in Europe are historically rooted in one of the three mono-confessional “culture blocks:” the Lutheran North, Catholic South and Orthodox East.13 According to Madeley, state church models across Europe share important common features, but also differ significantly according to confessions. Among the similarities are the monopolistic regulation of religion by church and state authorities, a negative bias toward other religions (true even for the Nordic countries),14 social and cultural conservatism, and the attempt from the side of the churches to embrace worldly institutions and to guide them.15 Confessional differences explain, according to Madeley, that in the Orthodox East, state churches have traditionally been closely intertwined with politics and the state; whereas in the Protestant North, “the churches of the Reformation were more willing to accept the virtual privatization of religion,

Madeley, supra note 8, at 14. Alfred Stepan, The Multiple Secularisms of Modern Democracies and Autocracies, in Rethinking Secularism (Craig Calhoun, Mark Juergensmeyer and Jonathan Van Antwerpen eds., 2011). 11 Alfred Stepan, The World’s Religious Systems and Democracy: Crafting the “Twin Toleration”, in Arguing Comparative Politics 213–53 (2001); Gerhard Robbers, State and Church in the European Union, in State and Church in the European Union 323–34 (Gerhard Robbers ed., 1996); John T.S. Madeley & Zsolt Enyedi (eds.), Church and State in Contemporary Europe (2003). 12 For the limitations of the French model, see John R. Bowen, Can Islam be French? Pluralism and Pragmatism in a Secularist State (2010). 13 Madeley, supra note 8, at 31. 14 Anders Bäckström, Religion in the Nordic Countries: Between Private and Public, 29 Journal of Contemporary Religion 66 (2014). 15 Madeley, supra note 8, at 36. 9

10

Three models of church-state relations in contemporary Russia  241 thus restricting its purview to matters of personal conscience and social morality.”16 In a state church model, the established church co-defines the constitutional principles of the state. As a privileged partner of the state, a state church could, for example, seek to protect its own interest vis-à-vis other faith groups on the territory by having a say in law making. This has been the case of the Orthodox Church of Greece, which has defined its special position in the Greek state in exclusive terms and uses its influence in order to limit the possibilities for other religious groups to achieve equal recognition.17 By contrast, the Protestant state churches in twenty-first century Northern Europe have interpreted their role in the opposite way. The proximity between church and state in the Nordic countries has resulted in the inclusion of the national churches into the welfare state systems and has granted special responsibilities to the churches, but has limited their political dimension.18 In a selective cooperation model, the state usually recognizes more than one religion as cooperation partner and treats all these state-recognized religions as equal political players with equal rights and obligations. In such a model, one religious group will usually pursue only such goals in cooperation with the state that also reflects the interests of other state-recognized religions. In Austria, for example, the Austrian state refrains from interference with internal affairs of religious organizations and vice versa; nevertheless, the state cooperates regularly and institutionally with selected religious bodies. The Catholic Church frequently coordinates its position with other state-recognized Christian churches (the Austrian Protestant Church; the Orthodox Churches) and with the recognized Jewish and Islamic faith communities.19 On issues of common concern, in a selective cooperation model religious communities cooperate with each other and with the state in order to achieve particular goals. The Austrian Jewish and Islamic faith communities, for example, cooperated in order to achieve an exemption from the Austrian law on protection of animals for securing the right to kosher and halal slaughtering of animals for religious reasons.20 In a disestablishment model, all religious groups are equal in their equidistance from the state, no matter their size, and there are no constitutional, established channels of cooperation. The only access points to politics for religions are lobbying vis-à-vis policy makers and civic action geared at mobilization of the electorate. At the same time, religions are often highly visible in the public sphere and take over important functions in civil society – for example, in the sectors of welfare, care and private education. The paradigmatic disestablishment model, where an ideologically neutral state takes an equidistant stance toward the religious communities on its territory, is the United States. Many religious denominations with very diverse teachings exist side by side and, in part, compete with each other. As a result of the disestablishment clause in the American Constitution, the state remains neutral toward these religious communities; all of them are part of a fragmented and increasingly polarized civil society.21 Madeley, supra note 8, at 42. Adamantia Pollis, Greece: A Problematic Secular State, in The Secular and the Sacred: Nation, Religion and Politics 155–68 (William Safran ed. 2003); Vasilios Makrides, The Orthodox Church of Greece, in Eastern Christianity and the Cold War, 1945–91 253–70 (Lucian N. Leustean ed., 2010). 18 Bäckström, supra note 14, at 63. 19 Jürgen P. Nautz, Kristina Stoeckl, and Roman Siebenrock (eds.), Öffentliche Religionen in Österreich. Politikgesellschaft und zivilgesellschaftliches Engagement (2013). 20 Herbert Kalb, Richard Potz, and Brigitte Schinkele, Religionsrecht (2003). 21 James Davidson Hunter, Culture Wars. The Struggle to Define America (1991). 16 17

242  Constitutions and religion In a situation of ideological polarization, religious groups may choose to “exit” the public sphere. The American author Rod Dreher, in his book The Benedict Option, envisions a post-Christian world, where Christians are an endangered minority who should withdraw from society and form small communities to practice the true Christian faith there.22 The title of the book is a reference to Saint Benedict of Nursia, who in the 6th century A.D. fled the late Roman decadence and sought solitude in the woods to build Christian communities that were capable of surviving the breakdown of the existing order. According to this point of view, society is a place of sin, characterized by sexual promiscuity, the loss of communality and spiritual poverty. In this society, the author states, Christians are in fact “persecuted.” They have to react to this persecution by withdrawing from society. They should live in tightly knit communities, teach their children at home to avoid the negative influence of society and choose professions that can be done from home or as self-employed workers. All these measures serve, according to Dreher, to protect Christian communities from the detrimental influence of society. Dreher sees Christians who do not choose this path of rigidity as irresponsible and misguided. The emergence of religious fundamentalisms, for which The Benedict Option is one example, is of course not limited to disestablishment models. Fundamentalist and sectarian religious groups that see the surrounding secular society, the state and even their own ecclesiastical hierarchy as antagonists can emerge in all three models of religion-state relations. However, in a state church model and in a selective cooperation model, fundamentalist groups are bound to remain at the margins of the established channels of religious-political interaction. Furthermore, religious teaching in state church models and in selective cooperation models has the tendency to be accommodative with the world.23 In a disestablishment model, where established channels of religious-political interaction do not exist and where a free market of religious ideas privileges strong over moderate messages,24 fundamentalist religious groups are likely to flourish more easily. The three models of religion-state relations – the state church model, the selective cooperation model and the disestablishment model – stand for different ways in which a religion can interpret its public role: as a quasi-state actor in itself, as partner of the state or as antagonist to the state. It is usually one model that defines religion-state relations in a country, clearly circumscribed through constitutional provisions and laws. Also Russia implements, by law, one defined model of religion-state relations: the selective cooperation model. I will describe this model in the next section, before moving on to my argument that in addition to this one constitutional model, also the other two models are at play in the relations between religion and state in the present Russian Federation.

22 Rod Dreher, The Benedict Option: A Strategy for Christians in a Post-Christian Nation (2017). 23 Madeley, supra note 8, at 36. 24 Roger Finke and Rodney Stark, Religious Choice and Competition, 63 American Sociological Review 762 (1998).

Three models of church-state relations in contemporary Russia  243

3.

RUSSIAN LAWS ON RELIGIOUS FREEDOM AND TRADITIONAL RELIGIONS

In the year 1990, at the height of perestroika, the government of the Russian Soviet Federative Socialist Republic passed a law on religious organizations which approached the country to complete religious disestablishment and state religious neutrality. The law: prohibited the establishment of a state religion, and denied the state any right of intervention in religious affairs. Churches and other religious organizations were permitted to freely engage in worship and missionary activities, operate schools and seminaries, own property and publish religious literature, all without the requirement of registering with the government.25

After the break-up of the Soviet Union, this law on religion retained validity and, during the first half of the 1990s, guaranteed the revival of religious life in Russia, including the emergence of new religious groups.26 It was exactly the emergence of these groups that soon was to arouse the disapproval of the Russian Orthodox Church, which felt threatened by the activities of missionaries from abroad.27 Religious minorities were also unhappy with the situation – although for opposite reasons, because they saw in the close cooperation between the Russian Orthodox Church and the Yeltsin government a breach of the principle of equality encoded in the law. As a result of the growing public debate on religious freedom, the 1990 law was subject to revision and was replaced in 1997 by a new law on Freedom of Conscience and Religious Associations. The 1997 Law on Freedom of Conscience and Religious Associations reversed the trend of disestablishment and implemented a model of selective cooperation in religion-state relations. Commentators noted that, while the selective regulation of religion-state relations was not without parallels in the wider European context, the 1997 law was deficient on several grounds. The main controversial aspect of the new law was that it identified only two types of religious associations: “religious organizations” and “religious groups.” Only the former, religious organizations, were granted legal status by the new law. The second, religious groups, were not automatically granted legal status; they had to apply for it and seek registration.28 The condition for registration and for obtaining the legal status of a religious organization was a 15-year-long period of proven activity on the territory of the Russian Federation. At the time, this de facto excluded all religious communities that had established themselves in Russia after the breakdown of the Soviet Union and mostly concerned Protestant and evangelical religious communities. Another controversial aspect of the new law was the preamble,29 which – even though having no legal effect – effectively introduced a hierarchy of religions in Russia with

25 Derek H. Davis, Editorial: Russia’s New Law on Religion: Progress or Regress?, 39 Journal of Church and State 645–46 (1997). 26 Paul Froese, The Plot to Kill God : Findings from the Soviet Experiment in Secularization (2008). 27 Marat S. Shterin, James T. Richardson, Local Laws Restricting Religion in Russia: Precursors of Russia’s New National Law, 40 Journal of Church and State 319 ff. (1998). 28 See Davis, supra note 25, at 645 ff. 29 CESNUR, Law of the Russian Federation: On Freedom of Conscience and on Religious Associations, Center for the Study of New Religions (1997) (translation by the Keston Institute), www​ .cesnur​.org/​testi/​Russia​.htm, last accessed October 18, 2018.

244  Constitutions and religion the Russian Orthodox Church as the most important religion and traditional religions of the Russian peoples in the second place. The 15-year provision and the preamble were fiercely criticized by human rights activists within and outside Russia, who feared an infringement of individual religious liberty on the one hand, and the quiet promotion of the Russian Orthodox Church to a state church on the other.30 However, more recently scholars have conceded that for religious associations, the effects of the 1997 legislation have not been as onerous as initially feared.31 In 1997, going back 15 years did indeed mean going back to the closed religious system of the Soviet era; the 15-year clause was subsequently dropped from the law. A later amendment introduced a bi-partition of recognized religious organizations in “centralized religious organizations” (registration for the territory of the Russian Federation) and “local religious organizations” (registration only in at least one administrative region). As of 2018, a total number of 30 193 religious organizations had been registered in Russia, of which 601 were in the highest category as “centralized religious organizations” and 28 370 as “local religious organizations.” Of these 30 193 registered religious organizations (which include also monasteries), the Russian Orthodox Church takes the lion’s share (18 191); but also religions which could be considered outliers with respect to the traditional religions according to the preamble of the 1997 Law have obtained the highest level of state recognition as “centralized religious organization” (e.g. the Salvation Army, the Church of Latter Day Saints and several evangelical Christian churches). Even Scientology has been registered as a local religious organization.32 Religion-state relations in today’s Russia are therefore clearly multi-confessional. The problematic nature of Russia’s selective cooperation model in religion-state relations lies not – or not primarily – in the 1997 Law on Freedom of Conscience and Religious Associations, but in bureaucracy, ideology and adjacent laws and policies. Russia’s selective cooperation model in religion-state relations is deficient on the grounds that problems of recognition and registration often appear related to the malfunctioning of the Russian judicial system and to the federal structure of the administration, which gives a lot of power to local authorities.33 Also, several laws that are not primarily aimed at religious associations have restricted the effective implementation of Russia’s selective cooperation model in religion-state relations and have worked to the detriment of “non-traditional” religions. For example, in 2016, the Russian Duma passed an “anti-terrorism” package known as the Yarovaya Laws (for the key role of United Russia Duma Deputy Irina Yarovaya). These laws place severe restrictions on Protestants and other minority religious groups in Russia, essentially banning proselytizing. Also legislation on registration of organizations receiving

30 William J. Kovach, All Religions Are Equal, but Some Are More Equal than Others, in 6 Demokratizatsiya 424 (1998); Lee Trepanier, Nationalism and Religion in Russian Civil Society: An Inquiry into the 1997 Law On “Freedom of Conscience”, in Civil Society and the Search for Justice in Russia 64 (Christopher Marsh and Nikolas K. Gvosdev eds., 2002). 31 Katja Richters, The Post-Soviet Russian Orthodox Church. Politics, Culture and Greater Russia 38 (2013); Irina Papkova, The Orthodox Church and Russian Politics 75 (2011); Geraldine Fagan, Believing in Russia. Religious Policy after Communism (2014). 32 Federal’naya Sluzhba Gosudarstvennoj Statistiki, Rossiya v tsiffrakh, Oficial’noe Izdanie (2018), www​.gks​.ru/​free​_doc/​doc​_2018/​rusfig/​rus18​.pdf, last accessed October 18, 2018. 33 For evidence see SOVA-Center for Information and Analysis (ed.), Freedom of Conscience in Russia: Restrictions and Challenges in 2016 (2017), www​.sova​-center​.ru/​en/​religion/​publications/​2017/​ 05/​d36996/​, last accessed October 18, 2018.

Three models of church-state relations in contemporary Russia  245 funds from outside Russia (“foreign agents law”) negatively affects religious organizations.34 Anti-extremism legislation has also worked to the detriment of religious freedom for minority faiths. In 2017, the Russian Supreme Court confirmed the ban of the Jehovah’s Witnesses on the charge that it is a “totalitarian group” and “extremist.” In addition, the extra-legal component of the 1997 law – that is, the preamble about traditional religions – continues to be problematic. The definition of traditional religions in the preamble has de facto privileged some religions in Russia over others, mostly to the benefit of the Russian Orthodox Church. In this situation of contradictory legal competencies and multiple legal, administrative and ideological sources for regulating the religious life in Russia, the Russian selective cooperation model of religion-state relations should be judged as deficient. The existing cooperation model has not created a unitary and unequivocal system of religion-state relations, but a situation of multi-layered competencies and vagueness, in which two competing models of religion-state relations have been able to flourish besides the established legal model: namely, a state-church model and disestablishment. I will now look at all of these three models in more detail with a focus on the Russian Orthodox Church, drawing on selected empirical examples for illustration of my argument.

4.

RUSSIA’S THREE MODELS OF CHURCH-STATE RELATIONS AND THE THREE STRATEGIES OF THE RUSSIAN ORTHODOX CHURCH TO INTERACT WITH STATE AND SOCIETY

Russian Orthodox believers represent the largest faith community in the Russian Federation.35 The Russian Orthodox Church is the biggest religious organization in Russia and is recognized as a centralized religious organization by the Russian state. Following my discussion of the three models of religion-state relations – the state-church model, the selective cooperation model, and the disestablishment model – I will now demonstrate that the Russian Orthodox Church interprets its public role according to all three models. Depending on the issues and politics that are at stake, the church presents itself as quasi-state actor and exclusive partner to the state, as one cooperation partner among others of the state or as antagonist to the state. These three strategies are logically contradictory (how can you be both an antagonist and a partner of the state?), and they reflect three different understandings of church-state relations. The first strategy mirrors the state-church model, the second strategy the cooperation model and the third the disestablishment model. Practically, in the case of the Russian Orthodox Church, all three strategies work as complementary. The paradoxical fact that all three strategies apply (and are effective) in the public role of the Russian Orthodox Church is an indicator of the fact that the formal selective cooperation model itself has only limited explanatory power.

34 For evidence see USCIRF, Annual Reports, United States Commission on International Religious Freedom (2016), www​.state​.gov/​documents/​organization/​269104​.pdf, last accessed October 18, 2018. 35 72 percent, according to Pew Forum, Russians Return to Religion, but not to Church, 10 Pew Forum Analysis (February 2014), www​.pewforum​.org/​2014/​02/​10/​russians​-return​-to​-religion​-but​-not​ -to​-church/​, last accessed October 18, 2018.

246  Constitutions and religion 4.1

The Unofficial Russian State-Church Model: The Russian Orthodox Church as Exclusive Partner of the State and Representative of the Majority of the Russian People

The Russian Orthodox Church enjoys a privileged position among the religious organizations in Russia, for which the event of the unveiling of the monument to St. Vladimir cited in the introduction was emblematic. This symbolic privilege of the Russian Orthodox Church has, to some extent, translated into real political power and into an unofficial state-church model following the Orthodox confessional, Byzantine pattern of symphonia. Even though the Russian Orthodox Church has officially sought after maximum independence from the state after the collapse of the Soviet Union, the status of a state-church appears to have remained an attractive option for some people inside the church. Scholars such as Anatolij Krasikov and Boris Knorre have pointed out that the church leadership’s strategy has changed over time, and that the policy of independence under Patriarch Alexii II has been replaced by a project of Orthodox statehood under Patriarch Kirill.36 Аlexey Sitnikov even speaks about “sacralization” of the Russian state through the Church.37 Thе Russian Orthodox symphony of the twenty-first century is based not on an institutionalized state church, but on a network of informal church-state interactions and personal relations between the church hierarchy and members of the political establishment and public administration – Knorre speaks about “VIP-mission.”38 In this way, the Patriarchate of Moscow has influenced directly laws on public morality or public health, and has acted as spokesperson for an alleged majority consensus regarding Russian cultural and moral values. One example of the church’s unofficial privileged access to lawmaking is the 1997 Law on Freedom of Conscience and Religious Associations that I discussed above. This law was strongly desired by the Orthodox Church, which had started to lobby for it already in 1993 in order to curtail competition from other faith groups.39 Also, Article 5 of the Federal Law “On the Protection of Children from Information Harmful to their Health and Development and Miscellaneous Legal Acts of the Russian Federation for the Purpose of Protecting Children from Information Advocating for a Denial of Traditional Family Values” of 2012 fulfilled a request of the Russian Orthodox Church to prohibit gay parades in the country; and the “Amendments to Article 148 of the Russian Federation Criminal Code and Certain Legislative Acts of the Russian Federation in the Aim of Protecting Religious Convictions and Feelings of Citizens Against Insults” of 2012 likewise matched the interests of the church after the Pussy Riot scandal. The main example I want to explore in this chapter, however, is the Law “On the Fundamental Healthcare Principles in the Russian Federation” (N232-FZ) of 2012, which introduced important changes to the Russian abortion law. The law included measures such as establishing a mandatory “week of silence” from seven days to 48 hours between the visit

36 Anatolii Кrasikov, Globalizatsiya i pravoslavie, in Religiya i globalizatsiya na prostorakh Evrasii 50 (Aleksej Malashenko and Sergej Filatov eds., 2009); Boris Knorre, Rossijskoe pravoslavie: Potsekulyarnaya institutsionalizatsiya v prostranstve vlasti, politiki i prava, in Montazh i demontazh sekulyarnogo mira 47–48 (Aleksej Malashenko & Sergej Filatov eds., 2014). 37 Alexey V. Sitnikov, Pravoslavie, instituty vlasti i grazhdanskogo obshchestva (2012). 38 Knorre, supra note 36, at 48. 39 See Davis, supra note 25, at 645–56.

Three models of church-state relations in contemporary Russia  247 to a medical facility and the termination of pregnancy, depending on gestational age; and the right of the doctor to refuse to perform medical termination of pregnancy if it does not directly threaten the patient’s life and health of others. In the run-up to this law, the Russian Orthodox Church acted as a direct, official consultant to the Russian government. A joint committee was created by the Russian Orthodox Church and the Ministry of Health with the aim to devise strategies to reduce the high number of abortions in the country. The role of the Russian Orthodox Church was exclusive in this case; no other religious groups were involved. The sociologist Alexander Ponomariev interprets the church’s concern with “national health” as a sign of “symphony,” in which church officials demonstrate “state-related qualities” and “state-oriented thinking.”40 The doctrinal basis for the Russian Orthodox Church’s engagement as a public religion in the health reform committee is the document The Bases of the Social Concept. Chapter 11 on “Personal and national health” deals with abortion not only from a soteriological point of view (abortion as murder and sin), but from the perspective of Russia’s demographic crisis: The Russian Orthodox Church has to state with deep concern that the peoples she has traditionally nourished are in the state of demographical crisis today [...] The Church has been continually occupied with demographic problems. She is called to follow closely the legislative and administrative processes in order to prevent decisions aggravating the situation. It is necessary to conduct continuous dialogue with the government and the mass media to interpret the Church’s stand on the demographic and healthcare policy. The fight with depopulation should be included in the effective support of medical research and social programs intended to protect motherhood and childhood, the embryo and the newborn. The state is called to support the birth and proper upbringing of children.41

Public health is not the only policy area where the Russian Orthodox Church enjoys exclusive consultative status. Regular annual meetings are also held between the Moscow Patriarchate’s Department for External Church Relations and the Russian Ministry of Foreign Affairs (Working Group for Cooperation between the Russian Orthodox Church and the Russian Ministry of Foreign Affairs).42 All this points toward a model of church-state relations that Ponomariov calls “consonance of powers” and that is interpreted, by the church itself, as a modern form of symphony, which reserves an exclusive status for the Russian Orthodox Church in the Russian state.43

40 Alexander Ponomariov, The Visible Religion. The Russian Orthodox Church and her Relations with State and Society in Post-Soviet Canon Law (1992–2015) 174 (2017). 41 Social Doctrine, The Bases of the Social Concept of the Russian Orthodox Church (official translation), Official Website of the Department for External Church Relations of the Moscow Patriarchate (2000), www​.mospat​.ru:​http://​www​.mospat​.ru/​en/​documents/​social​-concepts/​, last accessed October 18, 2018. 42 ROC, Working Group for Cooperation between the Russian Orthodox Church and the Russian Ministry of Foreign Affairs holds its 22nd Session, Official Website of the Department for External Church Relations of the Moscow Patriarchate (November 13, 2017), https://​mospat​.ru/​en/​2017/​11/​13/​ news152661/​, last accessed October 18, 2018. 43 Ponomariov, supra note 40, at 100.

248  Constitutions and religion 4.2

The Official Selective Cooperation Model: The Russian Orthodox Church as One Public Religion among Others and Worthy of Recognition of Equal Rights

According to the official legal status of religious organizations in the Russian Federation, the Russian Orthodox Church represents only one – albeit the largest – faith group in Russia, besides other recognized faiths. As such, the Russian Orthodox Church – just like all other state-recognized religious organizations – has some rights and obligations vis-à-vis the state; and the state, according to the model of selective cooperation, likewise has some obligations toward the religious organizations. In a situation of selective cooperation, religious actors are likely to team their efforts in order to obtain desired outcomes from the state (see the example from Austria above). Russia is no exception to this trend. The Russian Orthodox Church – together with the Islamic, Jewish and Buddhist religious organizations – managed to introduce a curriculum about religion in Russian public schools. Besides access to public services, however, religions in a selective cooperation system also remind the state of its obligation to respect the religious commitments of its citizens. Abortion legislation is not only a good example for how the Russian Orthodox Church acts as state-church, but also a good example for how the church presents itself as a faith group whose equal rights the state should respect. In the Social Doctrine, the church insists on the right of Christian doctors to refuse to conduct abortions on the ground of conscience: ‘Sin also lies with the doctor who performed the abortion. The church calls upon the state to recognize the right of medics to refuse to procure abortion for the reasons of conscience.’44 The aforementioned 2013 health law introduced, explicitly, the right for medical personnel to refuse conducting abortions. In 2016, the Russian Orthodox Church pushed further along this strategy by demanding that abortions should no longer be a free service on the public health scheme, because this would make Orthodox taxpayers complicit with the sin of murder.45 In this situation, the Russian Orthodox Church acts as a public religion with a soteriological purpose: it seeks protection for the spiritual integrity of its own believers (and only them), instead of assuming – as it does in the unofficial vest of a state church – responsibility and the role of a spokesperson for the whole Russian people. 4.3

The Unofficial Disestablishment Model: The Russian Orthodox Church as an Antagonist of the State

The last strategy, to present Orthodox Christians as warriors with an antagonistic state, is maybe the most puzzling and unexpected strategy applied by the Russian Orthodox Church in its interaction with the state and public policy. Actually, most of the time it is not the church which is adopting this strategy, but religious grassroots movements that are, however, supported by the Church hierarchy. These Christian groups act as if they were in a situation of a “culture war” with a Russian state bureaucracy and a majority society that is still prevalently Soviet and atheist in its mindset. Several scholars have discussed this aspect of church-state Social Doctrine, supra note 41. ROC, B Moskve sostoyalos' sobranie pravoslavnoj obshchestvennosti, vystupayushchej protiv abortov, Official Website of the Moscow Patriarchate (June 29, 2015), www​.patriarchia​.ru/​db/​text/​ 4138346​.html, last accessed October 18 2018. 44 45

Three models of church-state relations in contemporary Russia  249 relations in Russia, which may have become virulent for the first time around 2008 on the question of juvenile justice, under different names: “confrontation,”46 “political hesychasm”47 or “politicized Orthodoxy.”48 The strategy of retreat from society and opposition to state policies is, in fact, contemplated as a last resort in the Social Doctrine of the Russian Orthodox Church in 2000: If the Church and her holy authorities find it impossible to obey state laws and orders, after a due consideration of the problem, they may take the following action: enter into direct dialogue with authority on the problem, call upon the people to use the democratic mechanisms to change the legislation or review the authority’s decision, apply to international bodies and the world public opinion and appeal to her faithful for peaceful civil disobedience.49

This statement presupposes a cooperation model, but it also goes beyond it. The statement presupposes a cooperation model insofar as the church describes itself as subject to state laws and orders (that it does not co-author, as would be the case in a state-church model) and as dialogue partner for the authorities. But the statement devises an escalation strategy of opposition to the state – democratic means, appeal to international bodies and world public opinion and, at last, civil disobedience – which leaves the grounds of a cooperation model behind and begins to resemble a model of antagonistic disestablishment. There are several examples where the Russian Orthodox actors have implemented strategies of opposition, rather than cooperation with the Russian state. One is again related to the question of abortion.50 In 2015/2016, the Orthodox Christian association Za Zhizn’ launched a popular referendum to ban abortions completely. The referendum gained little support among politicians, but gathered around half a million signatures according to the organizers; even Patriarch Kirill signed it. Vladimir Potikha, at the time the vice-president of the organization, argued that the prohibition of abortion in Russia should contribute to making Russia a great power again, much like the Soviet Union in the past. For this purpose, he even created an emblem based on the state emblem of the Soviet Union, replacing the hammer and sickle in the center with a baby inside a uterus, his organization’s symbol. He explained that the slogan “Proletarians of the world unite” had a hidden meaning, because the Latin term proles originally meant “offspring.” Potikha glossed over the paradox that abortion in the Soviet Union was legal; as a matter of fact, he blamed the legalization of abortion in the Soviet Union on “Jewish doctors” and hailed the Stalinist period of criminalization of abortion as a successful

Aleksey V. Alekseev, Evolutsiya gosudarstvenno-tserkovnykh otnoshenij v uslovisotsialn’no-politicheskoj transformatsii rossijskogo obshchestva (na primere Russkoj Pravoslavnoj Tserkvi) (PhD dissertation) (2018). 47 Vladimir Petrunin, Politicheskij isikhazm i ego traditsii v sotsialnoj kontseptsii Moskovsogo Patriarkhata (2009). 48 Anastasia V. Mitrofanova, The Politicization of Russian Orthodoxy: Actors and Ideas (2005). 49 Social Doctrine, supra note 41. 50 The empirical material on abortion was initially elaborated for Susanna Mancini and Kristina Stoeckl, Transatlantic Conversations: The Emergence of Society-protective Anti-abortion Arguments in the United States, Europe and Russia, in The Conscience Wars. Rethinking the Balance between Religion and Equality 220–57 (Susanna Mancini & Michel Rosenfeld eds., 2018). 46

yakh

250  Constitutions and religion project and as a response to eugenics in Nazi Germany.51 Sonja Luehrmann has found out that prolife activists in Russia do not feel that they have the Russian government on their side; rather, they lobby and mobilize the public for their ideas in order to force the government into action. One activist interviewed by Luehrmann, who directs a crisis center in Saint Petersburg, characterized her work as an “anti-state activity.”52 Another example of Orthodox groups that seek retreat from the state, rather than cooperation with the state, is the growing phenomenon of Orthodox homeschoolers. A group of Orthodox pro-family activists related to the Patriarchal Commission on the Family has started to actively introduce the idea of homeschooling into Russia. In Spring 2018, this group organized a global congress on homeschooling in St. Petersburg and Moscow. Their approach follows the example of Christian homeschoolers in the United States (they actually adapted their teaching curriculum called “Classical Conversations.”)53 By following this North American model, Orthodox homeschoolers also take over strategies and a rhetoric that has matured in a very different institutional context; namely, in the system of disestablishment of the United States, where religion is kept out completely from public schools. The homeschooling model is one of retreat, contemplated also by Rod Dreher in his book The Benedict Option, whereas the official strategy of the church has been to cooperate with the state in the field of education as much as possible. What is noteworthy is that, during some interviews conducted by my research team, these actors presented themselves as independent from the church, even if they had some official functions inside the church. They saw the state as an antagonist, which only pays lip service to things like “traditional values”, but in reality fails to implement policies that would truly further Christian goals. The antagonism of Russian Orthodox grassroots movements vis-à-vis the state frequently involves also opposition to the church hierarchy. The strategies of retreat and cooperation are mutually exclusive, and groups that advocate an antagonistic model of Christianity in the secular Russian state frequently oppose the official close ties between the church leadership and the authorities.54 Sometimes, however, it is the church leadership itself that uses antagonistic strategies alongside cooperative models.

5. CONCLUSION The three models of religion-state relations discussed in this chapter exist in parallel in the Russian context, notwithstanding the formal model of selective cooperation. The main conclusion to be drawn from this complicated picture is that the propagandistic clarity of the Russian religious world in front of the monument of Prince Vladimir is as much as chimera as 51 Vladimir V. Potikha, Iz istorii prenatal'nogo infantitsida: vekhi i daty proshedshego stoletiya, Youtube-Video uploaded by Festival Za Zhizn’ on March 2, 2017, registered on January 27, 2017 in the context of the XXV Christmas Readings, Hotel Salyut, Moscow, www​.youtube​.com/​watch​?v​=​8UoE​ _NvV8So, last accessed October 18, 2018. 52 Sonja Luehrmann, Innocence and Demographic Crisis: Transposing Post-abortion Syndrome into a Russian Orthodox Key, in A Fragmented Landscape: Abortion Governance and Protest Logics in Europe 104 (Silvia De Zordo, Joanna Mishtal and Lorena Anton eds., 2017). 53 This is the Russian website: http://​classicalconversations​.ru/​; and this is the American website: www​.classicalconversations​.com/​, last visited October 18, 2018. 54 Mitrofanova, supra note 48, at 166.

Three models of church-state relations in contemporary Russia  251 is state religious neutrality in Western Europe. The claim that the Russian Orthodox Church implements hybrid forms of cooperation in the interaction with the Russian state is supported by the findings in this article, but it is important to limit the claim to the leadership of the church. The current patriarchate skillfully operates according to multiple, even contradictory models of church-state relations. In the case of the Orthodox pro-life, these multiple strategies have the same goal (reduction of abortions in the country), but not the same vision how to achieve this goal: the visions range from a complete ban of abortions to conscientious objection of Orthodox doctors. From the perspective of the church leadership, hybrid interaction is efficient, because by operating at different levels of the policy-making process the church increases its chances of success. The same is not true for the other religious actors discussed in this chapter. Grassroots movements that advocate retreat of the church from state and secular society are likely to see this as their only true strategy, not as one among others. What follows from this analysis of the Russian Orthodox Church as a multifaceted, multivocal and, indeed, contradictory public religion are some questions that deserve further exploration. Future research could concentrate on the question how the modes of interaction between church and state vary from one state institution and from one level of government to another and how the various actors inside the Russian Orthodox Church respond to each other. What becomes clear already at this point, however, is that the field of religion-state relations in Russia is never stable and full of contradictions; and it allows no actor to ever feel safe or in control – not even the Russian Orthodox Church.

PART III THE CONSTITUTION AND POLITICS OF RELIGION

15. Religion in constitution-making processes: comparative perspectives Francesco Biagi

1. INTRODUCTION The purpose of a constitution is not only to regulate the distribution of powers among the branches of government and to protect fundamental rights and freedoms, but also to establish the national identity of the people that adopted it. As one of the essential elements of this identity, it comes as no surprise that the vast majority of contemporary constitutions refer to religion. Statistics also confirm this “ubiquity of religion in constitutions:”1 out of 194 constitutions in existence today, 186 contain the word “religion”; 183 include some forms of protection of religious freedom; and 114 mention the words “God”, “the divine” or other deities.2 Religion is increasingly becoming a core element within constitution-making processes. While in some countries it has not been a contentious issue (e.g. in France), in many others religion has been an extremely complicated and sensitive topic, which has aggravated social cleavages, dividing rather than uniting people, and hindering rather than enabling constituent processes (e.g. in many North African and Middle Eastern countries following the so-called “Arab Spring”). Furthermore, in extreme circumstances conflict over religion has even played a role in preventing the adoption of a constitution (e.g. in Israel). In this chapter, I shall consider the role of religion in post-Second World War constitution-making processes from a comparative perspective. In order to do so, I shall first look at the actors that most commonly contribute to shaping the content of constitutional provisions concerning religion during these processes, such as political parties, religious institutions, religious minorities, civil society and external actors. Second, I shall examine the factors that often influence the issue of religion in constitution-drafting processes – namely the different types of processes (whether top-down or bottom-up, national or supranational), constitutional history and tradition, as well as external influences. Third, I shall discuss the most contentious issues that usually emerge during debates within constituent bodies, such as the religious versus secular character of the state, the status of religious law, the protection of religious freedom, the regulation of religious education, the institution responsible for interpreting religious issues, the relations between religion and international human rights treaties and the reference (or the absence thereof) to religion in constitutional preambles. Finally, I shall set out some concluding remarks.

Francois Venter, Constitutionalism and Religion 87 (2015). Asli Ü. Bâli and Hanna Lerner, Introduction, in Constitution Writing, Religion and Democracy 6 (Asli Ü. Bâli and Hanna Lerner eds., 2017); see also Iván C. Ibán, God in Constitutions and Godless Constitutions, in Law, Religion, Constitution. Freedom of Religion, Equal Treatment, and the Law 37 ff. (W. Cole Durham, Jr., Silvio Ferrari, Cristiana Cianitto, and Donlu Thayer eds., 2013). 1 2

253

254  Constitutions and religion

2.

THE ACTORS

A number of different actors contribute to defining the content of constitutional provisions concerning religion during constitution-drafting processes. These include political parties, religious institutions, religious minorities, civil society and external actors. 2.1

Political Parties

Political parties are often the protagonists (for better and for worse) of constitutional design, especially when the constitution results from a democratically elected Constituent Assembly. The constitution-making processes that have been taking place in North Africa and the Middle East following the Arab uprisings provide some interesting examples. While polarization between Islamists and secularists has characterized many of these processes, the types of approaches toward contentious religious issues followed by religious parties have varied significantly from country to country. In Tunisia, for example, Ennahda – a moderate Islamist party holding a relative majority of the seats within the Constituent Assembly – displayed from the outset of the constitution-drafting process its commitment to consensus and its willingness to cooperate with the other secular parties represented in the Assembly. It thus formed a government coalition with the center-left Congress for the Republic and the social democratic party Ettakatol. Ennahda’s approach, which was characterized by “moderation and compromise,”3 contributed significantly to the positive outcome of the process that led to the adoption of the 2014 Constitution. In fact, Ennahda took a step back and accepted the requests of secular parties in relation to some key aspects of constitutional design. It is emblematic, for example, that despite strong criticism from its base, Ennahda decided to withdraw its proposal to include a Sharia clause in the Constitution. The approach of the Muslim Brotherhood in Egypt during the 2012 constitution-making process was diametrically opposed to this. In fact, unlike Ennahda, the Brotherhood – which held a majority of the seats within the Constituent Assembly – assumed a winner-takes-all attitude with respect to the drafting of the Constitution. In particular, it made a number of concessions to the Salafists (e.g. limiting the power of the Supreme Constitutional Court to interpret the principles of Sharia and requiring al-Azhar to be consulted in matters pertaining to Sharia, as will be discussed below), and considered the requests originating from non-Islamist parties only to a very limited extent.4 This resulted in the withdrawal from the Constituent Assembly of several non-Islamist members, who accused the representatives of the Muslim Brotherhood of doing their best to draft a constitution that was designed to turn Egypt into a radical Islamist state.5 3 Duncan Pickard, Al-Nahda: Moderation and Compromise in Tunisia’s Constitutional Bargain, in Political and Constitutional Transitions in North Africa. Actors and Factors 4 ff. (Justin O. Frosini and Francesco Biagi eds., 2015). 4 On the debates regarding the place of religion and Sharia during the 2012 constitution-making process, see Lama Abu-Odeh, Egypt’s New Constitution: The Islamist Difference, in Constitutional Secularism in an Age of Religious Revival 160 ff. (Michel Rosenfeld and Susanna Mancini eds., 2014). 5 Liliana Mihaila, More Withdraw from Constituent Assembly, Daily News Egypt (November 18, 2012), www​.dailynewsegypt​.com/​2012/​11/​18/​more​-withdraw​-from​-constituent​-assembly/​, last accessed May 17, 2020.

Religion in constitution-making processes: comparative perspectives  255 The consequences of the completely different approaches followed by Ennahda in Tunisia and the Muslim Brotherhood in Egypt are evident. On the one hand, the 2014 Tunisian Constitution, which represents a compromise among the main political forces represented within the Constituent Assembly, enjoys a very high degree of legitimacy. On the other hand, the short-lived 2012 Egyptian Constitution,6 which lacked a consensual approach, was perceived by many people as the Constitution of the Muslim Brotherhood rather than the Constitution of all Egyptians.7 In some cases, conflicts over religion among the different political parties may even prevent a constitution from being adopted. In Israel, for example, during the two attempts to adopt a written (rectius: codified) constitution (i.e. between 1948 and 1950 and between 2003 and 2006), the “religious conflicts on both the inter-religious level (between the Jewish majority and the Palestinian minority) and the intra-religious level (within the Jewish population)” represented “one of the main reasons for the blockage in the long-lasting process of constitution-making [...].”8 In 1950, Orthodox members of the Knesset were opposed to the idea of enacting a secular constitution that would have defined the country in national, rather than religious terms. Although only a small minority of Knesset members represented religious parties, the majority of (secular) Jews in Parliament decided to refrain from adopting a constitution in order to avoid exacerbating existing divisions. Indeed, the fear was that this would have provoked a Kulturkampf.9 Similarly, between 2003 and 2006, the inability of Orthodox and liberal-secular members of the Knesset to agree on issues such as personal law, conversion to Judaism, the public preservation of the Sabbath and the interpretative role of the Supreme Court once again prevented the adoption of a codified constitution.10 2.2

Religious Institutions

Religious institutions are also often central actors in the processes of constitutional design. In some cases they have managed to exert a significant influence on the content of the new constitution, as happened, for example, in Spain, where the aspirations of the Catholic Church were largely incorporated into the 1978 Constitution.11 Indeed, the strong pressure brought to bear

6 Following the coup-d’état of July 3, 2013, which removed President Mohammed Morsi from office, a new constitution-making process began. The new Constitution came into force in January 2014. See Zaid Al-Ali, Egypt’s Third Constitution in Three Years: A Critical Analysis, I-CONnect Blog (December 18, 2013), www​.iconnectblog​.com/​2013/​12/​egypts​-third​-constitution​-in​-three​-years​-a​ -critical​-analysis/​, last accessed May 17, 2020; Nathalie Bernard-Maugiron, La constitution égyptienne de 2014: quelle réforme constitutionnelle pour l’Égypte?, 103 Revue française de Droit constitutionnel 515 ff. (2015). 7 On the differences between these two constitution-making processes, see also Justin O. Frosini and Francesco Biagi, Transitions from Authoritarian Rule following the Arab Uprisings: A Matter of Variables, in Frosini and Biagi (eds.), supra note 3, at 135–38. 8 Asli Ü. Bâli and Hanna Lerner, Constitutional Design Without Constitutional Moments: Lessons from Religiously Divided Societies, 49 Cornell International Law Journal 263–64 (2016). 9 See Bâli and Lerner, supra note 8, at 265–66. 10 See Bâli and Lerner, supra note 8, at 266; Hanna Lerner, Constitutional Impasse, Democracy, and Religion in Israel, in Bâli and Lerner (eds.), supra note 2, at 269 and 275–79. 11 See José Antonio Souto Paz, La transición política en España y la cuestión religiosa, Osservatorio delle libertà ed istituzioni religiose 12 (November 2005), www​.olir​.it, last accessed May 17, 2020.

256  Constitutions and religion by the Spanish Episcopate (mainly by means of an awareness-raising campaign) was decisive in the drafting of the constitutional provision on religious freedom, which stipulates, inter alia, that the state must “take into account the religious beliefs of the Spanish society” and “maintain appropriate cooperation relations with the Catholic Church and other confessions” (Article 16(3)). An explicit constitutional recognition of the Catholic Church was indeed considered to be essential by the Church in order to guarantee its independence and autonomy.12 The case of Kenya, however, shows that religious institutions are not always able to achieve their aims. In the process that led to the adoption of the 2010 Constitution, the church and clergy strongly opposed the inclusion of the Kadhis courts (which deal with questions of Islamic law, especially in matters relating to personal status), with the aim of influencing the country’s predominantly Christian voters to reject the proposed new Constitution in the final referendum.13 The Kenyan people, however, overwhelmingly endorsed the Constitution, thus showing that the official position of a religious institution (even if the religion in question is followed by the vast majority of the population) may not be decisive in determining the outcome of the constitution-making process. 2.3

Religious Minorities

Not surprisingly, the role played by religious minorities in constituent processes is usually a marginal one, and they are only rarely able to influence the content of the new constitution according to their wishes. Italy is a paradigmatic example of a country in which the requests by religious minorities (in particular Jews and Protestants) were disregarded. In the first place, all of the representatives of religious minorities argued against the constitutional recognition of a special status for the Catholic Church, but the Constituent Assembly decided to adopt a specific provision to govern the relations between church and state. In fact, Article 7 of the 1948 Constitution stipulates that “The State and the Catholic Church are independent and sovereign, each within its own sphere. Their relations are regulated by the Lateran pacts [...].” Interestingly enough, the Constituent Assembly also rejected the proposal made by the representatives of religious minorities to include a provision proclaiming the equality of all religions before the law. In order to avoid calling into question the primacy of the Catholic religion, the Assembly opted for a slightly different provision stating that “All religious denominations are equally free before the law” (Article 8(1)) (emphasis added). The inclusion of Article 8(3), which stipulates that the “relations [of the denominations other than Catholicism] with the State are regulated by law, based on agreements with their respective representatives,” was not considered by the representatives of religious minorities to constitute sufficient compensation for the rejection of their requests.14 There are some cases – albeit extremely rare – in which religious minorities have been granted significant representation within the Constituent Assembly, thus enabling them to 12 See Romina De Carli, La negociación concordataria y el proceso constituyente durante la Transición, 30 Cuadernos de Historia Contemporánea 343 ff. (2008). 13 See Oscar Gakuo Mwangi, Religious Fundamentalism, Constitution-making and Democracy in Kenya: The Kadhis Courts Debate, 101 The Round Table 41 ff. (2012). 14 See Gianni Long, Alle origini del pluralismo confessionale. Il dibattito sulla libertà religiosa nell’età della Costituente 275–79 and 329 ff. (1990); Gianni Long, Le confessioni religiose diverse dalla cattolica 28–34 (1991); Andrea Guazzarotti, Giudici e Minoranze Religiose 11–16 (2001).

Religion in constitution-making processes: comparative perspectives  257 shape (at least in part) the constitutional provisions dedicated to religious freedom. India offers an interesting example. Not only were religious minorities involved in pre-constituent meetings and discussions, but some of their main claims within the Constituent Assembly were taken into consideration and incorporated into the 1949 Constitution. The Hindu majority, for example, accepted the incorporation into the right to religious freedom (Article 25) of the right to propagate one’s religion, as proselytization is a fundamental tenet of some religions such as Christianity and Islam.15 2.4

Civil Society

As far as the role of the civil society is concerned, the people have traditionally been involved in constitution-making processes either by electing delegates to a Constituent Assembly or by voting in a referendum, if held, to ratify the new constitution. In the past few decades, however, an increasing number of countries have engaged in “participatory constitution-making processes,” in which the people have participated directly in these processes (e.g. through public demonstrations, meetings between members of the Constituent Assembly and civil society, and so-called “e-participation”), thus influencing the very content of the new constitution.16 The process that led to the adoption of the 2014 Tunisian Constitution undoubtedly falls within this type of constituent processes.17 In particular, the role of civil society has been in some cases crucial in order to protect women from a patriarchal interpretation of Islamic texts. In fact, the first draft of the Constitution (adopted in August 2012) contained a very controversial provision (Article 28) which stipulated that “the State assures the protection of women’s rights [...] under the principle of complementarity with man within the family [...]” (emphasis added). The risk of incorporating such an equivocal article into the Constitution was evident: women could “no longer aspire to more than ‘complementarity’ with men, thus limiting their status to that ‘of wife’ and ‘mother.’”18 Luckily, following major protest demonstrations by women’s associations (in particular on August 13, 2012, on Tunisian Women’s Day, which commemorates the adoption of the 1956 Code of Personal Status), this provision was removed, and the principle of gender equality was clearly proclaimed in the second draft Constitution from December 2012, as well as in later drafts and in the final Constitution of 2014. Thus, the reli-

15 See Ronojoy Sen, Reforming Religion: The Indian Constitution, the Courts and Hinduism, in this volume; Shylashri Shankar, Cross-Cutting Rifts in Constitutions and Minority Rights. India, Pakistan, Sri Lanka, in Bâli and Lerner (eds.), supra note 2, at 217–21. 16 See Abrak Saati, The Participation Myth. Outcomes of Participatory Constitution Building Processes on Democracy (2015); Umberto Allegretti, Cecilia Corsi, and Giovanni Allegretti, Constituent Process and Constituent Assembly: The Making of Constitutions Through the Larger Involvement of Citizens, Forum Costituzionale (July 27, 2016), www​ .forumcostituzionale​ .it, last accessed May 17, 2020; Yash Ghai, Civil Society, Participation and the Making of Kenya’s Constitution, in Comparative Constitution Making 212 ff. (David Landau and Hanna Lerner eds., 2019). 17 See Nedra Cherif, Participation in the Tunisian Constitution-making Process, in Public Participation in African Constitutionalism 69 ff. (Tania Abbiate, Markus Böckenförde and Veronica Federico eds., 2018); Tania Abbiate, La partecipazione popolare ai processi costituenti. L’esperienza tunisina (2016). 18 Synda Tajine, Will Tunisian Women Become “Complementary” to Men by Law?, Al-Monitor (August 14, 2012), www​.al​-monitor​.com/​pulse/​politics/​2012/​08/​tunisia​-are​-womens​-rights​-fading​.html, last accessed May 17, 2020.

258  Constitutions and religion gious cleavage – as demonstrated by the example of Tunisia – may promote the mobilization of the people and active participation in constitution-drafting processes.19 2.5

External Actors

External actors have rarely influenced the content of constitutions with respect to religion, since (as mentioned above) religion is an essential component of national identity, which falls within the scope of exclusive state sovereignty. The Tunisian constitution-making process represents a very interesting exception to this rule, since the recommendations provided by the European Commission for Democracy through Law (better known as the Venice Commission, which is the advisory body of the Council of Europe on constitutional issues) to the Constituent Assembly were crucial in defining the relationship between the State and Islam, and in particular in interpreting Article 1 of the 2014 Constitution. This provision has retained the same wording as Article 1 of the previous 1959 Constitution: “Tunisia is a free, independent, sovereign state; its religion is Islam, its language is Arabic, and its system is republican” (emphasis added). This provision is characterized by an evident ambiguity since it can be interpreted in two different ways – that is, either as establishing Islam as the state religion, or as asserting that Islam is the religion of the majority of the population. Under the former interpretation, Islam is the religion of state institutions, while the latter interpretation underscores a sociological and identitarian aspect, resulting from the fact that 99 percent of the Tunisian population is Muslim. Since the adoption of the 1959 Constitution, the latter interpretation has prevailed, and in fact some commentators have stressed that, thanks to this interpretation, Islam has reigned over Tunisia, while the state has governed the country.20 On June 3, 2013, the Speaker of the Constituent Assembly requested the opinion of the Venice Commission concerning the fourth (and final) draft Constitution. This document maintained the wording of Article 1 of the 1959 Constitution, but also introduced an “eternity clause” (Article 141) listing a series of constitutional principles that could not be amended, including “Islam as the State religion.” In its opinion, the Venice Commission pointed out that “the reference to Islam as the state religion as a non-amendable principle contained in Article 141 goes far beyond the wording of Article 1, which states that Islam is the religion of Tunisia (= of the majority of Tunisians)” (emphasis added). According to the Venice Commission, Article 141 was inconsistent, in particular, with Article 2 of the Constitution, which declares that Tunisia is a “civil state.”21 In the light of these observations, the Constituent Assembly decided to remove Article 141, thus promoting an interpretation of Article 1 according to which Islam is not the state religion, but rather the religion of the majority of the population (as it had been interpreted in the past). Therefore, the recommendations of the Venice Commission in relation to Article 1 were by no means perceived as undermining the state’s sovereignty, and

19 See Tania Abbiate, The Cross-cutting Issue of Religion in the Tunisian Participatory Constitution-making Process, in Abbiate, Böckenförde and Federico (eds.), supra note 17, at 283 ff. 20 See Pietro Longo, L’Islam nella nuova Costituzione: dallo Stato neutrale allo Stato “protettore”, in Tunisia. La Primavera della Costituzione 111 (Tania Groppi and Irene Spigno eds., 2015). 21 See Venice Commission, Opinion on the Final Draft Constitution of the Republic of Tunisia, October 17, 2013, www​.venice​.coe​.int/​webforms/​documents/​?pdf​=​CDL​-AD(2013)032​-e, last accessed May 17, 2020.

Religion in constitution-making processes: comparative perspectives  259 were in fact incorporated into the new Constitution, thus showing a willingness on the part of the Tunisian framers to comply with international standards and comparative best practices. Although in many cases political parties are the actors that most significantly influence the content of constitutional provisions concerning religion, comparative examples have clearly shown that a number of different actors (including religious institutions, religious minorities, civil society and external actors) often play a pivotal role in the drafting of these provisions. Put differently, the room for maneuver of political parties in matters relating to religion seems to be more limited compared to other more “technical and neutral” fields, such as constitutional adjudication (one need only consider the decision over whether to adopt a centralized or a decentralized system of constitutional adjudication). As a constituent element of a country’s national identity that affects the everyday life of citizens, religion is a matter regarding which numerous segments of society want to make their voice heard. This is why, aside from a few rare cases in which the political forces in power manage to incorporate their own views concerning religion into the constitution, the wording of constitutional provisions regarding religion is usually influenced either directly or indirectly by competing claims from a large number of different actors.

3.

THE FACTORS

As is the case for the actors, a variety of factors often have a significant impact on the issue of religion in constitution-making processes. These include, in particular, the different types of constituent processes (whether top-down or bottom-up, national or supranational), constitutional history and tradition, as well as external influences. 3.1

Top-Down and Bottom-Up Processes

The issue of religion is particularly complicated both in top-down and in bottom-up constitution-drafting processes. Within the context of top-down constitution-making processes, the imposition of a certain type of state (e.g. a secular state or a religious state) or of certain religious principles (e.g. the inclusion of a Sharia clause) raises the problem that choices imposed from above may not reflect the will of the people. On the other hand, in the context of bottom-up processes, where a number of actors have a say in the drafting of constitutional provisions regarding religion, the risk (as discussed above) is that existing divisions may be heightened or even that it may not be possible to reach agreement concerning the most contentious issues. It has been rightly pointed out that the common “binary treatment of constitution-drafting processes as either elite-led or broadly participatory is too black and white,” and that it is possible to observe a few “variations from expected trends concerning the relations between process and outcome in constitution-drafting.”22 Thus, for example, it has been shown that a top-down constituent process does not necessarily lead to a repressive constitutional outcome; or conversely that a bottom-up process does not always result in a constitution that guarantees greater protection for fundamental rights (and in particular for freedom of religion). 22 Asli Ü. Bâli and Hanna Lerner, Designing Constitutions in Religiously Divided Societies, in Bâli and Lerner (eds.), supra note 2, at 385.

260  Constitutions and religion Furthermore, it is possible to identify a number of variations from the expected trend whereby top-down processes tend to emphasize secularism.23 Therefore, while the type of constitution making is certainly an element that has to be taken into account, it does not per se provide definitive answers regarding the effects that will result in terms of the place and role of religion in the constitution. 3.2

Supranational Processes

Constitution-making processes usually take place at the domestic level. In certain exceptional circumstances, however, these processes may also be supranational, as the attempt to adopt a Constitutional Treaty of the European Union has demonstrated. In this case, the challenges are probably even more problematic, since the constitutional sensitivities of different countries need to be accommodated. It is no coincidence that one of the main arguments against the decision not to include a reference to the Judeo-Christian values of Europe in the preamble to the European Constitutional Treaty was that this would not have respected the plurality of national constitutional sensitivities. However, it has been stressed that the choice of the European Convention to exclude all references to the Jewish and Christian roots of Europe was not neutral;24 and for this reason, some (including former German Chancellor Helmut Kohl) suggested to draw inspiration from the preamble to the Polish Constitution, which provides that: we, the Polish Nation, all citizens of the Republic, both those who believe in God as the source of truth, justice, good and beauty, as well as those not sharing such faith but respecting those universal values as arising from other sources, equal in rights and obligations towards the common good [...]. (emphasis added)

Those who favored the “Polish solution” argued that this would have recognized both religious and secular dimensions, thus meeting the wishes, for example, of both an Irish believer and a French layman.25 The case of the European Constitutional Treaty shows that supranational constitution-making processes tend to increase the likelihood of complicating debates over religion, especially when the countries involved are constitutionally heterogeneous, as is the case in Europe. 3.3

Constitutional History and Tradition

Another factor that often plays a role in the issue of religion in constituent processes is constitutional history and tradition. Indeed, in many cases constitutional framers have relied on previous constitutional texts and conventions, particularly when these incorporate fundamental principles regarding the relationship between the state and religion and/or regulate the place and the role of religious law. In France, for example, the crucial importance of the principle of secularism proclaimed in Article 1 of the 1946 Constitution (“France shall be an indivisible, secular, democratic and social Republic” (emphasis added)) was underlined during the process that led to the adoption of the 1958 Constitution. Indeed, in August 1958

See Bâli and Lerner, supra note 22, at 384 ff. See Joseph H. Weiler, Un’Europa cristiana. Un saggio esplorativo 68–69 (2003). 25 See Weiler, supra note 24, at 70–72. 23 24

Religion in constitution-making processes: comparative perspectives  261 Charles Blondel, a councilor of state, declared before the General Assembly of the Council of State that: It is necessary to consider the consequences that may result from the removal of terms contained in the previous Constitution. For example, the word ‘secular’. Nobody wants to re-establish a state religion; however, if this word is eliminated, a number of problems will emerge.26

The reaffirmation of “laïcité” in the Constitution of the Fifth Republic was indeed considered to be essential in order to guarantee the continuity of the French republican institutions. In Morocco too, “constitutional continuity” has been the watchword in the religious domain. In all five constitutions adopted by Morocco during the reign of King Hassan II (1962, 1970, 1972, 1992 and 1996), the provisions concerning religious freedom, the relationship between the state and Islam, and the role of the monarch as the Amir al-Mouminine (commander of the faithful) remained unchanged. Indeed, the wording of Article 6 (“Islam is the State religion, which guarantees to all the free profession of their beliefs”) and of Article 19 (“The King, Amir al-Mouminine, Supreme Representative of the Nation, the Symbol of the unity thereof, Guarantor of the perpetuation and continuity of the State, shall ensure the respect for Islam and the Constitution [...]”) has always remained the same; not to mention the fact that the Moroccan constitutions have never included a Sharia clause. The 2011 Constitution (adopted by King Mohammed VI in response to the protest demonstrations that had been held in the country following the Arab uprisings) introduced some changes (in particular, the “old” Article 19 was split into two provisions, namely Article 4127 and Article 42,28 with the intention of detaching the monarch’s spiritual power from temporal power), although de facto the continuity with the past continues to be very evident. In Morocco, this continuity can be explained by the king’s desire to maintain his undisputed leadership in the religious domain, also in view of the fact that he claims direct descent from the Prophet Mohammed.29

26 Cited by Jean-Pierre Delannoy, Les religions au Parlement français. Du général de Gaulle (1958) à Valéry Giscard d’Estaing (1975) 32 (2005). 27 Article 41 states that “The King, Amir al Mouminine [Commander of the Faithful], shall ensure respect for Islam. He shall be guarantor of freedom of worship. He shall preside over the Higher Oulema Council, which shall be entrusted with studying the issues submitted to it by the King. The Council shall be the only body empowered to issue officially approved religious opinions (fatwas) on the issues submitted to it, on the basis of tolerant principles, precepts and objectives of Islam [...] The King shall exercise, by royal decree, the religious prerogatives inherent in the institution of the Commandership of the Faithful, which are exclusively assigned to him under this article.” 28 Article 42 stipulates that “The King, Head of State, Supreme Representative, symbol of the unity of the nation, guarantor of the permanence and continuity of the State and supreme arbitrator between institutions, shall ensure compliance with the Constitution, proper functioning of constitutional institutions, protection of the nation’s democratic options and of the rights and freedoms of citizens and communities, as well as compliance with the international commitments of the Kingdom. He shall be guarantor of the independence of the country and of the territorial integrity of the Kingdom, within its authentic borders [...].” 29 See Francesco Biagi, The Separation and Distribution of Powers Under the New Moroccan Constitution, in Constitutionalism, Human Rights and Islam after the Arab Spring 495 ff. (Rainer Grote and Tilmann J. Röder eds., 2016).

262  Constitutions and religion 3.4

External Influences

Also external influences – sometimes consisting in colonial legacies – may be central in the processes of constitution making. In Latin America, for example, the effects of the process of evangelization undertaken by the Spanish Crown following the discovery of the New World in 1492 are still evident, as is shown by the fact that Catholicism continues to enjoy a privileged position in many Latin American constitutions. Indeed, the Catholic Church “pre-existed nations, was discoverer, conqueror, colonizer, and evangelizer, forger of identity and culture, inspiring legislation, customs, and education, and is even now the majority religion.”30 On the other hand, the evangelization mission was not part of the Portugal’s attitude toward colonization, which in part explains why the current 1988 Brazilian Constitution “is based on the principle of equalitarian treatment of all beliefs, openly pluralistic, yet addressing every manifestation of religion and protecting it, showing more liberty than other Latin American constitutions in the design of its charter.”31 Another interesting example is the Western (and in particular French) influence, which has bequeathed the notion of secularism to some Francophone African countries. It should be noted, however, that the concept of “laïcité” adopted in these countries in practice often differs significantly from the French model. In Senegal, for example, where all four constitutions (1959, 1960, 1963 and 2001) have proclaimed the secular nature of the country, the conception of secularism has been shaped particularly by the political and religious thought of Léopold Sédar Senghor, the first president of the country. In particular, his philosophy of secularism was founded on three elements: religious pluralism, the separation between state and religion, and the granting of a role to religions in supporting the ongoing process of nation building.32 Even in Turkey, secularism – which is one of the pillars of the country’s constitutional order – has developed in a way which is significantly different from the prevailing notions of secularism in Western democracies.33 Turkish secularism (laiklik) entails the subjection of the religious sphere to state control: indeed, “the protection of the state from religion goes well beyond separation to a pervasive effort by the state to define, shape and control religion.”34 The chief instrument through which the state exerts this control is the Directorate of Religious Affairs (Diyanet İşleri Başkanlığı, usually abbreviated to Diyanet). The examples of Francophone Africa and Turkey clearly demonstrate that, despite the influence of external factors during the constitution-making processes, the relationship between state and religion often develops in peculiar and distinctive ways, depending on the country in question. A contextual analysis is therefore crucial in order to fully grasp constitutional dynamics in the religious domain.

30 Carmen Asiaín Pereira, Religion and Religions in the Latin American Constitutional Framework, in Durham, Ferrari, Cianitto and Thayer eds., supra note 2, at 148. 31 Pereira, supra note 30, at 135. 32 See Souleymane Bachir Diagne, The Constitution of a “Laïc” African and Muslim Country: Senegal, in Bâli and Lerner (eds.), supra note 2, at 131 ff. 33 See Ergun Özbudun, Secularism in Islamic Countries. Turkey as a Model, in Constitutionalism in Islamic Countries. Between Upheaval and Continuity 137 (Rainer Grote and Tilmann J. Röder eds., 2012). 34 Martin van Bruinessen, The Governance of Islam in Two Secular Polities: Turkey’s Diyanet and Indonesia’s Ministry of Religious Affairs, 27 European Journal of Turkish Studies 4 (2018).

Religion in constitution-making processes: comparative perspectives  263

4.

THE MOST CONTENTIOUS ISSUES

Religion in constitution-making processes often raises a number of contentious issues, such as the religious versus secular character of the state, the status of religious law, the protection of religious freedom, the regulation of religious education, the identification of the institution responsible for interpreting religious issues, the relationship between religion and international human rights treaties, and the reference (or the non-reference) to religion in constitutional preambles. 4.1

The Religious versus Secular Character of the State and the Status of Religious Law

In the first place, it should be noted that “different religious traditions [...] present different kinds of challenges in a constitution-drafting context.”35 Thus, for example, Catholicism raises the question of relations between church and state; and in fact in countries such as Italy and Spain, the debates within the Constituent Assemblies focused specifically on the “Catholic question,” concerning the regulation of relations between the state and the Catholic Church.36 Islam, on the contrary, mainly raises the issue as to whether the constitution should define Islam as the religion of the state and whether the constitution should include a Sharia clause. The answers to both questions vary a lot from country to country. In the vast majority of Islamic countries, Islam has been defined as the state religion. In some cases, however, the framers have decided to exclude such a provision (e.g. in Indonesia); while in others, they have opted for an ambiguous formulation (e.g. in Tunisia, as discussed above). Similarly, Sharia clauses can be found in many constitutions (e.g. in Egypt and the Gulf monarchies), although there are also a number of Islamic countries in which Sharia is not mentioned in the constitution (e.g. in Morocco, Tunisia, Algeria and Jordan). The wording of these clauses may vary significantly. In Kuwait, for example, a very contentious issue within the Constituent Assembly concerned the decision over whether to include a provision stating that Sharia was “the” main source of legislation or “a” main source of legislation. ‘Utmân Khalîl ‘Utmân, the Egyptian constitutional law expert to the Assembly, “advised the members to adopt the softer ‘a’ version, if the assembly wanted to mark its attachment to Islam while avoiding being forced to comply with all its commands and prohibitions.”37 Eventually, the Assembly opted to include this lighter Sharia clause in the 1962 Constitution (Article 2). A similar debate concerning the Sharia clause took place in Egypt. Article 2 of the 1971 Constitution stipulated that “Principles of Sharia are a source of legislation” (emphasis added.) However, in May 1980 the Constitution was amended in order to facilitate the implementation of this provision and the principles of Sharia became the main source of legislation.38 Afterwards, the framers of the 2012 and 2014 Constitution decided to maintain the latter Bâli and Lerner, supra note 2, at 6. See Long (1990), supra note 14; De Carli, supra note 12, at 333 ff. 37 Gianluca Parolin, Religion and the Sources of Law: Sharî‘ah in Constitutions, in Durham, Ferrari, Cianitto, and Thayer (eds.), supra note 2, at 89; see also Nathan Brown, The Rule of Law in the Arab World. Courts in Egypt and the Gulf 165–66 (1997). 38 See Clark B. Lombardi, Constitutional Provisions Making Sharia ‘A’ or ‘The’ Chief Source of Legislation: Where Did They Come From? What Do They Mean? Do They Matter?, 28 American University International Law Review 754–58 (2013). 35 36

264  Constitutions and religion wording.39 Debates concerning Sharia clauses and Islam as the state religion are particularly revealing, as they represent one of the most evident expressions of the broader issue of the nature of the state, with specific reference to the religious-secular divide. In some cases, Islam also raises the question as to whether the constitution should provide for religious courts. Some constitutions (e.g. Jordan, Malaysia and Pakistan) provide for Sharia courts (and sometimes also for courts of other religious communities), which have jurisdiction in matters of personal status. In some cases, religious courts dealing with Islamic law are also established in countries where the predominant religion is not Islam. In Kenya, for example, where the religion professed by the vast majority of the population is Christianity, Kadhis courts (which deal with issues of Islamic law relating to personal status) had already been enshrined in the independence Constitution of 1963 and were subsequently confirmed within the 2010 Constitution. Their inclusion in the new constitution, however, was a major contentious issue during the constitution-drafting process: “Muslim groups have sometimes threatened to pull out if they did not get recognition of Kadhi courts; Christian groups have threatened the reverse.”40 As recalled above, the church and clergy even invited Christian voters to reject the proposed new Constitution in the final referendum, although the Kenyan people overwhelmingly endorsed it. 4.2

Religious Freedom

As far as religious freedom is concerned, comparative examples show that since the Second World War, the vast majority of constitutions from around the world include some forms of protection for this freedom. In other words, there is a general consensus among constitutional framers that religious freedom can be limited – even severely – but cannot be excluded altogether from a constitution. The exceptions to this rule are very rare. These include, for example, the 1991 Constitution of Mauritania (which stipulates that Islam is the religion of the people and the state (Article 5), but does not mention freedom of belief and worship, and does not list religion as one of the grounds on which discrimination is prohibited), as well as the latest draft constitution of Libya adopted in July 2017. This Constitution grants special recognition to Islam and Sharia; however, in contrast to the current provisional Constitution (namely the 2011 Constitutional Declaration), it does not contain any specific provision guaranteeing the free exercise of religious practices, and does not include religion among the grounds on which discrimination is prohibited. It should be pointed out that most constitutions in the Arab world do indeed recognize freedom of religion. However, this usually does not extend to freedom of conscience, which is interpreted as the right “to choose a religion, to change religion, or not to have a religion.”41 This exclusion is far from surprising since, under Sharia, apostasy is not allowed.42 In Morocco, for example, an initial draft of the 2011 Constitution contained a clause guaranteeing freedom

39 See Nathan J. Brown and Clark B. Lombardi, Contesting Islamic Constitutionalism after the Arab Spring. Islam in Egypt’s Post-Mubarak Constitutions, in Grote and Röder (eds.), supra note 29, at 245 ff. 40 Jill Cottrell and Yash Ghai, Constitution Making and Democratization in Kenya (2000–2005), 14 Democratization 19 (2007). 41 Yadh Ben Achour, Tunisie. Une révolution en pays d’Islam 355 (2017) . 42 See Rudolph Peters and Gert J.J. De Vries, Apostasy in Islam, 17 Die Welt des Islams 1 ff. (1976–77).

Religion in constitution-making processes: comparative perspectives  265 of conscience; however, following strong opposition from the Islamist moderate party Parti de la justice et du développement, this provision was abandoned and the old formula, which only protected freedom of religion, was retained.43 In Tunisia, on the other hand, following debates among the political parties represented in the Constituent Assembly, freedom of conscience was introduced in the fourth draft Constitution of June 1, 2013, and was then maintained in the final 2014 Constitution.44 Serious constraints on religious freedom can also be found in Nepal, where all of the constitutions adopted from the end of the 1950s onwards contain a provision stating that no person is permitted to convert another person to a different religion.45 Moreover, in 2017 Parliament passed legislation criminalizing religious conversion and the hurting of religious feelings, thus raising major concerns for religious minorities.46 It should be noted that the ban on conversion was also reiterated in the 2007 provisional Constitution and in the current 2015 Constitution, despite the fact that they define Nepal as a “secular” state. However, the notion of secularism provided for under the 2015 Constitution seems to favor Hinduism, which is the religion of the majority of the population. Thus, for example, the framers specified in Article 4 that the term “secular” must be interpreted as “religious and cultural freedom, along with the protection of religion and culture being practiced since ancient times” (emphasis added), thus implicitly referring to Hinduism.47 In Hungary, religious freedom, which was not a matter of central concern during the 2010–11 constituent process, became a very contentious issue when Parliament – which in practice acted as a “vastly expanded constitution-making assembly” (emphasis added)48 – adopted legislation implementing the relevant constitutional provisions on religious freedom. In particular, by Act No. CCVI of 2011 (the so called “Church Act”), the Hungarian Parliament established a framework for the registration (or de-registration) and official recognition of churches. One of the most controversial aspects of this law – which was subsequently declared partially unconstitutional by the Constitutional Court,49 as well as being censured by the European Court of Human Rights as inconsistent with the European Convention on Human Rights50 – was that only religious communities which had a presence in the country for at least 20 years and with at least 1000 founding members could obtain the status of “churches.” Moreover (and this was probably the harshest criticism), Parliament was the institution responsible for

43 See Abdellah Tourabi, Constitutional Reform in Morocco: Reform in Times of Revolution, Arab Reform Initiative 11 (2011), www​.arab​-reform​.net/​en/​node/​526, last accessed May 17, 2020. 44 See Ben Achour, supra note 41, at 355–56. 45 See Mara Malagodi, The Locus of Sovereign Authority in Nepal, in Unstable Constitutionalism. Law and Politics in South Asia 68 ff. (Mark Tushnet and Madhav Khosla eds., 2015); Kanak Bikram Thapa, Religion and Equal Treatment in the Nepalese Constitution, in Durham, Ferrari, Cianitto, and Thayer (eds.), supra note 2, at 239 ff. 46 See Nepal Criminalises Conversions and ‘Hurting Religious Sentiment’, World Watch Monitor (August 22, 2017), www​.worldwatchmonitor​.org/​coe/​nepal​-criminalises​-conversions​-hurting​-religious​ -sentiment/​, last accessed May 17, 2020. 47 On religion and secularism in Nepal, see Religion, Secularism, and Ethnicity in Contemporary Nepal (David N. Gellner, Sondra L. Hausner, and Chiara Letizia eds., 2016). 48 Renáta Uitz, Freedom of Religion and Churches: Archeology in a Constitution-making Assembly, in Constitution for a Disunited Nation. On Hungary’s 2011 Fundamental Law 197 (Gábor Attila Tóth ed., 2012). 49 See in particular Decision No. 6/2013 (III. 1.). 50 See in particular Magyar Keresztény Mennonita Egyház and Others v. Hungary (April 8, 2014).

266  Constitutions and religion approving the applications for registration, without any due process safeguards. Therefore, the implementing legislation, which de facto amounted to an extension of the constitution-making process, partially departed from international standards and comparative best practices.51 4.3

Religious Education

A close correlate of religious freedom is the regulation of religious education, which has often been a matter of debate within constitution-drafting processes in European countries. In Italy, for example, discussions in this area resulted in clashes between representatives of the Christian Democrats (who argued in favor of freedom of education and equality of treatment between state schools and private schools) and representatives of Socialist and Communist parties (who feared that the recognition of equality between state schools and private schools might threaten the secular nature of the state). Following a long and complicated debate, the Constituent Assembly adopted a compromise position between these two opposing views.52 Specifically, Article 33(3) of the 1948 Constitution stipulates that “Entities and private persons have the right to establish schools and institutions of education,” but this must occur “at no cost to the State.” Religious education was also an important matter of debate in Germany. In particular, discussions concerning the right of parents to decide on the religious character of schools (Elternrecht) were so sensitive that the Bavarian Land Parliament decided to reject the 1949 Basic Law during the ratification process “due to – among other things – the constitutional decision in favor of public schools instead of a parent’s right to decide on the character of the school (as secular, denominational, or based on another worldview).”53 4.4

Institutions Responsible for Interpreting Religious Matters

Another contentious issue in constitution-making processes, especially in religiously divided societies, is which institution should be identified as being responsible for interpreting religious matters. The cases of Egypt, Pakistan and Israel are emblematic. In Egypt, the Supreme Constitutional Court has for a long time played a crucial role in interpreting the principles of Sharia. Indeed, during the 1980–2011 period the court took the view, in the light of Article 2 (which stipulated, as mentioned above, that “Principles of Sharia are the main source of legislation”), that Parliament was required to abide by Sharia principles when drafting laws, and that any legislation at odds with these principles would have been declared unconstitutional.54 The court also clarified that legislation could only be ruled unconstitutional on the basis of “absolute” principles of Sharia (i.e. principles that are absolutely certain with respect to their authenticity and meaning), but not also of “relative” principles (i.e. principles the authenticity See Uitz, supra note 48, at 208 ff. See Giovanni Sale, La scuola nel dibattito alla Costituente, La civiltà cattolica, quaderno 3717, 230 ff. (2005). 53 Tine Stein, Constitution-Making and Religion in West Germany in the Shadow of State Failure, in Bâli and Lerner (eds.), supra note 2, at 75. 54 See in particular Case No. 20, Judicial Year 1 (May 4, 1985). In this ruling, the court clarified that only laws adopted after the 1980 amendment of Article 2 of the Constitution had to be consistent with the principles of Sharia. Following this amendment, principles of Sharia ceased to be “a” source of legislation, and became “the main” source of legislation. 51 52

Religion in constitution-making processes: comparative perspectives  267 and meaning of which are not certain). Moreover, legislation had to be consistent with the “goals” of Sharia.55 It is important to point out that, when interpreting Sharia principles, the court often “reflected liberal modernist sensibilities,”56 thus promoting liberal values and the protection of human rights, including women’s rights.57 The Salafists, which were strongly opposed to this understanding of Islam, managed to impose their view during the 2012 constitution-making process, confirming the power of the Supreme Constitutional Court to review the compatibility of laws with Sharia principles, but limiting the possibility to interpret these principles in a modernist fashion. Indeed, the 2012 Constitution maintained the same wording of Article 2, but also included a new provision containing a specific definition of Sharia principles (Article 219).58 The aim of this provision was to force the court to depart from its previous jurisprudence and adopt a more traditional interpretation of Islam. Furthermore, again in an attempt to constrain the interpretative authority of the court, the Constitution introduced a new provision stating that Al-Azhar had to be consulted in matters relating to Sharia (Article 4). Following the fall of President Morsi in July 2013, a new constitution-drafting process began, which led to the adoption of the 2014 Constitution. Only two Islamists were represented in the Constituent Assembly, with the consequence that liberals were able to (re-) establish the authority of the Supreme Constitutional Court to interpret Sharia. Indeed, the framers maintained the wording of Article 2, but eliminated Article 219, did not confirm the consultative role of Al-Azhar, and included in the preamble a provision stating that in defining the principles of Sharia “the point of reference for the interpretation thereof is the relevant texts in the collected rulings of the Supreme Constitutional Court.”59 The identification of the institution responsible for defining Islamic law was one of the most contested issues also in Pakistan. Indeed, during the constitution-making or constitutional reforms processes that took place in the country following its independence (in particular in 1956, 1962–63, 1973, 1979–80, and 1985), the debates revolved, inter alia, around the allocation of the power to define Islamic law between Parliament, the executive and the courts. Generally speaking, Pakistan’s constitutional history has been characterized by the preeminence of Parliament in delineating Islamic law,60 although the role of courts in this area

55 See Case No. 7, Judicial Year 8 (May 15, 1993). See also Case No. 8, Judicial Year 17 (May 18, 1996), available in English in Nathan J. Brown and Clark B. Lombardi, The Supreme Constitutional Court of Egypt on Islamic Law, Veiling and Civil Rights: An Annotated Translation of Supreme Constitutional Court of Egypt Case No. 8 of Judicial Year 17 (May 18, 1996), 21 American University International Law Review 437 ff. (1996). 56 Brown and Lombardi, supra note 39, at 254. 57 See Constitutional Jurisprudence on Fundamental Rights: A Digest of Selected Cases, in Human Rights and Democracy. The Role of the Supreme Constitutional Court of Egypt 229 ff. (Kevin Boyle and Adel Omar Sherif eds., 1996); Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (2007); Clark B. Lombardi, Egypt’s Supreme Constitutional Court: Managing Constitutional Conflict in an Authoritarian, Aspirationally “Islamic” State, in 3 Journal of Comparative Law 242 ff. (2008). 58 Article 219 stipulates that “The principles of Sharia include general evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community.” 59 See Brown and Lombardi, supra note 39, at 245 ff. 60 See Matthew J. Nelson, Islamic Law in an Islamic Republic: What Role for Parliament?, in Bâli and Lerner (eds.), supra note 2, at 235 ff.

268  Constitutions and religion has increased significantly in recent decades – especially since 1980, when a Federal Shariat Court, responsible for deciding whether or not a law was repugnant to Islam, was established.61 In Israel, the conflict between the legislature and the judiciary regarding the authority in charge of interpreting the state’s foundational norms and values is so sensitive that it has been one of the main reasons for the failure to adopt a codified constitution. This was also acknowledged by one of the justices on the Israeli Supreme Court, Ariel Rubinstein, in a judgment delivered in 2010: “the main reason for the incompletion [of the constitution] so far, in my view [...] is not the content of the constitution but rather the issue of who should interpret it.”62 Fears of orthodox groups were focused in particular on the role of the Supreme Court as a promoter of liberal-secular values – fears which have increased significantly following the so-called “constitutional revolution” achieved by the court (and in particular its Chief Justice Aharon Barak) in 1995 with the well-known decision in United Mizrahi Bank v. Migdal Cooperative Village. In this landmark judgment, the court ruled that the Knesset also has the power to enact Basic Laws with supra-legislative constitutional status, alongside its “ordinary” legislative function, and that the court may strike down any ordinary legislation that contrasts with these Basic Laws.63 4.5

Religion and International Human Rights Treaties

Sometimes the debates concerning religion during constitution-writing processes are strictly related to the discussions regarding the status of international human rights treaties and conventions. Following the Arab uprisings, a number of North African and Middle Eastern countries have adopted a noticeably favorable stance toward these treaties. However, the desire to preserve national identity (especially in relation to religion) has thus far prevented their full incorporation into domestic legal systems. The 2011 Moroccan Constitution offers a paradigmatic example of this “tension.” Indeed, while the Constitution proclaims its supremacy over international norms, as stated in Article 55(4) (“If the Constitutional Court [...] declares that an international commitment contains a provision contrary to the Constitution, its ratification may only intervene after the revision of the Constitution”), the preamble stipulates that Morocco “grant[s] to international conventions duly ratified by it supremacy over domestic law of the country,” but only “within the framework of the provisions of the Constitution, the laws of the Kingdom, and respect for its immutable national identity [...]” (emphasis added). The “immutable national identity” clearly recalls Islam, which is defined by the Constitution as the state religion (Article 3). In the light of this ambiguous wording, it remains to be seen whether the supremacy of international conventions over domestic law will be the rule or

61 See Article 203D of the Constitution. It should be noted, however, that the Federal Shariat Court is not entitled to review all sharia-oriented legislation, since Article 203B of the Constitution states that the court cannot check, inter alia, Muslim personal law. 62 Cited from Lerner, supra note 10, at 278. 63 See Aharon Barak, La révolution constitutionnelle: la protection des droits fondamentaux, 72 Pouvoirs 17 ff. (1995). Among those who question this “constitutional revolution,” see Menachem Mautner, Protection of Liberal Rights Amidst a ‘War of Cultures’ (Kulturkampf) between Secular and Religious Groups, 48 Israel Yearbook on Human Rights 125 ff. (2018).

Religion in constitution-making processes: comparative perspectives  269 rather the exception.64 A similar ambiguity can also be found in Article 19,65 which allows for two diametrically opposed interpretations in relation to the principle of gender equality: one “in favor of universalism” and the other “toward conservatism.”66 Striking a balance between the need to respect international human rights treaties on the one hand, and the preservation of national identity (especially in relation to religion) on the other, is extremely complex and represents, now more than ever, one of the major challenges confronting Arab countries.67 4.6

Religion in Constitutional Preambles

As the attempt to adopt the European Constitutional Treaty clearly demonstrated, the decision over whether to include reference to religion in the preamble may be extremely problematic. One of the main concerns is that such a reference (in particular, when the reference is made to the religion professed by the majority of the population) may not remain merely symbolic, but may affect the substantive content of ordinary legislation and/or the jurisprudence of Constitutional and Supreme Courts, especially when the preamble is considered to constitute an integral part of the Constitution, and may hence be used as a parameter for constitutional review.68 Although it is often a divisive issue, in some cases a reference to religion in the preamble may become a crucial tool in guaranteeing the unity of the country, as has been apparent in relation to Indonesia. During the 1945 constitution-making process, President Sukarno presented to the drafting committee the five principles (pancasila) on which – in his opinion – the country should be based. The pancasila – which consisted of “belief in the One and Only God,” “a just and civilized humanity,” “the unity of Indonesia,” “democracy” and “social justice” – were incorporated in the preamble to the 1945 Constitution and have survived to this day. It should be stressed that the framers did not adopt the “Jakarta Charter” either in 1945 or within subsequent constitutional amendments. This included, among other things, an obligation for Muslims to follow Sharia, which would have resulted in the expansion of Islamic law beyond the realm of family law. The decision taken by the framers (including representatives from most Islamist parties during the constitutional amendment process that took place between 1999 and 2002) to maintain the pancasila and to reject the “Jakarta Charter” can be explained by their willingness to promote unity while recognizing Indonesia’s diversity. Indeed, any alteration of relations between the state and religion in a country hosting numer64 Saïd Ihraï, Le droit international et la nouvelle Constitution, in La Constitution marocaine de 2011. Analyses et commentaires 185 ff. (Centre d’Études Internationales eds., 2012). 65 Article 19 stipulates that “The man and the woman enjoy, in equality, the rights and freedoms of civil, political, economic, social, cultural and environmental character, enounced in this Title and in the other provisions of the Constitution, as well as in the international conventions and pacts duly ratified by Morocco and this, with respect for the provisions of the Constitution, of the immutable values [“constantes”] of the Kingdom and of its laws” (emphasis added). 66 Nadia Bernoussi, Morocco’s Constitutional Court after the 2011 Reforms, in Grote and Röder (eds.), supra note 29, at 705. 67 See Francesco Biagi, Women’s Rights and Constitutional Implementation in the MENA Region: Challenges and Perspectives, in Rethinking the Transition Process in Syria: Constitution, Participation, and Gender Equality 149–50 (Claudia Padovani and Francesca Helm eds., 2018). 68 See Justin O. Frosini, Constitutional Preambles. At a Crossroads between Politics and Law (2012); Wim Voermans, Maarten Stremler, and Paul Cliteur, Constitutional Preambles: A Comparative Analysis (2017).

270  Constitutions and religion ous non-Muslim communities (mainly Christians) risked undermining national integrity. Therefore, Indonesia cannot be defined either as an Islamic state or as a secular one. Rather, it is a country “based on a specifically Indonesian ethos, pancasila, that synthesizes various cultural and religious currents from the archipelago’s major traditions.”69

5.

CONCLUDING REMARKS

In the light of the numerous and extremely complicated variables that characterize the role of religion in constitution-making processes, one might be tempted to conclude that it is not possible to identify general rules and that every country “has its own story.” This conclusion might not be too far removed from reality. Still, it seems that at least three general observations can be made. In the first place, the comparative analysis has shown that the issue of religion in constitutional design is often emotionally charged and sometimes even infused with irrationality. These characteristics have been even more evident in constitution-drafting processes occurring in recent years (both in Western countries and in emerging democracies), where religion has become an increasingly divisive issue. This trend in constituent processes seems to be closely related to the fact that religion is currently one of the major reasons for “conflict” (in the broad sense of the term): from religious discrimination to terrorism, from religious-based wars to a possible “clash of civilizations.”70 Moreover, it must be pointed out that these conflicts are both “inter-religious” (e.g. Christianity versus Islam, Hinduism versus Islam, Judaism versus Christianity/Islam) and “intra-religious” (e.g. Sunni versus Shia). Second, it should be noted that in some cases, where framers have been unable to reach a clear agreement concerning the most contentious issues surrounding religion, they have opted for “incrementalist” strategies, such as the use of ambiguous wording and/or contradictory constitutional provisions, the deferral of certain matters to ordinary legislation or the inclusion within the constitution of non-justiciable clauses.71 These strategies have both advantages and disadvantages. On the one hand, they reduce the risk of a stalemate in the constitution-drafting process (especially when the divisions over religion are particularly strong), and permit constituted actors – such as Parliament and courts – to exercise a greater flexibility in shaping (or reshaping) certain controversial issues. On the other hand, however, by failing to address certain questions regarding religion-state relations, incrementalism entails some serious risks, including the exacerbation of existing religious divisions, or even the strengthening of repressive policies against vulnerable categories such as women and religious minorities.72 The case of India clearly brings out the pros and cons of incrementalist strategies. One of the most divisive issues during constituent debates concerned the formalization of a uniform civil code, which would have replaced religious laws in matters relating to personal status. The Constituent Assembly decided to include the state’s commitment to adopt this code within the 69 Mirjam Künkler, Constitutionalism, Islamic Law, and Religious Freedom in Postindependence Indonesia, in Bâli and Lerner (eds.), supra note 2, at 201. 70 See Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (1996). 71 See Bâli and Lerner, supra note 22, at 378 ff. 72 See Bâli and Lerner, supra note 22, at 378 ff. On the advantages and disadvantages of deferral in constitutional design see also Rosalind Dixon and Tom Ginsburg, Deciding not to Decide: Deferral in Constitutional Design, 9 International Journal of Constitutional Law 636 ff. (2011).

Religion in constitution-making processes: comparative perspectives  271 chapter of the Constitution dealing with “Directive Principles of State Policy,” the provisions of which are not justiciable. In practice, this meant that “the state would tolerate different bodies of religious laws for marriages and divorce of the citizens [...], leaving the primacy question of civil or religious law to the courts.”73 By deferring this issue to ordinary legislation (and the courts) the Constituent Assembly paved the way for the adoption of the Constitution. However, the matter has remained unresolved, religious claims have not stopped and the courts have been forced to rule on extremely sensitive religious issues, such as the recent case ruled on by the Supreme Court concerning the practice of triple talaq.74 The third observation concerns the fact that constitution-making processes are often so deeply affected by religion that the latter should always be considered as one of the fundamental elements to be taken into account when analyzing these processes. Indeed, comparative scholars have mainly focused on elements such as the type of process (whether top-down or bottom-up), popular participation, the degree of openness and transparency, the role of political parties, and the influence of external actors and factors,75 but have not dedicated sufficient attention to religion. It has only been very recently that part of the literature has put religion at the heart of its comparative analysis of constitution-drafting processes, for example by focusing on religiously divided societies.76 However, the impression is that only the tip of the iceberg has been examined thus far: further research in this vast and complex field is therefore very much required.

Shankar, supra note 15, at 220. In August 2017, in the case Shayara Banu v. Union of India, the Indian Supreme Court struck down the practice of triple talaq, which allows Muslim men to divorce their wives by pronouncing “talaq” (“I divorce you”) three times. On this decision see Ratna Kapur, Secularism’s Others: The Legal Regulation of Religion and Hierarchy of Citizenship, in this volume; Arundhati Katju, Triple Talaq: Personal Law and Colonial Shadows in Contemporary India, ConstitutionNet (February 27, 2018), www​.constitutionnet​.org/​news/​triple​-talaq​-personal​-law​-and​-colonial​-shadows​-contemporary​-india, last accessed May 17, 2020. The Indian Supreme Court has also been requested to rule on the constitutionality of the Islamic practices of polygamy and “nikah-halala”, under which a man cannot remarry his former wife without her marrying someone else, consummating that marriage, getting a divorce and observing the period of separation (“Iddat”) (see Supreme Court to Examine Constitutional Validity of Polygamy, 'Nikah Halala' among Muslims, The Times of India (March 26, 2018), https://​timesofindia​ .indiatimes​.com/​india/​supreme​-court​-to​-examine​-constitutional​-validity​-of​-polygamy​-nikah​-halala​ -among​-muslims/​articleshow/​63462605​.cms, last accessed May 17, 2020. 75 Sujit Choudhry and Tom Ginsburg (eds.), Constitution Making (2016); Claude Klein and András Sajó, Constitution-making: Process and Substance, in The Oxford Handbook of Comparative Constitutional Law 419 ff. (Michel Rosenfeld and András Sajó eds., 2012). 76 See Bâli and Lerner (eds.), supra note 2; Bâli and Lerner, supra note 8; Asli Ü. Bâli and Hanna Lerner, Religion and Constitution Making in Comparative Perspective, in Landau and Lerner (eds.), supra note 16, at 258 ff. 73 74

16. Religion and political parties Luca Ozzano

1. INTRODUCTION Looking at the role of religion in political parties in the context of contemporary nation states means first and foremost dealing with a very controversial category: that of religious parties. According to Nancy Rosenblum, religious parties are the “cold shoulder of liberal democratic thought.” They are often regarded negatively because, in the eyes of their (often secular) critics: they are not real parties, and tend to be “opportunistic and not committed to electoral democracy” and its values; they are “intransigently ideological, uncompromising, militant, extremist” and aimed at “conforming public policy to the imperatives of a single faith;” they are “authoritarian in their organization and goals;” they are “culturally conservative, even anti-modern,” and resist progressive social policies put into place in modern democracies; and they can engender a “potentially radical political instability.”1 This negative view of religious parties is largely a consequence of the preeminence in nineteenth and twentieth-century thought of the so-called “secularization paradigm,” according to which the advent of modernity also meant the extinction of religions – or at least their disappearance from the public sphere, to become a merely private fact.2 This is the reason why, after the return of religion to the public sphere in the 1970s and 1980s,3 many social scientists preferred to ignore this phenomenon; to see its threat “evaporate, becoming a bad dream limited to the eighties.”4 Therefore, political science had to wait for the 1990s if not the 2000s for a proper analysis of the role of religion in political parties and, more broadly, in contemporary political systems.5 This did not mean, however, that the category of religious parties became less controversial. On the contrary, more and more criticisms were levelled against it. In addition to the historical and normative reasons explained above, emphasis was often put on methodological and definitional problems. On the one hand, if we adopt a strict definition of “religious parties” (e.g. M. Hakan Yavuz defines them as parties “whose ideology is derived from or shaped by religious ideas and

1 Nancy L. Rosenblum, Religious Parties, Religious Political Identity, and the Cold Shoulder of Liberal Democratic Thought, 6 Ethical Theory Moral Pract. 23–53, 42 (2003). 2 William H. Swatos and Kevin J. Christiano, Introduction – Secularization Theory: The Course of a Concept, 60 Sociol. Relig. 209–28 (1999); Rodney Stark, Secularization, R.I.P., 60 Sociol. Relig. 249–73 (1999); Jeff Haynes, Religion, Secularisation and Politics: A Postmodern Conspectus, 18 Third World Q. 709–28 (1997). 3 Gilles Kepel, La revanche de Dieu : chrétiens, juifs et musulmans à la reconquête du monde (1991); José Casanova, Public Religions in the Modern World (1994). 4 Bruce B. Lawrence, Defenders of God: The Fundamentalist Revolt Against the Modern Age 8 (1989). 5 Pippa Norris and Ronald Inglehart, Sacred and Secular: Religion and Politics Worldwide (2004); Jeffrey Haynes, Routledge Handbook of Religion and Politics (2009); Monica Duffy Toft et al., God’s Century: Resurgent Religion and Global Politics (2011).

272

Religion and political parties  273 which mobilizes the grassroots on the basis of shared religious identities”; and which seek “regime change by implementing their religious worldviews”),6 we will include in this category only a relatively small group of extremist parties. On the other hand, if we take into account more broadly the role of religion in political parties, we find that very different kinds of parties – often with very little in common – exploit or are influenced by religion. Moreover, most such parties would reject the label “religious,” claiming that they are secular. A probably more interesting insight on the role of religion in political parties may be drawn from the recurring features that we can see in political parties that are broadly recognized as “religious.” First, they are marked by an “associational nexus” with religious institutions and associations, which help to create the party and subsequently to mobilize its grassroots.7 However, religious parties cannot be regarded as a mere extension of religious organizations in politics; as they grow, they usually develop their own organization and a specific message, which is often different from that proposed by the religious institutions they stem from.8 This also means that, while in their early phases these parties are frequently led by clerics, they often develop a lay elite which competes with religious leaders in the interpretation of religious texts.9 As regards their aims, they often have a defensive stance, in order to “protect” society from the imposition of secular ideologies allegedly aimed at erasing or marginalizing religion; however, they can also adopt more aggressive stances, in order to widen the role of religious values in society.10 Sometimes their religious orientation is very clearly mirrored by their platforms and even by their names; in other cases, however, this is more difficult to discern because it comes disguised in secular attire – for strategic reasons, to mark their independence from religious institutions; but also for legal reasons, where the existence of religious parties is forbidden by law.11 However, the inclusion of secular ideas and representatives in religious parties can also be the effect of endogenous evolution and moderation,12 and an organizational evolution toward the “catch-all” model.13 This review seems to confirm the caveats mentioned above in relation to the category of religious parties, since most of these features can be applied to very different kinds of “religious” parties, and even to formally secular parties with an appeal partially based on religion. Many of the problems linked to the category of religious parties may be solved by adopting the concept of a “religiously oriented party,” defined by Ozzano and Cavatorta14 as “a party that can be explicitly religious or formally secular, where religious values in its manifesto are clearly identifiable, where explicit appeals to religious constituencies are made and/or where M. Hakan Yavuz, Secularism and Muslim Democracy in Turkey 7 (2009). Rosenblum, supra note 1; Stathis N. Kalyvas, The Rise of Christian Democracy in Europe (1996). 8 Payam Mohseni and Clyde Wilcox, Religion and Political Parties, in Routledge Handbook of Religion and Politics 211–30 (Jeffrey Haynes ed., 2009); Yavuz, supra note 5. 9 Rosenblum, supra note 1; Kalyvas, supra note 7. 10 Rosenblum, supra note 1. 11 Giorgio Galli, I partiti politici italiani (1943–2004) (2004); Yavuz, supra note 6. 12 Francesco Cavatorta and Fabio Merone, Moderation Through Exclusion? The Journey of the Tunisian Ennahda from Fundamentalist to Conservative Party, 20 Democratization 857–75 (2013). 13 Otto Kirchheimer, The Transformation of the Western European Party Systems, in Political Parties and Political Development (Myron Weiner et al. eds., 1966) 177–200; André Krouwel, Party Models, in Handbook of Party Politics 249–69 (Richard S. Katz and William Crotty eds., 2006). 14 Luca Ozzano and Francesco Cavatorta, Introduction: Religiously Oriented Parties and Democratization, 20 Democratization 799–806, 800 (2013). 6 7

274  Constitutions and religion significant religious factions exist within the party.” The novelty of this concept is represented by the idea that a party is not necessarily “religious” or “secular” in binary terms; on the contrary, different kinds of parties can have different degrees of religious orientation, according to three criteria: (1) the presence of explicit or implicit references to religious values in their manifestos; (2) the religious identity of a sizeable part of their constituency; and (3) the existence of significant religiously oriented factions within the party. This definition enables the researcher to analyze the role of the religious factor even in formally secular parties, which are usually not included in the category of “religious parties,” but which nonetheless have some kind of religious orientation. Since religious parties often turn out to be very different from each other in terms of ideology, organization and social base, this also makes possible the construction of a typology of religiously oriented parties. In particular, the typology elaborated by Ozzano15 (see Table 16.1 at the end of this chapter) provides the structure for this chapter, by proposing five types of religiously oriented parties: fundamentalist, conservative, progressive, nationalist and camp.

2.

TYPES OF RELIGIOUSLY ORIENTED PARTIES

2.1 Fundamentalist The “fundamentalist” type party seeks “to reorganize state and society around a strict reading of religious doctrinal principles;” therefore, in the view of their supporters, there must be no separation between religion and state, and religious norms must be imposed on all citizens, irrespective of their private religious beliefs.16 Looking more closely at their characteristics, we find that: [g]iven the far-reaching objectives of these parties (which may verge on the totalitarian), the organizational development of these parties and the scope of their activities are extensive. Member involvement and identification is substantial and even intense, and ancillary organizations establish a presence at the local level throughout society [...] authority relations within the party are hierarchical, undemocratic and even absolutist, and members are disciplined and devoted. Religious fundamentalist parties mobilize support not only by invoking religious doctrine and identity, and by proposing policies derived from those principles, but also through selective incentives; they often perform a wide range of social welfare functions which aid in recruiting and solidifying the loyalty of members. This web of organized activities and services encapsulates members within a distinct subculture.17

A striking feature of these parties is their problematic relation with democracy and pluralism, since they are not really committed to democratic values and to the acceptance of different points of view as legitimate. Since their rise to power might imply the end of democracy, they may be included in the broader category of anti-system parties, which seek regime change 15 Luca Ozzano, The Many Faces of the Political God: A Typology of Religiously Oriented Parties, 20 Democratization 807–30 (2013). 16 Richard Gunther and Larry Diamond, Types and Functions of Parties, in Political Parties and Democracy 3–39, 21–22 (Larry Diamond and Richard Gunther eds., 2001). 17 Richard Gunther and Larry Diamond, Species of Political Parties: A New Typology, 9 Party Polit. 167–99, 183 (2003).

Religion and political parties  275 rather than just a majority change18 and are sometimes even ready to achieve this end through the use of violence.19 This problem, in the case of Islamist parties, has been summarized by Jillian Schwedler as “a paradox of democracy.”20 Moreover – for example, in the Middle East and North Africa – parties often act within regimes which are non-democratic or not fully democratic, which in many cases impose bans on fundamentalist parties and their activities. This forces these parties underground or to act without official recognition. Such bans have sometimes led to violent outcomes, as in the case of the Islamic Salvation Front in Algeria; but at other times, to moderation processes, as in the case of the Welfare Party in Turkey.21 Fundamentalist parties, moreover, do not simply aim to defend the role of religion in society, as in the case of the conservative type (see below); in Neumann’s words, they are parties of “total integration,” with “ambitious goals of seizing power and radically transforming societies, demanding the full commitment and unquestioning obedience of members.”22 It is not by chance that fundamentalist parties, especially Islamist ones, have been compared to the phenomenon of totalitarianism in twentieth-century Europe.23 This totalitarian attitude, often underpinned by patriarchal traditions, also implies a view of human rights – very commonly in relation to women, lesbian, gay, bisexual and trans (LGBT) people, and religious minorities – which is incompatible with the notion of human rights enshrined in the Universal Declaration of Human Rights and other international instruments. Although fundamentalist parties are usually concerned with issues directly related to the role of religion in society and the family, they can sometimes share some features of the nationalist type – as, for example, in the case of Israel’s Kach.24 On the other hand, an extensive literature exists on the possibility that such parties can follow a trajectory of moderation through inclusion in democratic institutions or other kinds of evolutionary paths.25 In organizational terms, these parties are mass based, with a wide membership (although sometimes – especially in their early phases – they rely on the grassroots support of some religious movement or group), and a wide net of activists. This is also related to their welfare activities in support of the poorer sectors of the population – particularly in the shantytowns on the outskirts of major cities, where these parties often find a wide basin of voters, especially among immigrants from rural areas who struggle to find an identity in big cities. Rural and conservative areas are the other source of militants and voters for this type of party; although some sectors of the educated bourgeoisie may also support them in certain contexts and Giovanni Sartori, Parties and Party Systems: A Framework for Analysis (1976). Jillian Schwedler, Faith in Moderation: Islamist Parties in Jordan And Yemen (2006). 20 Jillian Schwedler, A Paradox of Democracy? Islamist Participation in Elections, Middle East Rep. 25–29, 41 (1998). 21 Luca Ozzano, Religion, Political Actors, and Democratization: The Turkish Case, 7 Polit. Relig. 590–612 (2014). 22 Gunther and Diamond, supra note 17, at 169; Sigmund Neumann, Towards a Comparative Study of Political Parties, in Modern Political Parties 395–421 (Sigmund Neumann ed., 1956). 23 S.N. Eisenstadt, Fundamentalism, Sectarianism, and Revolution: The Jacobin Dimension of Modernity (2000); Ernest Gellner, Fundamentalism as a Comprehensive System: Soviet Marxism and Islamic Fundamentalism Compared, in Fundamentalisms Comprehended 277–87 (Martin E. Marty and R. Scott Appleby eds., 1995). 24 Aviezer Ravitzky, Messianism, Zionism, and Jewish Religious Radicalism (1996). 25 Cavatorta and Merone, supra note 12; Manfred Brocker and Mirjam Künkler, Religious Parties Revisiting the Inclusion-Moderation Hypothesis - Introduction, 19 Party Polit. 171–86 (2013). 18 19

276  Constitutions and religion phases. Another organizational feature very common to fundamentalist parties is the presence of a charismatic leader with a crucial role both in the mobilization of followers and in the definition of the party’s strategy. The loss of this leader often results in schisms and processes of traumatic transition for these parties.26 The influence of fundamentalist parties on democracy is usually not positive, since they tend to polarize the political climate in democratic polities, and to make more difficult the transition toward a pluralistic democracy in non-democratic ones. 2.2 Conservative This party type includes political parties which fully accept democratic values and pluralism, while defending some core religious values. Such parties may be denominational mass parties which have evolved to exhibit at least some features of catch-all parties,27 such as European and South American Christian democratic parties, Tunisia’s Ennahda28 and (at least in the 2000s) Turkey’s Justice and Development Party;29 but also conservative parties with a strong religious outlook, such as the U.S. Republican Party.30 In this latter case, the parties may exhibit their religious orientation in some phases of their history only: for example, Italy’s Popolo delle Libertà exhibited a strong religious orientation in the second half of the 2000s (e.g. opposing the creation of mosques and supporting the display of crucifixes in public schools), having been created as a mainstream secular centre-right party.31 Because of their catch-all organizational model, these parties usually relate to many different social groups and lobbies, and often enjoy a privileged relation with mainstream religious institutions and related organizations (e.g. see the relation between Western Europe’s Christian democratic parties, the Catholic Church and Catholic associationism and trade unionism).32 However, although they also enjoy the support of the latter in electoral campaigns, they usually choose to develop an autonomous network of political activists; and in many cases they also have a very large membership.33 They are open to alliances with a wide spectrum of other parties – more often in the mainstream centre and centre-right fields, but sometimes also in the centre-left, usually with a rejection only of openly anti-religious parties. They are often very positive toward international cooperation – as reflected, for example, in the role played by Christian democracy in the creation and development of the European integration process.34 As mentioned, their political platforms are based on some core religious values, the defense of their role in society and the support of mainstream religious institutions. However, unlike 26 Gabriel A. Almond et al., Strong Religion: The Rise of Fundamentalisms around the World (2003); Ehud Sprinzak, The Ascendance of Israel’s Radical Right (1991). 27 Kirchheimer, supra note 13. 28 Rikke Hostrup Haugbølle and Francesco Cavatorta, Beyond Ghannouchi. Islamism and Social Change in Tunisia, Middle East Rep. (2012). 29 Ozzano, supra note 21; Yavuz, supra note 6. 30 Duane Murray Oldfield, The Right and the Righteous: The Christian Right Confronts the Republican Party (1996). 31 Joseph La Palombara, Interest Groups in Italian Politics (1964); Luca Ozzano and Alberta Giorgi, European Culture Wars and the Italian Case: Which Side Are you on? (2016). 32 Marco Marzano, Il cattolico e il suo doppio. Organizzazioni religiose e Democrazia Cristiana nell’Italia del dopoguerra (1997); Kalyvas, supra note 7. 33 Kalyvas, supra note 7; Yavuz, supra note 6. 34 Wolfram Kaiser, Christian Democracy and the Origins of European Union (2007).

Religion and political parties  277 fundamentalist parties, religion is neither their only, nor – at least in ordinary circumstances – their main concern. Moreover, they do not aim to make religion the only basis for state institutions and they tend to be ideologically flexible, unless they perceive some threat to the core religious values they support. This pragmatism is also coherent with their strategy of vote maximization within pluralistic and often secular societies. In the economic field, they tend to develop broad agendas which often have a neo-liberal orientation, and enjoy good relations with international finance and capitalism – although their platforms often also include appeals to, and some kind of welfare program in favor of, the poor and the downtrodden.35 Because of both their catch-all attitude and the cross-cutting appeal of their religious messages, the internal composition of conservative parties is usually very mixed. This often implies very lively factional dynamics,36 with members ranging from centrist to left-wing, conservative and right-wing orientations. As a result, some scholars have defined Christian democratic parties, for example, as a microcosm of society.37 This can also imply changes in their political outlook, as a consequence of shifts both in the internal balance of power and in religious/non-religious orientation: for example, Turkey’s Motherland party exhibited a significant religious orientation in the 1980s, but became a secular center-right party after the death of its founder, Turgut Özal, in the 1990s.38 Their constituency is also quite mixed, but usually includes wide segments of the middle class, as well as entrepreneurs and professionals. Conservative parties are stronger in small towns and rural areas, although they also enjoy a significant level of support in bigger cities. In poorer countries, they have strong appeal for those traumatized by the process of globalization – especially in comparison to secular parties, which are perceived as inefficient and corrupt, as the case of Morocco’s Justice and Development Party highlights.39 Conservative parties can play a very positive role in a country’s democratization and in improving the quality of democracy by socializing to democratic procedures and values masses that were previously excluded or even supportive of non-democratic regimes, as in the case of Christian democratic parties in post-Second World War Europe. On the other hand, their tendency to occupy the center40 and to enjoy the support of sectors of the population whose commitment to democracy sometimes falters, can result in periods of political and social stagnation – or even, as has recently happened in Turkey, in a regression toward authoritarianism.41

35 Kees van Kersbergen, Social Capitalism: A Study of Christian Democracy and the Welfare State (2003); Yavuz, supra note 6. 36 Frank P. Belloni and Dennis C. Beller, Faction Politics: Political Parties and Factionalism in Comparative Perspective (1978). 37 Margot Lyon, Christian-Democratic Parties and Politics, 2 J. Contemp. Hist. 69–87 (1967). 38 Political Leaders and Democracy in Turkey (Metin Heper and Sabri Sayari eds., 2002). 39 Emanuela Dalmasso and Francesco Cavatorta, Democracy, Civil Liberties and the Role of Religion after the Arab Awakening: Constitutional Reforms in Tunisia and Morocco, 18 Mediterr. Polit. 225–41 (2013). 40 Sartori, supra note 18. 41 Ozzano, supra note 21.

278  Constitutions and religion 2.3 Progressive Progressive parties tend to be less common than the other types, as a consequence of the fact that religious people in most contexts are usually conservative or centrist politically, rather than left-wing. Moreover, in both the Christian and Muslim worlds, centrist and conservative parties often share a social and pro-welfare orientation inspired by religious values,42 which makes the birth of progressive parties less likely. Where such political groups exist, they are often active as factions within mainstream centrist or center-left parties, rather than as autonomous parties. Examples include the “religious left” wings within the U.S. Democratic Party and Italy’s Partito Democratico (PD). However, a number of progressive parties may also be mentioned, such as Israel’s Meimad (a party created by a group of Israeli religious Zionists, convinced that the National Religious Party had become too right-wing);43 and in particular, Italy’s Margherita, which was rather successful in the early 2000s, before becoming part of the PD. Despite the small number of actual progressive parties, many progressive religiously oriented political movements may be found throughout the world, from those inspired by liberation theology in Latin America44 to the Buddhist socialist movements of Southeast Asia.45 All these parties and political movements share a social orientation in favor of the poor and minorities, and an interest in supporting human rights and peace within a pluralistic, pro-democratic frame. These parties tend to put little emphasis on moral issues relating to family and sexuality, arguing that these should be left to the private sphere of individuals and targeted through education (a position which often results in tensions between the “progressive” and “religious” dynamics both within progressive parties themselves, and between them and their allies). Their social and pro-rights orientation is in some cases a consequence of the influence of some strand of socialist or communist thought (as in the experiences of Christian and Buddhist socialism), but may also derive from a peculiar interpretation of the scriptures themselves – as, for example, in the case of the main progressive factions within Italy’s Democrazia Cristiana immediately after the Second World War.46 In some cases, such as Israel and Northern Ireland, their socially progressive orientation can be associated to more or less developed nationalist leanings, which can sometimes reduce their potential as dialogue promoters.47 In organizational terms, the parties within this category tend to be rather small and to exhibit the features of cadre parties; they do not develop a wide structure, and rely mainly on civil society and human rights organizations and trade unions for their grassroots activities 42 Ahmad Moussalli, The Islamic Quest for Democracy, Pluralism, and Human Rights (2003). 43 Renzo Guolo, Terra e redenzione. Il fondamentalismo nazional-religioso in Israele (1998). 44 Phillip Berryman, Liberation Theology: Essential Facts About the Revolutionary Religious Movement in Latin America and Beyond (1987); Michael Dodson, The Politics of Religion in Revolutionary Nicaragua, 483 Ann. Am. Acad. Pol. Soc. Sci. 36–49 (1986). 45 Buddhism, Power and Political Order (Ian Harris ed., 2007). 46 Rosanna M. Giammanco, The Catholic-Communist Dialogue: 1944 to Present (1989); Lorenzo Bedeschi, Cattolici e comunisti. Dal socialismo cristiano ai cristiani marxisti (1974). 47 Eoin O’Malley and Dawn Walsh, Religion and Democratization in Northern Ireland: Is Religion Actually Ethnicity in Disguise?, 20 Democratization 939–58 (2013); Sultan Tepe, The Perils of Polarization and Religious Parties: The Democratic Challenges of Political Fragmentation in Israel and Turkey, 20 Democratization 831–56 (2013).

Religion and political parties  279 and campaigning. They tend not to have a very wide basin of voters and find their supporters mainly among the educated urban middle class.48 As mentioned above, these parties are very positive toward democratic values and pluralism; and, due to their small size, are open toward alliances with a wide range of centrist and left-wing parties that do not completely reject religion. In some cases, such as Italy, they may even be the link connecting left-wing secular forces with religiously oriented centrists that reject an alliance with the center-right, in a government coalition. When they choose to merge with other forces, they usually do so either with mainstream conservative parties with a catch-all orientation or with center-left parties with a penchant for religion. In both cases, their peculiar ideology can be the source of some problems of integration, both with religious conservative people and with left-wing secular people. In rare cases in which larger numbers of people support a progressive religious agenda, as in some Latin American countries, there have also been attempts to create umbrella coalitions that gather together forces with a socially progressive ideology.49 Progressive parties are generally compatible with democracy and pluralism in terms of values, and can be very positive for the political climate by acting as bridge builders. On the other hand, progressive religiously oriented parties tend to be not very stable and to suffer for their mixed orientation, which can create strains both within them and with their allies, especially in relation to some moral issues. 2.4 Nationalist Religious nationalist parties again relate ambiguously to democracy and pluralism, because of their perception of society as strongly related to ethno-religious identity, to which religion is subordinated. Therefore, they reject the existence or the public activity of competing groups related to different identities, and can have aggressive attitudes toward them; they generally accept pluralism only insofar as the competing groups are related to their own ethno-religious identity. It is not by chance, therefore, that these parties exist mainly in deeply divided polities, such as Israel/Palestine, the Balkans and India, where they have often played a crucial role in fueling both interreligious and international conflicts. Their hostility (as in the Balkans, the India/Pakistan confrontation and the Middle East) is also oriented against neighboring countries with a different identity, especially in cases marked by controversies over contended territories (e.g. the occupied territories in the Middle East and the Kashmir region in the Indian subcontinent). The struggle can be particularly fierce when those disputed territories include holy sites, which can lead to outright violence – as in the cases of the Cave of the Patriarchs in Hebron, Jerusalem’s Temple Mount/Dome of the Rock or the Babri Masjid in Ayodhya (India). Finally, when these parties perceive state institutions as overly secular, they can

48 Etta Bick, Fragmentation and Realignment: Israel’s Nationalist Parties in the 1992 Elections, in Israel at the Polls, 1992 67–101 (Daniel J. Elazar and Shmuel Sandler, eds., 1995); Carlo Baccetti, I postdemocristiani (2007). 49 Scott P. Mainwaring, Christian Democracy in Latin America: Electoral Competition and Regime Conflicts (2003); Juan Pablo Luna et al., Religious Parties in Chile: The Christian Democratic Party and the Independent Democratic Union, 20 Democratization 917–38 (2013).

280  Constitutions and religion engage in a parallel struggle against them, to expand the role of their religious tradition in the public sphere.50 Another sub-category of religious nationalist parties may be found in countries (e.g. many Western European ones) which have not been marked by strong ethno-religious conflict in the contemporary era, but have recently experienced massive immigration waves of people of different religious traditions. In this case, right-wing xenophobic parties (e.g. the Rassemblement National in France and the Lega in Italy) may be marked by a more or less strong religious orientation; or at least may adopt religious symbols – especially controversial ones, such as the crucifix or the Muslim veil – as symbols of their own identity, or that of immigrants, in order to fuel controversies.51 These parties are usually mass ones; but at the grassroots level, they are often marked by some form of militia alongside the traditional party sections.52 In some cases, such as India’s Bharatiya Janata Party (BJP), real paramilitary forces meet daily to train and perform religious rituals; in others, such as Israel’s right-wing parties, the same function is performed more informally by the colonists’ militias; and in others still, we can find more symbolic militias, such as the “green shirts” of Italy’s Lega.53 As mentioned, these militias are usually associated with the mainstream organizational units of mass parties; the parties – as in the case of India’s BJP – can even exhibit some features of catch-all parties, at least for strategic purposes at the electoral level.54 Moreover, they often have close connections to strong social movements – as reflected in the connection between the BJP party and the Rashtriya Swayamsevak Sangh organization in India55 – which, through their grassroots pressures, can prevent the parties’ moderation attempts from succeeding. They can also have a charismatic leadership, especially when they border with the fundamentalist type, as mentioned in relation to the case of Kach in Israel.56 Their ideology, as already hinted, is strongly focused on the defense of a – real or imagined57 – community which strongly identifies with their specific ethno-religious identity and their Sprinzak, supra note 26; Christophe Jaffrelot, The Hindu Nationalist Movement Indian Politics: 1925 to the 1990s: Strategies of Identity-building, Implantation and Mobilisation (With Special Reference to Central India) (1996); Harish Sharma, Communal Angle in Indian politics (2000); Gershom Gorenberg, The End of Days: Fundamentalism and the Struggle for the Temple Mount (2001). 51 Luca Ozzano and Alberta Giorgi, The Debate on the Crucifix in Public Spaces in Twenty-First Century Italy, 18 Mediterr. Polit. 259–75 (2013); Ozzano and Giorgi, supra note 31. 52 Maurice Duverger, Political Parties: Their Organization and Activity in the Modern State (1966). 53 Jaffrelot, supra note 50; Marzia Casolari, Hindutva’s Foreign Tie-up in the 1930s, Econ. Polit. Wkly. (2000), www​.epw​.in/​journal/​2000/​04/​special​-articles/​hindutvas​-foreign​-tie​-1930s​.html (last accessed January 4, 2018); Sprinzak, supra note 26; Guolo, supra note 43; Renzo Guolo, Camicie verdi, quasi brune, MicroMega 149–58 (2000). 54 Christophe Jaffrelot, Refining the Moderation Thesis. Two Religious Parties and Indian Democracy: The Jana Sangh and the BJP Between Hindutva Radicalism and Coalition Politics, 20 Democratization 876–94 (2013). 55 Walter K. Andersen and Shridhar D. Damle, The Brotherhood in Saffron: The Rashtriya Swayamsevak Sangh and Hindu revivalism (1987). 56 Ehud Sprinzak, Kach and Kahane: The Emergence of Jewish Quasi-Fascism, in The Elections in Israel - 1984 169–87 (Asher Arian and Michal Shamir eds., 1986). 57 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (2006). 50

and

Religion and political parties  281 historical tradition, and rejects other identities (often, also because of the moral implications of many religious traditions – not only in relation to religious and ethnic minorities, but also LGBT ones).58 They are strongly focused on the territory and on the need to control disputed sacred places, sometimes with a real sacralization of the motherland. As mentioned, they can have aggressive stances toward foreign policy, but they can also be quite flexible at the economic level, often supporting free trade agendas. However, they also try to strike a balance, including in their discourses social justice – especially because the bulk of their supporters are deprived lower and middle-class people, as well as other sectors of society which feel threatened by rival communities and immigrants, including at the economic level.59 These parties may engage in alliances with other political forces, insofar as the latter represent their own ethno-religious community (e.g. the Likud in Israel). However, for strategic reasons, in majority electoral systems they may even forge alliances with parties representing other communities: for example, the BJP-led coalitions in India have sometimes included small non-militant Muslim parties.60 However, when they do choose to form an umbrella party with other forces, these are usually fragile and short lived – as borne out by both the Israeli and the Indian cases – because of the strong conflict potential of the nationalist forces. This is also why their political activity can increase the overall conflict rate in the national political debate, with strong destabilizing potential.61 Therefore, their impact on the quality of democracy is seldom positive. 2.5 Camp The concept of a “camp party” derives from Asher Cohen’s work on the ultra-orthodox Jewish parties in Israel. These groups, although strongly inspired by a strict interpretation of the Torah, were traditionally anti-Zionist and sometimes even refused, for religious reasons, to recognize the legitimacy of the state of Israel. However, they ultimately decided to create their own parties, mainly with the aim of defending the role of Judaism in the new state and defending the privileges – such as the exemption from military service for students of religion – granted to the ultra-orthodox religious communities.62 Moreover, at a later stage, the Agudat party – which originally represented most of the ultra-orthodox community – split along ethnic lines, with the creation of Sephardi and Ashkenazi parties, respectively including people of Eastern European and Middle Eastern origin. Therefore, the new parties came to represent specific ethno-religious communities, with many common features with ethnic parties: in particular, they are grounded on “descent-based attributes;”63 and, “unlike other types of political

58 Luca Ozzano, Two Forms of Catholicism in Twenty-First-Century Italian Public Debate: An Analysis of Positions on Same-Sex Marriage and Muslim Dress Codes, 21 J. Mod. Ital. Stud. 464–84 (2016). 59 Jaffrelot, supra note 50; Sprinzak, supra note 26; Ozzano and Giorgi, supra note 31. 60 Thomas Blom Hansen and Christophe Jaffrelot, The BJP and the Compulsions of Politics in India (1998). 61 Tepe, supra note 47. 62 Alain Greilsammer, Israel, les hommes en noir: Essai sur les partis ultra-orthodoxes (1991); Charles S. Liebman, Religion and Democracy in Israel, in Israeli Judaism 347–66 (Shlomo Deshen ed., 1995). 63 Kanchan Chandra, What is an Ethnic Party?, 17 Party Polit. 151–69, 154 (2011).

282  Constitutions and religion parties, electoral mobilization is not intended to attract additional voters outside the group.”64 As a consequence, their membership is also cross-cutting, including people from different sectors of society who belong to the same ethno-religious community. What makes them different from nationalist parties are, on the one hand, this reference to an actual social group, rather than a (real or constructed) ideal national community; and on the other, their negotiation of the interests of their social group within a pluralistic environment, rather than adopting a conflict stance toward other communities and secular people. This feature also influences these parties’ organizational structure: they are usually quite light, while most of the grassroots work is done informally by members of their social group. In ideological terms, they tend to be quite flexible and open to a wide range of political alliances, as long as some basic religious values and prerogatives are not put into question. For example, the Shas party in Israel became part of the center-left Rabin cabinet in the 1990s.65 They also often perform welfare activities in favor of their social group’s disadvantaged people. Although, as mentioned above, most of the literature about this party type relates to the Israeli case, camp parties may be found in several other contexts: for example, in India, where there are regional Sikh and Muslim parties such as the Shiromani Akali Dal and the Jammu and Kashmir National Conference (which, as proof of the flexibility of this type of party, have both been part of government coalitions led by the Hindu religious nationalist BJP);66 in Lebanon, where – at least in political phases not marked by widespread conflict – Hezbollah has exhibited features of a camp party;67 in Sri Lanka’s Tamil parties; and in some Catholic and Protestant parties in Ireland and Northern Ireland.68 Very often, however, these parties are not stable, but oscillate toward other types of parties – as shown particularly by Hezbollah, which in some phases has been closer to the nationalist or fundamentalist models. In other cases – such as the Israeli ultra-orthodox parties and the Tamil parties in Sri Lanka – they tend to evolve toward the nationalist type by developing an attitude of conflict rather than negotiation vis-à-vis other communities.69 Because of the flexible and pragmatic attitude of these parties, their influence on democracy cannot be unequivocally defined. In the view of some scholars, their focus on a single community can result in a lack of political and democratic socialization, and in insufficient integration with wider society; however, other researchers highlight that they can positively participate in democratic institutions “if they are institutionally encouraged to compete on multiple dimensions.”70

64 John Ishiyama and Marijke Breuning, What’s in a Name? Ethnic Party Identity and Democratic Development in Post-Communist Politics, 17 Party Polit. 223–41, 225 (2011). 65 Etta Bick, The Shas Phenomenon and Religious Parties in the 1999 Elections, in Israel at the Polls, 1999 55–100 (Daniel J. Elazar and‎ M. Ben Mollov, eds. 2001). 66 Luca Ozzano, Fondamentalismo e democrazia. La destra religiosa alla conquista della sfera pubblica in India, Israele e Turchia (2009); Michelguglielmo Torri, Storia dell’India (2000). 67 Rosita Di Peri, Il Libano contemporaneo. Storia, politica, società (2009). 68 O’Malley and Walsh, supra note 47. 69 Liebman, supra note 62; Guolo, supra note 43. 70 Ishiyama and Breuning, supra note 64, at 228.

Religion and political parties  283

3.

CONCLUDING REMARKS

This review of the different types of religiously oriented parties makes it possible to highlight some broader theoretical points about the influence of religion on party politics, and to set some priorities for future research. First, the fact that religion can influence political parties in different ways – sometimes with a pro-democratic, pro-human rights and peaceful agenda; other times with an authoritarian, intolerant and conflict-oriented agenda – seems to support the idea of the multi-vocality of religious traditions: a theoretical thesis which claims that the attitude of a religious tradition toward democracy cannot be determined a priori, but is rather the consequence of historical processes, interpretive traditions and social and cultural factors. Therefore, it can change both in different contexts and over time in the same context.71 This point is strengthened by the presence of parties inspired by different religious traditions within the same types, which seems to contradict essentialist perspectives,72 claiming that each religious tradition – as a consequence of a specific set of core values – has a specific attitude toward democracy that does not change over time and in different social contexts. The real point, in terms of social science research, therefore seems to be how to understand the role played by interpretive traditions, charismatic leaders and ideologues in orienting the influence of religion toward democracy and tolerance, rather than toward authoritarianism and conflict.73 This moves the focus of the discussion on religiously oriented parties from the field of religious studies to that of social sciences. Second, a point which must be taken into account in future research is understanding not simply when and how religion can influence political parties, but also to what extent. It is also important to understand if we can define a threshold beyond which we can say that a party is religiously oriented. This is no easy task – especially considering that religion’s influence on parties is exerted in different ways and through different dimensions: for example, in terms of values orientation, relations with religious institutions and the influence of organized religious movements.74 Therefore, any measurement of religion’s influence on political parties must necessarily be multidimensional, taking into account all different channels of influence of religion on political parties through different variables and indicators. Finally, an effective analysis of the role of religion in party politics is also connected to an effective analysis of the evolution of party politics throughout the democratic world. This is not a trivial point, given that – after some decades of stasis – the landscape of many political systems has significantly changed, with the crisis of “traditional” parties based on established cleavages (state vs. church; center vs. periphery; city vs. country; and capital vs. labor),75 and the rise of new parties, which according to some interpretations might be based on new cleavages, such as materialist vs. postmaterialist, and globalist vs. communitarian.76 This implies Alfred C. Stepan, Religion, Democracy, and the ‘Twin Tolerations’, 11 J. Democr. 37–57 (2000). Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (1996); Steve Bruce, Did Protestantism Create Democracy?, 11 Democratization 3–20 (2004). 73 Daniel Philpott, Explaining the Political Ambivalence of Religion, 101 Am. Polit. Sci. Rev. 505–25 (2007); Ozzano, supra note 21. 74 Haynes, supra note 2. 75 Seymour Martin Lipset and Stein Rokkan, Party Systems and Voter Alignments: Cross-National Perspectives (1967). 76 Hanspeter Kriesi, Restructuration of Partisan Politics and the Emergence of a New Cleavage Based on Values, 33 West Eur. Polit. 673–685 (2010); Simon Bornschier, The New Cultural Divide 71 72

284  Constitutions and religion Table 16.1

Typology of religiously oriented parties Fundamentalist

Ideology

Conservative

‘Total integration’ ideology Based on religious based on a particular

values but

interpretation of a religious encompassing

Progressive

Nationalist

Socially oriented, Religious

Flexible,

sometimes

nationalist, based

pragmatic attitude

with a Marxist

on the idea of

with some core religious values

message

non-religious issues orientation

supremacy of the group

Conflict

and concerns Accepting

Accepting

Organizational

Mass, charismatic, based

Catch-all

Cadre with limited Mass, based on

model

on wide membership and/

Attitude toward

Camp

Conflict

Separation

pluralism membership

Organization

militias mixed with largely supplied other organizational by the social

or religious networks

units

group and its

Relation with

Relation of integration

Pragmatic

institutions Strong cooperation Often dominated by Integration with

interest groups

with some religious

involvement with

with trade unions

religious nationalist non-associational

(IGs)

organizations/groups

different kinds of

and other civil

social movements

IGs

IGs (but strong

society IGs

quasi-familial relation with some) Social base

Goals

People living in rural areas Cut across class,

Educated urban

People living in

Cut across class,

and urban shantytowns

middle class

areas with a high

within a single

rural, traditional,

level of conflict;

ethno-religious

older and less

bourgeoisie feeling group

educated people

threatened by other

but stronger among

Total transformation of the Maximization of

Promotion of

communities Opposition

Defence of core

political and legal systems electoral support

issues related to

to competing

interests of an

social justice and

ethno-religious

(ethno)-religious

groups

group within

according to a religious

while preserving

ideology

some core religious civil rights values

a pluralistic environment

Source: Luca Ozzano, The Many Faces of the Political God: A Typology of Religiously Oriented Parties, 20 Democratization 807–830 (2013).

the need to rethink the role of religion in political parties in the context of a reevaluation of the field of contemporary party politics as a whole.

and the Two-Dimensional Political Space in Western Europe, 33 West Eur. Polit. 419–444 (2010); Ozzano and Giorgi, supra note 31.

PART IV RELIGION AND SUPRANATIONAL CONSTITUTIONALISM

17. Individual religious freedom under the European Convention of Human Rights András Sajó and Renáta Uitz

1. INTRODUCTION Article 9 protects a wide range of manifestations of freedom of religion or belief; yet over the years, the European Court of Human Rights (ECtHR) has been more often concerned with the collective aspects of the right than with individual manifestations (especially the protection of conduct dictated by religion). In some cases, the position of the religious organization was preferred against that of the believer; in others, attention was pegged on religious identity claims. We argue that this is partly due to the methodology of the ECtHR; but it also reflects certain public (and governmental) attitudes concerning the free exercise of religion. The text of Article 9 of the European Convention of Human Rights and Freedoms (ECHR) dedicated to freedom of religion was not merely formulated to protect religious liberty against encroachments by national governments. It was also carefully calibrated to accommodate the prevailing historic idiosyncrasies of church-state relations in the member states. It is telling that at the time of drafting, Sweden was seeking to preserve its established church; while Turkey – in a Kemalist tradition – sought to keep its constitution free from religious influences.1 This tacit compromise to protect the status quo2 across the Council of Europe has complicated the clarification of generally applicable European minimum standards to religious liberty as an individual right under Article 9 to this day. Respect for national differences is expressed through judicial deference, as a grant of a broad margin of appreciation in the name of subsidiarity.3 The trouble is that respect for historic church-state relations (status quo) is not necessarily concerned with individual freedom of religion. While the collective dimension of religious exercise is vital for freedom of religion, the following analysis focuses on core issues of individual religious liberty claims. We enter into details on rights in education or employment to the extent they are relevant for the protection of individual religious liberty. This chapter argues that freedom of religion is an individual liberty to be protected in its own right. This is a crucial point, as it may not comfortably fit the changing paradigm in the contemporary Western world, which struggles with religious diversity. The protection of religious freedom historically had to do with inter-group peace. Gradually – at least at the 1 Carolyn Evans, Freedom of Religion under the European Convention of Human Rights 39–49, esp. 42–44 (2001) on the Turkish and Swedish proposals. 2 For example, Javier Martínez Torrón and Rafael Navarro-Valls, The Protection of Religious Freedom in the System of the Council of Europe, in Freedom of Religion or Belief. A Deskbook 209, 216–17 (Tore Lindholm, W. Cole Durham, Jr. and Bahia G. Tahzib-Lie eds., 2004). 3 From this perspective, see Kristin Henrard, How the European Court of Human Rights’ Concern Regarding European Consensus Tempers the Effective Protection of Freedom of Religion, 4 Oxford J. L. & Relig. 398 (2015).

286

Individual religious freedom under the ECHR  287 level of justification – with the individualization of law it moved toward the recognition of individual religious claims. The post-Second World War paradigm, as reflected in the text of the Universal Declaration of Human Rights and the ECHR, was that of an individual right with a belated recognition that religious liberty still first and foremost consists in the prohibition from coercion (as also evidenced in Article 18(2) of the International Covenant on Civil and Political Rights (ICCPR)). More recently, in diverse societies the emphasis has shifted to protection from exclusion on account of one’s religion – more precisely, religious identity.4 The focus on individual religious liberty claims is warranted by the conceptual and practical difficulties such claims pose for the application of Article 9. For instance, even where it is admitted that the claim follows from an applicant’s own religious beliefs and is not required by an authoritative religious text or religious doctrine, the ECtHR will accept it as a matter of religious belief, so long as it is held sincerely.5 This approach may appear to be friendly to religious liberty, yet it runs the risk of making “every citizen to become a law unto himself.”6 It is a major judicial dilemma and temptation to accept as religion only such tenets as are followed by a certain number of people on the basis of some collectively recognized authoritative source. But most courts, including the ECtHR, resist this temptation – not so much out of respect for individual conscience or for the protection of religious minorities (dissenters), but for sheer lack of capacity to take sides in theological matters. Section 2 offers an overview of developments in the case law of the ECtHR, while Section 3 traces the development of key concepts as posited in and used after Kokkinakis. Section 4 shows that while the ECtHR continues to have a rather generous take on permissible limitations of religious liberty, it tends to interpret these limitations broadly, and also tends to be less demanding in the proportionality analysis than with other ECHR rights. The lessons from non-discrimination jurisprudence are also bittersweet (Section 4.3). In addition, in recent years the ECtHR became aware of the tyranny of local majorities and started to develop a sui generis duty of state neutrality under Article 9 (Section 5).

2.

SETTING THE SCENE: MAJOR DEVELOPMENTS AND DILEMMAS

The ECtHR issued its first judgment under Article 9 as late as in 1993, in Kokkinakis v. Greece.7 The ECtHR premised the protection of religious liberty on the understanding that it is “one of the most vital elements that go to make up the identity of believers and their conception of life,”8 and made the management of religious pluralism into a guiding principle of the application of Article 9.9 While this approach sounds intuitively appealing at first, it turned out to be bad news for applicants challenging the prevailing status quo in defense of individual religious liberty. 4 For this point in the Canadian context, see Richard Moon, Liberty, Neutrality and Inclusion. Religious Freedom under the Canadian Charter of Rights and Freedoms, 41 Brandeis L. J. 563 (2003). 5 See further at Section 4.1, below. 6 Justice Scalia, in a different sense, Employment Division v. Smith, 494 U.S. 872, 879 (1990). 7 Kokkinakis v. Greece, App. no. 14307/88, Eur. Ct. Hum. Rts., Judgment of May 25, 1993. 8 Kokkinakis, supra note 7, para. 31. 9 See generally in Françoise Tulkens, The European Convention on Human Rights and Church-State Relations. Pluralism vs. Pluralism, 30 Cardozo L. Rev. 2579 (2009).

288  Constitutions and religion Of course, free exercise of religion is not only a matter of individual right; it also depends on the regulatory power of the state. This regulatory role is particularly important when it comes to inter-denominational relations and public peace. Although diversity within a country can be the source of heightened concern for individual religious liberty, this understanding was not obvious for a long time. In the late 1990s, applicants from the new post-communist member states successfully challenged government interference with the operation (leadership selection) of religious communities,10 and their access to legal entity status (church registration and re-registration cases).11 More recently, individual conscience received strong acknowledgment in the context of conscientious objection to military service.12 Despite these advances, in most other respects the case law on individual religious liberty is characterized by the generous margin of appreciation granted to the member states due to differences in church-state relations that pre-date the ECHR.13 This broad margin of appreciation results in oft-noted inconsistencies in the case law.14 This disregard partly reflects the “official” perception of the proper exercise of individual religious freedom in some member states. It is also related to the self-understanding of many judges – namely, that in the spirit of protecting common European minimum standards the ECtHR should not give direction to member states regarding religious organizations and communities, and on how these entities shall relate to individual religious belief and resulting conduct. Of course, such a self-understanding may have detrimental consequences to individual religious liberty. In 2001 Carolyn Evans was hopeful that the protection of individual autonomy may serve as an overarching principle of European jurisprudence on religious freedom.15 Today, the ECtHR is considered in the scholarly literature to protect the rights of religious communities16 and much less of individual believers (including in their relations vis-à-vis their religious organizations).17 In the literature the standard illustration of this alleged gap is that the ECtHR

10 Serif v. Greece, App. no. 38178/97, Eur. Ct. Hum. Rts., Judgment of December 14, 1999; Hasan and Chaush v. Bulgaria, App. no. 30985/96, Eur. Ct. Hum. Rts., Judgment of October 26, 2000; Manoussakis v. Greece, App. no. 18748/91, Eur. Ct. Hum. Rts., Judgment of September 26, 1996. 11 Moscow Branch of the Salvation Army v. Russia, App. no. 72881/01, Eur. Ct. Hum. Rts., Judgment of October 5, 2006 provided clear standards for the protection of the legal status of religious communities, bringing the protection of freedom of association under Article 11 to the rescue of religious liberty claims. 12 Bayatyan v. Armenia, App. no. 23459/03, Eur. Ct. Hum. Rts. [GC], Judgment of July 7, 2011. It is not for the legal analysis to determine to what extent this change of position is related to an increased practical respect of conscience-dictated choices, and to what extent it reflects the changing European public perception of, and actual need for, compulsory military service. 13 See, for example, Magyar Keresztény Mennonita Egyház and others v. Hungary, App. nos. 70945/11, 23611/12, 26998/12,41150/12, 41155/12, 41463/12, 41553/12, 54977/12 and 56581/12, Eur. Ct. Hum. Rts., Judgment of April 8, 2014, para. 100, citing Darby v. Sweden, App. no. 11581/85, Eur. Ct. Hum. Rts., Judgment of October 23, 1990; also: Fernandez Martínez, App. no. 56030/07, Eur. Ct. Hum. Rts. [GC], Judgment of June 12, 2014, para. 130; Sindicatul “Păstorul cel Bun” v. Romania, App. no. 2330/09, Eur. Ct. Hum. Rts. [GC], Judgment of July 9, 2013, para. 138. 14 Recently, for example, Henrard, supra note 3. 15 Evans, supra note 1, at 32–33. 16 Carolyn Evans, Individual and Group Religious Freedom in the European Court of Human Rights, Cracks in the Intellectual Architecture, 26 J. L. & Relig. 321 (2010–2011). 17 Note that under Article 9, the right of an individual to dissent within a religious community is limited to exiting the community at one’s free will. See, for example, Fernandez Martínez, supra note 13, para. 128; Sindicatul “Pastorul cel Bun”, supra note 13, para. 137. The ECtHR has consistently

Individual religious freedom under the ECHR  289 developed clear-cut standards on the recognition of the legal entity status for religious communities, while it consistently found against Muslim women challenging state-imposed headscarf bans.18 Some scholars detected a strong pro-Christian bias coupled with an anti-Islam sentiment19 – a divide that was exacerbated after the Grand Chamber’s judgment in the Italian classroom crucifix case.20 At the same time, when in the headscarf cases the ECtHR sided with self-proclaimed secular states, some commentators became wary that the ECtHR was on a secularizing mission across Europe.21 These debates test the boundaries of Article 9: applicants invoke it not simply to protect their religious liberty, but to make a larger point about defending their religious identity against encroachments by member states and by fellow human beings. Furthermore, the inconsistencies attributed to the Article 9 case law made religious applicants choose alternative avenues under the ECHR: custody disputes resulting from differing religious preferences or parental religious rights are brought as issues of family life (under Article 8 in conjunction with Article 9);22 freedom of conscience in employment disputes against faith-based employers is litigated as questions of private life (under Article 8)23 or freedom of expression (Article 10).24 Of course, such reclassification is inevitable in the logic of the ECHR: the most brutal instances of religious persecution against small religious groups or individuals which result in ill-treatment on grounds of religious belonging are upheld the collective rights of breakaway factions to legal entity status and organizational autonomy (schism). See, for example, Metropolitan Church of Bessarabia and Others v. Moldova, App. no. 45701/99, Eur. Ct. Hum. Rts., Judgment of December 13, 2001; Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and others v. Bulgaria, App. nos. 412/03, 35677/04, Eur. Ct. Hum. Rts., Judgment of January 22, 2009. 18 Most prominently, Karaduman v. Turkey, App. no. 16278/90, Eur. Ct. Hum. Rts., Decision of May 3, 1993. Leyla Sahin v. Turkey, App. no. 44774/98, Eur. Ct. Hum. Rts. [GC], Judgment of November 11, 2005; S.A.S. v. France, App. no. 43835/11, Eur. Ct. Hum. Rts. [GC], Judgment of July 1, 2014. 19 Susanna Mancini and Michel Rosenfeld, Unveiling the Limits of Tolerance. Comparing the Treatment of Majority and Minority Religious Symbols in the Public Square, in Law, State and Religion in the New Europe. Debate and Dilemmas 160 (Lorenzo Zucca and Camil Ungureanu eds., 2012). 20 Lautsi v. Italy, Application no. 30814/06, Eur. Ct. Hum. Rts. [GC], Judgment of March 18, 2011. 21 Malcolm Evans and Peter Petkoff, A Separation of Convenience? The Concept of Neutrality in the Jurisprudence of the European Court of Human Rights, 36 Religion, State & Society 205 (2008); also Malcolm Evans, Freedom of Religion and the European Convention on Human Rights. Approaches, Trends and Tensions, in Law and Religion in Theoretical and Historical Context 291 (Peter Cane, Carolyn Evans and Zoë Robinson eds., 2011); Javier Martínez Torrón, Freedom of Religion in the European Convention on Human Rights under the Influence of Different European Traditions, in Universal Rights in a World of Diversity, The Case of Religious Freedom, The Pontifical Academy of Social Sciences Acta 17 329, 336 et seq. (Mary Ann Glendon and Hans F. Zacher eds., 2012) (warning about the emergence of an “exclusive” notion of state neutrality on account of pluralism). 22 Hoffmann v. Austria, App. no. 12875/87, Eur. Ct. Hum. Rts. [GC], Judgment of June 23, 1993; Vojnity v Hungary, App. no. 29617/07, Eur. Ct. Hum. Rts. [GC], Judgment of February 12, 2013. See also Renáta Uitz, Rethinking Deschomets v. France. Reinforcing the Protection of Religious Liberty through Individual Autonomy, in Diversity and European Human Rights: Rewriting Judgments of the ECHR 173 (Eva Brems ed., 2012). 23 Obst v. Germany, App. no. 425/03, Eur. Ct. Hum. Rts., Judgment of September 23, 2010; Schüth v. Germany, App. no. 1620/03, Eur. Ct. Hum. Rts., Judgment of September 23, 2010; Siebenhaar v. Germany, App. no. 18136/02, Eur. Ct. Hum. Rts., Judgment of February 2, 2011; Fernandez Martínez, supra note 13. 24 Lombardi Vallauri v. Italy, App. no. 39128/05, Eur. Ct. Hum. Rts., Judgment of October 20, 2009.

290  Constitutions and religion brought under Article 3;25 and the same logic applies in extradition cases where extradition risks religious persecution.26 This doctrinally perhaps inevitable fragmentation runs the risk of different standards and, together with the still-prevailing wide margin of appreciation, leaves tensions in the case law. Furthermore, litigating a religious liberty claim under other ECHR articles runs the risk that the applicant will succeed for reasons other than the violation of his or her religious liberty – that is, the very reasons he or she turned to the courts to begin with. In consequence, individual freedom of religion is diluted. To the dismay of scholars, in the maze of claims and varying approaches to them, the ECtHR has never provided specific reasons on why the ECHR protects religious liberty in the first place.27 The reason why freedom of religion is protected under the ECHR is a simple matter of positive law: it was recognized for centuries and, in particular, was included as such in the ECHR in Article 9. Freedom of religion is a standalone right and not a matter of protecting the self-development and autonomy as an aspect of the right to private life (Article 8) – a right that is subject, among others, to limitation in the name of economic interests. To justify religious liberty as being central for individual identity does not render justice to freedom of religion as a human right and disregards the religious aspect of the right. The emphasis on individual religious identity is misleading from the perspective of many religions, which do not consider religious belief a matter of “who one is,” but rather a matter of metaphysical or transcendental relations and, often, not even a matter of personal choice (but one of calling). After all, the ECtHR has also accepted from the start that “religious freedom is primarily a matter of individual conscience”28 (emphasis added). In practice, this becomes a problem for the ECtHR in borderline cases or at a crossroads, such as on account of the rights of asylum seekers. For instance, in F.G. v. Sweden the Grand Chamber found under Articles 2 and 3 that in their risk assessment, the national authorities would need to account for the consequences of the Iranian applicant’s conversion to Christianity before ordering his expulsion.29 In its reasoning the ECtHR perceived the risk of persecution on account of the applicant’s conversion not as a potential violation of religious liberty, but as a harm that the applicant might suffer on account of his membership in a group that is systematically exposed to ill treatment.30 The applicant’s individual religious liberty was not an issue and there is no guarantee that a person cannot be deported even if it would put his or her free exercise rights at clear risk.31

25 Prominently: Gldani Congregation, Milanovic v. Serbia, App. no. 44614/07, Eur. Ct. Hum. Rts., Judgment of December 14, 2010, also Tsartsidze and others v. Georgia, App. no. 18766/04, Eur. Ct. Hum. Rts., Judgment of January 17, 2017. 26 M.E. v. France, App. no. 50094/10, Eur. Ct. Hum. Rts., Judgment of June 6, 2013. F.G. v. Sweden, App. no. 43611/11, Eur. Ct. Hum. Rts. [GC], Judgment of March 23, 2016. 27 More broadly see Merilin Kiviorg, Collective Religious Autonomy versus Individual Rights. A Challenge for the ECtHR?, 39 Rev. Centr. & East Eur. L. 315, 320 (2014). 28 Kokkinakis, supra note 7, para. 31. However, this recognition appears in an odd context, as if it were somehow juxtaposed to manifestation. 29 F.G., supra note 26. Initially the applicant did not wish his conversion to be taken into account. 30 F.G., supra note 26, para. 127. 31 F.G., supra note 26, separate opinion of Judge Sajó, noting that the extraterritorial application of Article 9 would also have merited attention in the case.

Individual religious freedom under the ECHR  291 Note that in a similar setting, the Court of Justice of the European Union (CJEU) did not hesitate to focus on the interference with asylum seekers’ individual religious liberty, as protected under Article 10 of the EU Charter.32 In particular, the CJEU pointed out that: The subjective circumstance that the observance of a certain religious practice in public, which is subject to the restrictions at issue, is of particular importance to the person concerned in order to preserve his religious identity is a relevant factor to be taken into account in determining the level of risk to which the applicant will be exposed in his country of origin on account of his religion, even if the observance of such a religious practice does not constitute a core element of faith for the religious community concerned.33

3.

FROM SHAKY FOUNDATIONS TO FRAMEWORK: KOKKINAKIS V. GREECE

To be fair, the ECtHR had already attempted to engage with the complexity of justification in Kokkinakis. In Kokkinakis, proselytism came under the protection of Article 9 (although the violation consisted in the failure of the domestic courts to provide convincing reasons for convicting the applicant and his wife).34 The judgment, however, did not call into question the conformity of the criminal ban under the ECHR; although, as Judge Martens has stated (partly dissenting): it is not within the province of the State to interfere in [a] ‘conflict’ between proselytiser and proselytised [...] [R]espect for human dignity and human freedom implies that the State is bound to accept that in principle everybody is capable of determining his fate in the way that he deems best.35

The fact that religious belief and its manifestation are personal choices that deserve respect by the state is generally missing: the matter is not understood as one of religious freedom. The ECtHR famously found that the criminalization of improper proselytism was compatible with Article 9(2).36 Yet it did not consider coercion as the ground of impropriety.37 Instead, it defined impropriety with reference to “a report drawn up in 1956 under the auspices of the World Council of Churches” to distinguish between “true evangelism” on the one hand and “a corruption or deformation of it” on the other.38 The intellectual premises and biases of this approach aptly reflect the difficulties the ECtHR was facing in the case. It is telling that, instead of a neutral, secular or diversity-inclusive point of reference developed on the basis of law and the ECHR specifically, in the foundational judgment the ECtHR preferred to rely on 32 Joined Cases C‑71/11 and C‑99/11, Bundesrepublik Deutschland v. Y & Z, Court of Justice of the European Union, September 5, 2012. 33 Joined Cases C‑71/11 and C‑99/11, Y & Z, supra note 32, para. 70. 34 Kokkinakis, supra note 7, para. 49. 35 Kokkinakis, supra note 7, partly dissenting opinion of Judge Martens, para. 15. 36 Kokkinakis, supra note 7, para. 48. 37 Kokkinakis, supra note 7, partly dissenting opinion of Judge Martens, para. 17: “Coercion in the present context [...] is coercion in order to make somebody join a denomination and its counterpart, coercion to prevent somebody from leaving a denomination [...] The strict neutrality which the State is bound to observe in religious matters excludes interference in this conflict by means of criminal law.” 38 Kokkinakis, supra note 7, para. 48. Jehovah’s Witnesses are not members of the World Council of Churches.

292  Constitutions and religion an interdenominational religious perspective, strictly related to a religious status quo reflecting a strong preference to dominant churches. Whatever the practical consequences and national realities were, to resolve the conflict between conflicting religious claims the ECtHR followed instincts from the free speech and freedom of association context, and made pluralism in a democratic society into the cornerstone of its Article 9 jurisprudence. At least this is what happened at the level of ideological framing. Accordingly: “freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention [...] The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”39 Following this declaration of faith it was argued that the ECtHR undertook as its mission to preserve religious pluralism as a yardstick of European democracy.40 Even if it is unlikely that the ECtHR has a “mission,” in a number of judgments freedom of religion was protected as a matter of pluralism and equality.41 In the ECtHR’s understanding, pluralism management imposes obligations on the member states, on individuals and on the ECtHR, to varying degrees. As far as member states are concerned, the ECtHR explained already in Kokkinakis that: [Article 9] recognises that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.

Subsequently, the ECtHR repeated as the premise for the application of Article 9 that “not only is political democracy a fundamental feature of the European public order but the Convention was designed to promote and maintain the ideals and values of a democratic society.”42 The framework of pluralism management also imposes burdens on individuals. As the Grand Chamber clarified in 2005 in Leyla Sahin: Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society [...] It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a “democratic society.” (emphasis added, internal references omitted)

Thus, individuals must be ready to make concessions in order to live in a politically and socially pluralistic democracy in Europe. This is not much of a shock, as under Article 9(2), religious liberty may be limited, inter alia, to protect the rights of others. In addition, when it comes to conduct of others, or regulation by the state, a certain level of “inconvenience” caused to individual religious manifestation is not considered to be an interference, or – when the ECtHR recognizes the interference – behavior inspired by religion may still have to yield

Kokkinakis, supra note 7, para. 31. See, for example, Metropolitan Church of Bessarabia, supra note 17, para. 116, drawing on Hasan and Chaush, supra note 10, para. 78. 41 Recently, for example, İzzettin Doğan and Others v. Turkey, App. no. 62649/10, Eur. Ct. Hum. Rts., Judgment of April 26, 2016; Magyar Keresztény Mennonita, supra note 13. 42 Moscow Branch of the Salvation Army, supra note 11, para. 60 (emphasis added). 39 40

Individual religious freedom under the ECHR  293 to other considerations in the balancing exercise.43 Nonetheless, to generate obligations where the issue would be individual rights protection is paradoxical, even if it is true that obligations of respect imposed on others create the necessary space for individual free exercise. Accordingly, in Kokkinakis the ECtHR found that the criminal ban on proselytism serves the legitimate aim of protecting the rights of others in line with Article 9(2) without much ado.44 This was a translation of the Greek government’s insistence that “the sole aim of section 4 was to protect the beliefs of others from activities which undermined their dignity and personality.”45 This approach suggests a very permissive construction of the concept of the “rights of others” under Article 9(2). In principle, it is unobjectionable to insist on the equal value of all religious beliefs. What kind of tolerance results from this assumption and to what extent non-confrontation with another religion is part of a doctrine of tolerance are different matters; not to speak of the enforcement of tolerance in the Greek social context in favor of the dominant religion by means of criminal law. In the logic of preserving pluralism in a European democracy under the ECHR, the ECtHR is in charge of European supervision. Given the self-understanding of the ECtHR, its ECHR-based task of “European supervision” is understood deferentially in matters of religious freedom and also for most derogable rights. The result is that a broad margin of appreciation is granted to the member states in matters of religion, a practice that continues to this day. According to critiques (but not to governments, as evidenced by the Brighton process), margin of appreciation is an elusive doctrine, and its fuzzy contours are vividly demonstrated in the religion context. Normally, the margin of appreciation is narrow when a particularly important aspect of an individual’s identity or personality is at stake. The margin of appreciation is broad, however, in questions concerning morals, or when the state must balance between competing private claims and public interests. In claims under Article 9 all these features, pointing in opposite directions, are usually present. The ECtHR is prone to side with the member states’ broad margin of appreciation and does not search for European consensus; nor does it attempt to forge an autonomous concept to recognize the importance of a specific conduct for the applicants’ identity. There is even less judicial interest in the alleged importance for the individual exercise of religion – for example, educating children in a religious tradition, a matter of teaching or dietary rules. Furthermore, although the existence of a European consensus usually narrows the margin of appreciation. When confronted by the French burqa ban in S.A.S., the Grand Chamber found that there was no European consensus on face coverings where only two of the 47 member states had such bans. This confirmed that a newly imposed limitation could also fall within the margin of appreciation, even when there is consensus not to prohibit a certain behavior.46

43 Cha’are Shalom ve Tsedek v. France, App. no. 27417/95, Eur. Ct. Hum. Rts., Judgment of June 27, 2000; Osmanoğlu and Kocabaş v. Switzerland, App. no. 29086/12, Eur. Ct. Hum. Rts., Judgment of January 10, 2017; Mouvement Raëlien Suisse v. Switzerland, App. no. 16354/06, Eur. Ct. Hum. Rts. [GC], Judgment of July 13, 2012. 44 Kokkinakis, supra note 7, para. 44. 45 Kokkinakis, supra note 7, para. 34. 46 Dominic McGoldrick, A Defence of the Margin of Appreciation and an Argument for Its Application by the Human Rights Committee, 65 I. C. L. Q. 21, 29-30 (2016). Admittedly that lack of a prohibition (a weak freedom claim) is not the same as consensus on a strong prohibition or positive authorization. (See also the relevance of lack of the prohibition of home birth. Ternovszky v. Hungary,

294  Constitutions and religion In the judgments on religious freedom, general considerations are built from the blocks of Kokkinakis, in the spirit of the duty to preserve pluralism in a democratic society and protecting religious identity.47 Preservation of pluralism has become a double-edged sword, at best: it can be used against individual free exercise, the burqa bans being the most spectacular recent example. Preservation of pluralism can go as far as banning certain religious practices, as if boxing were to be permitted with letting only one of the fighters in the ring. But it is also true that some fighters are rightly suspended for fighting dirty. Furthermore, the duty to preserve pluralism builds on an image of coexisting groups, without paying much attention to individual religious liberty claims or necessarily taking into account the relative social positions of and power dynamics between these groups. As such, the rhetoric of pluralism management is blind to claims about the abuse of a majority position, and thus to the plight of non-traditional and non-mainstream religious believers. In some instances, states provide a privileged position to one or another religious organization (perhaps on “neutral” grounds of national tradition, historical merits and so on), and this becomes accepted without any further reflection by the ECtHR.48 The framework of pluralism management in a diverse society places the protection of religious liberty in the broader frame of protecting religious identity.49 In Kokkinakis this step resulted from a perception that constitutional democracy is characterized by religious diversity. Nonetheless, in practice, it is inherently hard to comprehend the demands of pluralism where such diversity is non-existent or denied. In the Lautsi case the Italian government presented Catholicism as a culturally homogenous status quo, explaining that the display of the crucifix in elementary school classrooms was “the expression of a ‘national particularity’,” characterized notably by close relations between the state, the people and Catholicism attributable to the historical, cultural and territorial development of Italy and to a deeply rooted and long-standing attachment to the values of Catholicism.”50 In Tsedek diversity was denied by the ECtHR when it, rather unusually, took a position on what is dictated by religious belief by relying on the views of the majority religious organization against the claims of a religious minority group (that was even recognized as a separate legal entity).51 In the case the Grand Chamber took for granted that access to kosher meat was a more significant aspect of the applicants’ faith than the applicant religious community’s control over ritual slaughter and participation in it. Note that participation of the believer in sacramental acts is traditionally part of the practice of religious rites. Article 9 expressly protects religious observance, or – as helpfully framed in French – l’accomplissement des rites. This appears to be a preference for one religious teaching to the detriment of a competing one coming from a different commu-

App. no. 67545/09, Eur. Ct. Hum. Rts., Judgment of December 14, 2010; Dubská and Krejzová v. Czech Republic, App. nos. 28859/11, 28473/12, Eur. Ct. Hum. Rts., Judgment of November 15, 2016). 47 Evans, supra note 16, 340. 48 The ECtHR may, of course, decide to pay attention to the local power relations between religious communities. See, for example, Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy), supra note 17, para. 157 (under Article 9 alone), where the ECtHR pointed out with disapproval that when interfering in the leadership dispute of the Bulgarian Orthodox Church the Bulgarian state sided with the parliamentary majority through deploying questionable legal techniques. 49 Kokkinanis, supra note 7, para. 31. 50 Lautsi, supra note 20, para. 36. Also: “Keeping crucifixes in schools was therefore a matter of preserving a centuries-old tradition.” 51 Cha’are Shalom ve Tsedek, supra note 43, para. 72.

Individual religious freedom under the ECHR  295 nity. As such, this is a judicial assessment of the legitimacy of religious beliefs and teachings – a measure that the ECtHR otherwise finds incompatible with Article 9.

4.

THE PROTECTION OF INDIVIDUAL RELIGIOUS LIBERTY UNDER THE ECHR

Article 9 affords unlimited protection to holding and changing one’s beliefs. This aspect is otherwise known as the inviolable core of conscience (forum internum). In addition, Article 9 protects distinct external manifestations of religious liberty (forum externum)52 from impermissible limitations; these manifestations are named as worship, teaching, practice and observance. The scope of protection depends on how the ECtHR defines the zone of conscience; how broadly or narrowly the ECtHR construes the protected sphere of religious manifestations; and how the ECtHR understands acceptable limitations. In the past decade, the ECtHR extended to some extent the array of protected manifestations under Article 9. However, it continues its previous interpretation of the limitation clause of Article 9(2), leading to the acceptance of restrictions on religious freedom. 4.1

The Expanding Scope: From Liberty to Identity Protection

The ECtHR has construed the scope of protected manifestations broadly, although not every behavior motivated by religion is protected under Article 9.53 When deciding whether a particular behavior motivated by conscience is protected by the ECHR, the ECtHR measures not whether it is compatible with the official teachings of a religion or customary in a religious community, but whether it is motivated by “a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9.”54 The ECtHR (like other courts) refrains from qualifying religious beliefs.55 This stance may be explained by proverbial judicial skepticism, or even unease in the domain of theology. This openness is countered by limiting the power of conscience in foro externo: “Article 9 does not always guarantee the right to behave in a manner governed by a religious belief and does not confer on people who do so the right to disregard rules that have proved to be justified.”56 The standard used by the ECtHR might be read as a means to ensure that conscience claims are not 52 In practice, the delineation between the inviolable core of the right and its manifestation is not crystal clear. 53 Christoph Grabenwarter, European Convention on Human Rights. Commentary 239 (2014). See Kalac v. Turkey, App. no. 20704/92, Eur. Ct. Hum. Rts., Judgment of July 1, 1997. 54 As formulated in Bayatyan v. Armenia, supra note 12, para. 110, referring back to Campbell and Cosans v. the United Kingdom, App. nos. 7511/76, 7743/76, Eur. Ct. Hum. Rts., Judgment of February 25, 1982, para. 36 (under Article 2 of Protocol no. 1), and later invoked under Article 9 in Valsamis v. Greece, App. no. 21787/93, Eur. Ct. Hum. Rts., Judgment of December 18, 1996, para. 25. Also: Enver Aydemir v. Turkey, App. no. 26012/11, Eur. Ct. Hum. Rts., Judgment of June 7, 2016, paras. 81–83 (beliefs about the secular nature of the Turkish state did not amount to protected convictions). 55 Cf. e.g. Kokkinakis, supra note 7, as discussed above. 56 Leyla Sahin v. Turkey, supra note 18, para. 121, citing: Pichon and Sajous v. France, App. no. 49853/99, Eur. Ct. Hum. Rts., Decision of October 2, 2001 and Valsamis v. Greece, supra note 54, Opinion of the Commission, 2337, para. 51.

296  Constitutions and religion abused; at the same time, the same standard may easily run counter to the foundational principle of the prohibition of coercion in matters of conscience.57 In fact, protecting idiosyncratic convictions – even if they are religious – or other beliefs would be a problematic extension of the freedom of religion and belief as a right. In the past, the ECtHR has accepted as a manifestation of religious freedom a wide range of behaviors, as diverse as the inclusion of one’s faith on a national ID card58 or adherence to religiously motivated diets59 (though it was not interested in the difficulties imposed by the state in the exercise of the right). Nonetheless, the ECtHR has not revealed the applicable test or standards so far.60 This is partly due to its standard methodology of concentrating on the specific circumstances of each case. The instances in which the ECtHR did not find an interference with religious freedom are diverse. Beyond Tsedek (discussed above),61 in Skugar the ECtHR did not accept as a protected manifestation of religion the rejection of a general tax identification number (on account of it being the mark of the devil).62 In Pichon and Sajous the ECtHR refused a conscientious objection claim from French pharmacists to sell contraceptive pills on a prescription; as the pills were legal, the applicants could “manifest those beliefs in many ways outside the professional sphere.”63 In Kosteski the ECtHR emphasized that “there is no right as such under Article 9 to have leave from work for particular religious holidays;”64 and in Sessa a similar logic was held applicable in the exercise of a profession in the context of administration of justice.65 In the employment context, the European Commission of Human Rights initially emphasized that religious employees were free to choose another place of work.66 This was in line with the approach that non-fatal burdens related to religious exercise do not amount to limitations. In 2013 in Eweida, the ECtHR changed its long-held stance and said that:

57 Paul Taylor, Freedom of Religion. UN and European Human Rights Law and Practice 43–50 (2005). 58 Sinan Isik v. Turkey, App. no. 21924/05, Eur. Ct. Hum Rts., Judgment of February 2, 2010. 59 When the applicant is in prison, the ECtHR assesses access to a religiously inspired diet from the perspective of positive obligations and tests whether a fair balance was struck between the interests of prison authorities and religious liberty: Jakóbski v. Poland, App. no. 18429/06, Eur. Ct. Hum. Rts., Judgment of December 7, 2010; Vartic v. Romania (no. 2), App. no. 14150/08, Eur. Ct. Hum. Rts., Judgment of December 17, 2013. This attitude may well be explained by the complete dependence of the applicant. For the ordinary situation see Cha’are Shalom ve Tsedek, supra note 43. 60 Megan Pearson, Article 9 at Crossroads. Interference Before and After Eweida, 13(3) Hum. Rts. L. Rev. 580 (2013). 61 Cha’are Shalom ve Tsedek, supra note 43: there is no interference when there is no legal possibility to take part in person in the performance of ritual slaughter as glatt kosher meat can be obtained from abroad. 62 Skugar v. Russia, App. no. 40010/04, Eur. Ct. Hum. Rts., Decision of December 3, 2009. 63 Pichon and Sajous, supra note 56. 64 Kosteski v. The Former Yugoslav Republic of Macedonia, App. no. 55170/00, Eur. Ct. Hum. Rts. Judgment of April 13, 2006, para. 45. Note that this was a claim coming from a member of a minority religious community, a Muslim. The ECtHR indicated that the applicants claim would have been within Article 9 had the genuineness of his beliefs been questioned in the disciplinary process. 65 Francesco Sessa v. Italy, App. no. 28790/08, Eur. Ct. Hum. Rts., Judgment of April 3, 2012: no violation of religious liberty when a court hearing was scheduled for a Jewish holiday despite the request of the Jewish attorney who repeatedly asked for postponement and had a trainee to replace him. 66 For a summary of earlier jurisprudence, see Eweida and Others v. the United Kingdom, App. nos. 48420/10; 36516/10; 51671/10; 59842/10, Eur. Ct. Hum Rts., Judgment of January 15, 2013, para. 83.

Individual religious freedom under the ECHR  297 Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate. (emphasis added)

However, in public employment the duty of the state to be neutral was found to be a ground for limiting manifestation of religion.67 The employment context is further complicated by the nature of the specific conduct for which an exception is claimed from the general rules. Contrary to workplace absence, the display of religious symbols and religiously dictated garb may have an impact on third parties – customers of the private employer in particular. As mentioned above, the third parties’ perception can be decisive in public employment. It is not obvious that all conduct claimed as manifestations falls within the four corners of “worship, teaching, practice and observance” listed in Article 9. In its early case law the ECtHR tried to avoid this question by defining the issue narrowly, insisting in Karaduman that the wearing of a headscarf on a photo required for the issuance of a university degree certificate did not amount to a protected manifestation under Article 9.68 In contrast, in 2005 in Leyla Sahin the Grand Chamber simply found that the headscarf ban amounted to an interference with Article 9 because the Turkish government did not contest this point;69 the ECtHR did not assess whether wearing a headscarf was a manifestation of religious liberty on any of the protected grounds. In 2013 in Eweida, the applicant’s “insistence on wearing a cross visibly at work was motivated by her desire to bear witness to her Christian faith” was sufficient for the ECtHR to classify it as a protected manifestation, without testing whether it was a matter of worship, teaching, practice and observance.70 It does not appear to be any of these; but it is certainly a manifestation of the person’s identity. Wearing a headscarf is not required by a specific religious command: it expresses what the applicant claims to be, without engaging in religious activity. In 2014 in S.A.S. v. France, the Grand Chamber took the wearing of the burqa in public to be a personal choice for reasons related to beliefs to be protected under Articles 8 and 9.71 In 2015 in Ebrahimian the ECtHR found that wearing a headscarf is the “undisputed expression of [applicant’s] adherence to the Muslim faith.”72 It is not the manifestation of the religion (observance or practice) or a matter of conscience that is protected, but rather of adherence or belonging – a matter of identity. In 2016 in Dakir the wearing of a burqa in public was accepted as a form of manifesting a religion or conviction under Article 9.73 Thus, the ECHR’s 67 Ebrahimian v. France, App. no. 64846/11, Eur. Ct. Hr. Rts., Judgment of November 26, 2015, para. 85. 68 Karaduman, supra note 18. 69 Leyla Sahin, supra note 18, paras. 75–78. 70 Eweida, supra note 66, para. 89. 71 S.A.S., supra note 18, para. 106. 72 Ebrahimian, supra note 67, para. 47. 73 Dakir v. Belgium, App. no. 4619/12, Eur. Ct. Hr. Rts., Judgment of July 11, 2017, para. 47 (joint application of Articles 8 and 9). In Hamidovic v. Bosnia-Herzegovina, App. no. 57792/15, Eur. Ct. Hr. Rts., Judgment of December 5, 2017 the ECtHR found a violation of Article 9 when the applicant – a Muslim accused of terrorism – was ordered at the pain of contempt of court to remove his skullcap in court. The ECtHR distinguished all the cases which concerned the wearing of religious symbols at the

298  Constitutions and religion protection was tacitly extended to expressions of religious identity, as already foreseen in Kokkinakis. This seemingly natural shift from the protection of religious liberty to religious identity claims has become a staple of human right litigation in the era of the culture wars, sometimes also referred to as the era of the conscience wars. This approach has far-reaching consequences. Identity in general and religious identity in particular are notoriously difficult concepts to define, even for the purposes of litigation.74 Religious identity is as much about the sense of one’s authentic self as about the terms of belonging to various communities, to one’s own faith community and also to the larger political community. In sheer legal terms the identity of believers may be expressed through various protected manifestations of religious liberty (as well as through other fundamental rights, such as freedom of expression75 or private life).76 Yet as even this brief account suggests, it is not synonymous with these legal claims. Its elevation to a central freedom of religion right not only may go against the original intent behind the protection of freedom of religion, but – more importantly – privileges religious identity vis-à-vis other forms of identity related to non-religious conscience. As such, it creates new hierarchies and generates new social conflicts. As a minimum, the ECtHR should become conscious of this shift from religious liberty to religious identity claims, and acknowledge that certain aspects of identity claims fall outside the originally envisioned forms of religious manifestation that Article 9 was meant to protect. This might entail a somewhat less demanding judicial scrutiny compared to the protection afforded to core free exercise rights. 4.2

Permissible Limitations: Generosity Mixed with Unpredictability

The ECtHR has usually emphasized that the list of permissible limitations on religious freedom is exhaustive in Article 9(2);77 although it has admitted that it is permissive with the construction of legitimate aims under Articles 8–11.78 Although proportionality analysis – if taken (very) seriously – might counter this inflation, in practice it often does not do so. “Rights of others” in Article 9(2) is construed broadly: collective interests may amount to right of others, without showing a specifically affected individual right. In this calculus, fundamental human rights are theoretically at the level of ordinary rights/interests, simple state creations, privileges and the like. In S.A.S. the Grand Chamber accepted “the right of others to live in a space of socialisation which makes living together easier” as a legitimate reason for prohibit-

workplace (para. 26), in public education and public employment (para. 40), emphasizing that considerations governing in those context do not apply to private citizens (para. 40). 74 For the key premises, see Martha Minow, Identities, 3 Yale J. Law & Humanities 97 (1991). For an informed recent account focusing on religious identity, see, for example, Lauren Sudeall Lucas, The Free Exercise of Religious Identity, 64 UCLA L. Rev. 54 (2017), esp. 67–77. See also Susanna Mancini and Michel Rosenfeld (eds.), The Conscience Wars. Rethinking the Balance between Religion, Identity, and Equality (2018). 75 Ahmet Arslan, App. no. 41135/98, Eur. Ct. Hum. Rts., Judgment of February 23, 2010. 76 S.A.S., supra note 18. 77 See, for example, Svyato-Mykhaylivska Parafiya v. Ukraine, App. no. 77703/01, Eur. Ct. Hum. Rts., Judgment of June 14, 2007, para. 132 and Nolan and K. v. Russia, App. no. 2512/04, Eur. Ct. Hum. Rts., Judgment of February 12, 2009, para. 73. 78 Merabishvili v. Georgia, App. no. 72508/13, Eur. Ct. Hum. Rts. [GC], Judgment of November 28, 2017, paras. 294–97.

Individual religious freedom under the ECHR  299 ing the burqa in public.79 Echoing the dissenting opinion of Judges Nussberger and Jäderblom in S.A.S, more recently Judges Spano and Karakas argued in a concurring opinion that “living together” as a permissible limitation is too vague and applies only in this specific setting.80 They warn that the notion of “living together” has a strong majoritarian flavor and as such cannot become the measure of restrictions on human rights.81 So far, there seem to be some non-specific inherent limits to this extension of permissible limitations: in S.A.S. the Grand Chamber ruled that, under the label of protecting the rights of others, “a State Party cannot invoke gender equality in order to ban a practice that is defended by women.”82 In the religious liberty context, the ECtHR is seen to be too ready to take into consideration that a restrictive measure is justified by the specific constitutional principles on the organization of the public square. Laïcitè or the secular state (e.g. to support headscarf bans) as a constitutional principle in certain member states (e.g. France, Turkey and Switzerland) was a factor in the proportionality analysis (and similar considerations were accepted in cooperative systems when it came to the acceptance of privileging majority religion related exceptions). The ECtHR accepted these considerations as relevant because it found the constitutional organization of church-state relations to be compatible with the ECHR.83 Such relations are perhaps subject to less concern and duty of justification when it comes to models of church-state cooperation; understandably so, because in cooperation-based systems, the issue is usually not the denial of an exception, but alleged discrimination vis-à-vis religious minority practices that are not exempted.84 As Lautsi indicates, the ECtHR is ready to accept the domestic understanding of neutrality and insists only on the European standard of prohibition of indoctrination (short of neutrality).85 When the ECtHR automatically yields to national constitutional conceptions on neutrality or laïcité in the spirit of subsidiarity, it runs the risk of failing to assess the impact of the measure justified in the name of neutrality on the religious liberty of the very applicant whose case is before the ECtHR.86 Such acceptance of a national construct of church-state relations may result in taking religious motives on board or endorsing the presence of historic churches in the public square, as much as confirming the distance between the secular and the spiritual.87 While Eweida might reflect an increased sensibility in matters of individual religious identity expression (at least in certain semi-private and non-official public spheres), the ECtHR remains faithful to its context-specific impact assessment methodology. In this area, the balancing exercise may easily tilt against the applicant in the face of overwhelming public interests, depending on the context of the conduct. In 2017, in Osmanoğlu and Kocabaş the ECtHR rejected the application of Muslim parents challenging mandatory mixed-sex swimming

S.A.S., supra note 18, para. 122. Dakir, supra note 73, concurring opinion of Judges Spano and Karakas, para. 5. 81 Dakir, supra note 73, concurring opinion of Judges Spano and Karakas, para. 7. 82 S.A.S., supra note 18, para. 119. 83 See, for example, Sindicatul “Păstorul cel Bun,” supra note 13, para. 138. 84 See sources supra note 21. Be that as it may, some commentators see such deference by the ECtHR as a sign of a secularizing mission. 85 Lautsi, supra note 20, para. 62. 86 As pointed out by Judge Tulkens in her separate opinion in Leyla Sahin, supra note 18. See recently Ronan McCrea, Secularism Before the Strasbourg Court: Abstract Constitutional Principles as a Basis for Limiting Rights, 79(4) Modern L. Rev. 691 (2016). 87 See, for example, Mancini and Rosenfeld, supra note 19, 160–65. 79 80

300  Constitutions and religion classes in public schools for children before puberty. In the case parental (personal) interests were pitched against the competing public interests served by public education in a secular state, including the social integration of children of foreign origin88 through participating in a common activity with health and developmental benefits.89 The ECtHR emphasized that permitting parents to take their children to private swimming classes would result in inequalities between the children based on wealth (most likely in the sense that the better off would be able to teach children swimming in conformity with their religious convictions).90 Note the context of accommodationist church-state relations: the cantonal law did allow for religious exemption for children who had reached puberty, out of respect for mainstream Islam. Assuming that the refusal of common activities (i.e. swimming, which is arguably not quintessential for education) is a matter of religious manifestation,91 the ECtHR’s approach indicates that people (children in particular) can be protected against the (personal or social) consequences of their religious beliefs. However, technically, the children were not the applicants in the case and the issue concerned the religious beliefs of their parents. Thus, consequentialist considerations apply to children in need of the protection of the state. Note further that the prohibition of arbitrariness also applies to how far the state can reach in pursuing an otherwise legitimate government objective. 4.3

Impressionistic Non-Discrimination

Although religion is expressly listed in Article 14 as a prohibited ground of discrimination, it is unclear whether it triggers the highest level of scrutiny under Article 14 when read together solely with Article 9. Religion is a personal trait that is central to one’s self-worth and identity as a human being, and has been a source of persecution and stigmatization for centuries with regard to minority religions. Similar reasons were sufficient for placing gender, sexual orientation and disability among the “suspect classes.”92 Arguably, in the case of some historically persecuted religions, there is no longer any lasting prejudicial social effect (e.g. Catholics in England or Protestants in France). Being afforded the highest standard of review is not a symbolic question: in the ECtHR’s non-discrimination jurisprudence, the standard of scrutiny determines the seriousness of the acceptable justification for direct as well as indirect discrimination.93 In 2010 in Milanovic, a case of anti-religious violence decided under Article 3, the ECtHR said that “[t]reating religiously motivated violence and brutality on an equal footing with cases that have no such overtones would be turning a blind eye to the specific nature of acts that are

Osmanoğlu and Kocabaş, supra note 43, para. 96. Osmanoğlu and Kocabaş, supra note 43, para. 98. 90 Osmanoğlu and Kocabaş, supra note 43, para. 100. 91 The applicant is not required to show that there is a nexus between his or her beliefs and the manifestation. This makes sense in view of the need to protect minority religions and religious dissenters, but is less evident from a common-sense perspective. 92 Oddny Mjöll Arnardóttir, The Differences that Make a Difference: Recent Developments on the Discrimination Grounds and the Margin of Appreciation under Article 14 of the European Convention of Human Rights, 14 Hum. Rts. L. Rev. 647 (2014). 93 Sandra Fredman, Emerging from the Shadows. Substantive Equality and Article 14 of the European Convention on Human Rights, 16 Hum. Rts. L. Rev. 273, 280 (2016). 88 89

Individual religious freedom under the ECHR  301 particularly destructive of fundamental rights.”94 The case concerned a believer of a “new” minority faith. Then in February 2013, in Vojnity v. Hungary, under Article 8 in conjunction with Article 14, the ECtHR emphasized that the removal of the applicant’s access to his biological son on account of his faith had to be justified by very weighty reasons (i.e. the highest level of justification) under Article 9, likening religious discrimination to one based on several familiar suspect grounds.95 Again, the interference in the case was the targeting of a minority religion’s believer. These developments led many – among them the former vice president of the ECtHR, Francois Tulkens – to conclude that religion is finally included among the suspect grounds.96 Ambiguity about the applicable standard is due to the fact that on some occasions, the ECtHR did not respond to the applicants’ submission that religion should be treated as a suspect ground under Article 9 read together with Article 14;97 while in several more recent cases, it required only objective and reasonable justification for religious discrimination.98 In the latter cases a violation was found even under the lower standard of review, and the ECtHR reiterated the duty of member states to act in a neutral and impartial manner toward religious communities and believers. Recently, when Jehovah’s Witnesses in Georgia complained about discrimination, the ECtHR found that “the Georgian authorities created a climate of impunity, which ultimately encouraged other attacks against Jehovah’s Witnesses throughout the country.”99 Reaching this conclusion did not require it to apply the particulars of non-discrimination analysis.

5.

THE DUTY OF NEUTRALITY AND IMPARTIALITY: A SUI GENERIS REQUIREMENT ENTERS THE SCENE

According to the ECtHR, individual freedom of religion depends on the attitude of the state toward religious pluralism. The role of the state is “not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other.”100 Furthermore, “the preservation of pluralism and the proper functioning of democracy, one of the principle [sic] characteristics of which is the possibility it offers of resolving a country’s problems through dialogue, without recourse to violence, even when they are irksome.”101 It was against 94 Milanovic v. Serbia, App. no. 44614/07, Eur. Ct. Hum. Rts., Judgment of December 14, 2010, para. 97. 95 Vojnity v. Hungary, supra note 22, para. 36. 96 Francois Tulkens, Freedom of Religion under the European Convention of Human Rights. A Precious Asset, 2014 BYU L. Rev. 509, 515 (2014). 97 Eweida, supra note 66, para. 73 (third applicant) and Church of Jesus Christ of Latter Day Saints v. The United Kingdom, App. no. 7552/09, Eur. Ct. Hum. Rts., Judgment of March 4, 2014, para. 20. 98 For example, see the cases affecting the Alevi minority in Turkey (Cumhuriyetci Egitim ve Kültür Merkezi Vakfi v. Turkey, App. no. 32093/10, Eur. Ct. Hum. Rts., Judgment of December 2, 2014, para. 45 and İzzettin Doğan, supra note 41, para. 156). 99 Tsartisdze and others v. Georgia, supra note 25, para. 78, quoting Begheluri and Others v. Georgia, App. no. 28490/02, Eur. Ct. Hum. Rts., Judgment of October 7, 2014, para. 145. 100 S.A.S., supra note 18, para. 127, with reference to Serif, supra note 10, para. 58 and Leyla Sahin, supra note 18, para. 107. 101 Metropolitan Church of Bessarabia, supra note 17, para. 11 (citing United Communist Party of Turkey and Others v. Turkey, App. no. 19392/92, Eur. Ct. Hum. Rts., Judgment of January 30, 1998, para. 57).

302  Constitutions and religion this background that the duty of neutrality was first invoked to introduce the prohibition of the assessment of the legitimacy of religious beliefs102 and the prohibition of the arbitrary exercise of state powers regarding religious communities and believers.103 Of course, neutrality may protect religious manifestations against discrimination, but it may as well limit free exercise of religion for the sake of (or at least in the name of) mutual toleration and pluralism. State neutrality is a rather fuzzy concept, with several potential practical applications, not all of which are equally friendly to both individual religious liberty and church-state relations.104 The case law of the ECtHR relies on the concept of state neutrality in two distinct modalities. First, in certain contexts the ECtHR accepts the principle of state neutrality (or its functional equivalents, such as secularism or laïcité) as drawn from the constitutional regimes of the member states as a justification for the limitation on religious freedom. Headscarf bans in Turkey, France and Switzerland were all justified as means to ensure social tranquility in terms of their own constitutionally salient conception of neutrality.105 At the same time, the ECtHR also uses the requirement of state neutrality as a genuine or sui generis source of obligations under the ECHR, inspired by the minimum standards familiar from freedom of association jurisprudence (under Article 11).106 The aim of these limitations is to prevent the arbitrary exercise of state (especially discretionary and regulatory) powers through giving effect to such animating principles of the ECHR in practice as the rule of law.107 5.1

Pluralism Management and the Tyranny of the Majority

The emergence of a sui generis concept of state neutrality and impartiality must be seen in light of the ECtHR’s slowly developing awareness of the tyranny of the majority in the religion context. In 1981, in the context of trade unions in Young, James and Webster, the ECtHR warned about the very real possibility of the tyranny of the majority in general terms, noting that:

102 For the early cases see, for example, Hasan and Chaush, supra note 10, para. 62; Metropolitan Church of Bessarabia, supra note 17, para. 118, 123; Moscow Branch of the Salvation Army, supra note 11, para. 58; Church of Scientology of Moscow v. Russia, App. no. 18147/02, Eur. Ct. Hum. Rts., Judgment of April 5, 2007, para. 72; Svyato Mykhaylivksa Parafiya, supra note 77, para. 113; Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy), supra note 17, para. 120. 103 For the early cases see, for example, Hasan and Chaush, supra note 10, para. 85; Svyato Mykhaylivksa Parafiya, supra note 77, para. 130. 104 On this triangular relationship, see generally Jeroen Temperman, The Netural State: Optional or Necessary? A Triangular Analysis of State-Religion Indentification, Democratisation and Human Rights Compliance, 1 Relig. & Hum. Rts. 269 (2006) (arguing for accommodative non-partisanship). 105 See, for example, Leyla Sahin, supra note 18, para. 114. 106 In the early cases see prominently in Moscow Branch of the Salvation Army, supra note 11, para. 58. For a recent summary of general principles see, for example, Magyar Keresztény Mennonita, supra note 13, paras. 75–80. 107 On broader implications see Saila Ouald Chaib, Procedural Fairness as a Vehicle for Inclusions in the Freedom of Religion Jurisprudence of the Strasbourg Courts, 16 Hum. Rts. L. Rev. 483 (2016); Eva Brems and Laurens Lavrysen, Procedural Justice in Human Rights Adjudication. The European Court of Human Rights, 35 Hum. Rts. Q. 176 (2013); Jeroen Temperman, State-Religion Relationship and Human Rights Law. Towards a Right to Religiously Neutral Governance 339 et seq. (2010).

Individual religious freedom under the ECHR  303 although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.108

The formulation travelled to the religion setting in 1996 in the pair of religious education cases of Valsamis and Efstratiou.109 Later, this concern developed into a requirement of positive accommodation of the specificities of a religious minority, justified by a concept of pluralist democracy promoting religious harmony and tolerance in society:110 respect on the part of the State towards the beliefs of a minority religious group like the applicant’s by providing them with the opportunity to serve society as dictated by their conscience might, far from creating unjust inequalities or discrimination as claimed by the Government, rather ensure cohesive and stable pluralism and promote religious harmony and tolerance in society. (emphasis added)111

It was in this spirit that the ECtHR emphasized recently, in a case concerning the rights of religious communities, that small religious communities – such as Jehovah’s Witnesses in Turkey – do not need purpose-built structures as a place of worship; a simple meeting room is sufficient to meet their needs.112 State authorities insisting on architectural specifications tailored for traditional religions appear as though they abuse their regulatory powers over unwanted religious minorities. Without expressly mentioning the minority position of the applicants in an otherwise religiously diverse society, the heart of the ECtHR’s original message on tyranny of the majority is easily lost. The state’s failure to recognize the religious nature of minority believers’ practices triggers a sense of inferiority, making them feel like second-class citizens, in violation of the principle of state neutrality.113 This approach sits comfortably with developments in the case law where the ECtHR started to consider the power relations between religious groups, reflecting on the impact of the abuse of a majority position, instead of simply repeating the standard recital on the duty to preserve pluralism in a democracy. The requirement of state neutrality is often routinely attached to 108 Young, James and Webster, App. nos. 7601/76, 7806/77, Eur. Ct. Hum. Rts., Judgment of October 18, 1982, para. 63 (right not to be compelled to join a union). 109 Valsamis, supra note 54, para. 27 and Efstratiou v. Greece, App. no. 24095/94, Eur. Ct. Hum. Rts., Judgment of December 18, 1996, para. 28. 110 Starting in Cha’are Shalom ve Tsedek, supra note 43; also in Refah Partisi and others v. Turkey, App. nos. 41340/98, 41342/98, 41343/98, 41344/98, Eur. Ct. Hum. Rts. [GC], Judgment of February 13, 2003, para. 91; Leyla Sahin, supra note 18, para. 107, Gldani Congregation, supra note 25, para. 132; Dogru v. France, App. no. 27058/05, Eur. Ct. Hum. Rts., Judgment of December 4, 2008, para. 62; Grzelak v. Poland, App. no. 7710/02, Eur. Ct. Hum. Rts., Judgment of June 15, 2006, para. 86; Bayatyan, supra note 12, para. 120; S.A.S., supra note 18, para. 127; more recently in İzzettin Doğan, supra note 41, para. 107. 111 Bayatyan, supra note 12, para. 126. See also Erçep v. Turkey, App. no. 43965/04, Eur. Ct. Hum. Rts., Judgment of November 22, 2011, para. 62. 112 Association de Solidarité avec les Temoins de Jehovah et autres v. Turkey, App. nos. 36915/10, 8606/13, Eur. Ct. Hum. Rts., Judgment of May 24, 2016, para. 105. 113 Magyar Keresztény Mennonita, supra note 13, paras. 92, 94. For a precursor see Judge Sajó, concurring in Cumhuriyetci Egitim ve Kultur Merkezi Vakfi v. Turkey, App. no. 32093/10, Eur. Ct. Hum. Rts., Judgment of December 2, 2014 [“L’absence de reconnaissance de la nature religieuse des pratiques alévies suscite un sentiment d’infériorité chez les adeptes de cette confession, qui sont traités comme des citoyens de deuxième classe, au mépris du principe de neutralité de l’État.”]

304  Constitutions and religion a requirement of impartiality, as another aspect of the duty to preserve pluralism, without further explanation. According to the standard formula: “in exercising its regulatory power in this sphere and in its relations with the various religions, denominations and beliefs, the State has a duty to remain neutral and impartial.”114 At the same time, this approach is clearly not traceable in cases where the state manifested a strong religious (Lautsi) or ideological (Osmanoglu and Kocabas) preference, imposing a limitation on the manifestation of individual religious liberty and freedom of conscience. 5.2

On the Consequences of a Sui Generis Requirement of State Neutrality

The evolution of the duty of state neutrality along these lines has major consequences for the protection of individual religious liberty under Article 9, at least as far as the negative aspect of religious liberty is concerned. Unlike Article 18(2) of the ICCPR, Article 9 does not prohibit coercion in matters of faith explicitly. While the ECtHR has recognized the prohibition of indoctrination in the education context,115 it has not expressly stated a general prohibition of coercion under Article 9. This does not mean that coercion is not a fundamental concern for the ECtHR, but it indicates that there are alternative doctrinal routes to provide equivalent protection. The ECtHR found that taking a religious oath116 or having to carry an ID card showing a religion other than one’s own117 violates Article 9. The basis of these judgments was, however, the freedom not to hold religious beliefs and to practice or not to practice a religion (without reference to the problem of coercive state practice). Moreover, coercion as brutality or humiliation falls under Article 3 – a framework clearly offering more robust protection against the most invasive interference with individual liberty. The negative freedom, however, does not protect against state-mandated conduct that may at the same time amount to some kind of compelled declaration of religious identity – a gesture that may jeopardize the duty of neutrality. In Wasmuth the ECtHR found no problem with having to indicate one’s religious affiliation or the lack thereof on the “wage card” (a form of ID presented to employers, inter alia, so that they can deduct church taxes).118 According to the ECtHR, leaving the box indicating religious affiliation empty on the wage card communicates only that the applicant does not belong to one of the six churches participating in the church tax scheme, and this information is available only to employers and the tax authorities. Throughout the case the ECtHR emphasized that the box was included on the wage card as a consequence of Germany’s constitutionally sanctioned church tax system. The ECtHR

114 See, for example, Barankevich v. Russia, App, no. 10519/03, Eur. Ct. Hum. Rts., Judgment of July 26, 2007, para. 30, citing Metropolitan Church of Bessarabia, supra note 17, paras. 115–16. 115 See Kjeldsen, Busk Madsen and Pedersen v. Denmark, App. nos. 5095/71, 5920/72, 5926/72, Eur. Ct. Hum. Rts., Judgment of December 7, 1976, para. 53. 116 Buscarini v. San Marino, App. no. 24645/94, Eur. Ct. Hum. Rts. [GC], Judgment of February 18, 1999, and Alexandridis v. Greece, App. no. 19516/06, Eur. Ct. Hum. Rts., Judgment of February 21, 2008. 117 Sinan Isik v. Turkey, App. no. 21924/05, Eur. Ct. Hum. Rts., Judgment of February 2, 2010. 118 Wasmuth, App. no. 12884/03, Eur. Ct. Hum. Rts., Judgment of February 17, 2011. In Wasmuth the ECtHR was not called to consider whether a neutral state can require a person at all to confess his or her religious belonging or non-belonging on a tax return.

Individual religious freedom under the ECHR  305 accepted that this wage card was “function bound” (i.e. used for tax purposes only) and did not mandate an act contrary to conscience. Wasmuth is a borderline situation, as it reflects on the unique technical features of Germany’s cooperationist church-state regime. The general principle indicating a European minimum standard was exposed in Buscarini, a case brought by freshly elected members of the Parliament of San Marino, who refused to swear an oath on the Gospels on pain of losing their seats.119 The ECtHR agreed with the European Commission on Human Rights that “it would be contradictory to make the exercise of a mandate intended to represent different views of society within Parliament subject to a prior declaration of commitment to a particular set of beliefs.”120 So far, the ECtHR has made little attempt to distinguish between various settings in life in assessing the impact of an interference with individual religious liberty. Since Kokkinakis, the ECtHR has insisted that in a plural democracy, individuals must endure a certain degree of interference with their freedom. The degree of acceptable intrusion depends on the scope of protection, on limitations the ECtHR finds proportionate as well as on the width of the margin of appreciation. Serious engagement with the duty of state neutrality and the prohibition of coercion would require the ECtHR to differentiate between various scenes of the public sphere (e.g. education, employment, public administration, the street) and assess the extent of permissible interference in a more nuanced manner, paying closer attention to the types of concessions believers living in a plural democracy are required to make. However, such differentiation – especially if clear and simple grounds for the distinction cannot be developed – runs the risk of casuistic hairsplitting, a phenomenon that had troubling consequences in U.S. constitutional jurisprudence of public support to denominational schools. Nonetheless, it is likely that, as a result of reforms emphasizing subsidiarity, the ECtHR will continue with its facts-based, circumstance-bound approach.

6. CONCLUSION This chapter has attempted to spot individual religious liberty (as distinct from collective religious freedom, as well as from the protection of religious identity) in the case law of the ECtHR. We found that the ECtHR’s initial emphasis on placing the protection of religious liberty in the context of managing religious pluralism resulted in several uncertainties and inconsistencies in the jurisprudence. To be fair, when applying Article 9, the ECtHR faces serious difficulties, due to historic differences between member states and the salience of religion in public life. Nonetheless, the often-noted lack of principled foundations (or at least consistent guidance) in the ECtHR’s freedom of religion jurisprudence is unfortunate in the post-secular era, where liberty claims are all the more often presented as identity claims. Although the duty of pluralism management á la Kokkinakis continues to serve as a default setting and there is an unfortunate appreciation of identity claims (to the detriment of the protection of individual liberty), the evolution of a sui generis duty of state neutrality is traceable in the case law. For the time being, the most promising developments against this tide are scattered across cases; although its elements are familiar from the case law under other articles Buscarini, supra note 116. Buscarini, supra note 116, para. 39.

119 120

306  Constitutions and religion and resonate with the ECtHR’s general understanding that “the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law.”121 This is a welcome development, as these fragments may be assembled into general principles or at least coherent premises for the protection of individual religious liberty.122

121 Merabishvili v. Georgia, supra note 78, para. 307. Also Baka v. Hungary, App. no. 20261/12, Eur. Ct. Hum. Rts. [GC], Judgment of June 23, 2016, para. 117: “[Rule of law as a] concept, which is expressly mentioned in the Preamble to the Convention and is inherent in all the Articles of the Convention.” Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights (2013). 122 On the modalities of state support for religions and its problematic consequences, see Ronan McCrea, The Consequences of Disaggregation and the Impossibility of a Third Way, in Religion in Liberal Political Philosophy 69 (Cécile Laborde and Aurélia Bardon eds., 2017).

18. Religion in the constitutional order of the European Union Ronan McCrea

1. INTRODUCTION The issues that arise in the relationship between religion and the constitutional order in liberal democracies generally also arise in the constitutional order of the European Union, but they do so in a distinctive form.1 Like most polities, the EU’s approach to religion must address itself to the question of the separation of religious and political authority, the limits of religious freedom and the reconciliation of the idea of state neutrality towards religion with the reality of that particular religions have had a significant (usually foundational) influence on national cultures. However, the EU must carry out this task conscious of its own limited democratic legitimacy and the consequent requirement that it balance its need to develop and protect its own distinctive constitutional values with the need to respect member state autonomy in religious matters. This dilemma is particularly acute because EU law is used not only to form the EU’s own approach to religion, but also – in common with the European Convention on Human Rights (ECHR) – as a means to challenge national settlements on religious matters. This role can be engaged when an individual or institution brings a case before the Court of Justice of the European Union (CJEU) alleging that a national law or practice relating to religion that falls within the scope of EU law violates EU legislation or shared European fundamental rights norms. Given the sensitivity of religious issues, this is a role that the EU is usually reluctant to take on; and to date, the approach of EU law has been largely, but not totally, ‘hands off’. The approach of the EU’s constitutional order to religion can be broken down into three main themes. The first section of this chapter deals with the relationship between religion and state under EU law. The second deals with the EU’s approach to freedom of religion; and the third deals with anti-discrimination law, which is the area of EU legal competence most likely to interfere with national arrangements relating to religion.

2.

RELIGION AND STATE

The EU’s approach to religion is based on two pillars: the predominantly Christian religious heritage of its member states; and the strong secular and humanist tradition that limits the political and legal influence of religion and requires some degree of separation between religion and state. The growth of the EU beyond its origins as an economic project has meant that, as the Union’s competence has expanded into a wider range of policy areas, the need to develop 1 For a more extensive account of religion in the constitutional order of the EU, see Ronan McCrea, Religion and the Public Order of the European Union (2013).

307

308  Constitutions and religion and state its fundamental values has become greater. With every successive revision of the Treaties, references to human rights and to the Union’s status as a community of values have become more numerous and more explicit. However, the relationship between the EU’s constitutional order and religion is often implicit and must be drawn out of rulings and statements on other matters. That said, the negotiations on the Preamble to the Constitutional Treaty (later reproduced in the Lisbon Treaty) provided a relatively rare instance of explicit debate on the role of God and religion in the EU Constitution. The main source of disagreement was the desire of some member states (and a number of religious organizations, including the Catholic Church) to include a reference either to Christianity or to God as a source of the Union’s values.2 Following significant debate, both political and academic, the final version of the Treaty agreed on the insertion of the following into the Preamble of the Treaty: ‘Drawing inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law […]’.3 This formulation involves recognition of a religious element to the Union’s values. In addition, by linking this recognition to the idea of ‘inheritance’, this means that Christianity – the religion that forms by far the largest element of Europe’s religious inheritance – will form the main part of this religious element. On the other hand, recognition of this religious element is counterbalanced by references to cultural and humanist influences which have functioned so as to reduce the influence of religion over public life in Europe. Furthermore, the text makes it clear that recognition of Europe’s religious inheritance is recognized as being valuable due to its role in developing human rights, democracy, equality and the rule of law; thus implying that religious values inconsistent with democratic human self-government, human rights and equality will not be recognized as part of the Union’s ideological inheritance. The balancing of religious inheritance with secular and humanist norms within the Union’s constitutional order is also seen in Article 17 of the Lisbon Treaty which, inter alia, provides that ‘Recognising their identity and specific contribution, the Union shall maintain an open, transparent and regular dialogue’ with what it terms ‘churches and religious associations or communities in the Member States’, as well as ‘philosophical and non-confessional organisations’.4 This process has led to a structured dialogue between the European Commission and religious bodies which, as Foret has argued,5 does give a degree of preferential access to religious bodies. On the other hand, the Union’s religious neutrality is shown by the fact that it has insisted on equal participation rights for non-religious groups such as secular and humanist organizations in this process of structured dialogue. Indeed, as will be discussed below, Article 17 has been interpreted by the CJEU as expressing the Union’s ‘neutrality towards the organization by Member States of their relations with churches and religious associations and

See, for example, Joseph Weiler, Un’Europa cristiana (2003). Treaty on the European Union, Preamble, OJ C 202 (2016). 4 Treaty on the Functioning of the European Union, Article 17, OJ C 202 (2016). 5 Francois Foret, Religion and Politics in the European Union: The Secular Canopy (2015). 2 3

Religion in the constitutional order of the European Union  309 communities’, and has not been seen as the basis to grant broad exemptions from EU discrimination law to religious employers.6 This refusal to associate the EU with any particular faith or, indeed, to indicate any preference for religion over non-religion is reinforced in the Guidelines on the Promotion and Protection of Religion and Belief which were unanimously agreed by the member states in 2013, and which state explicitly: The EU does not consider the merits of the different religions or beliefs, or lack thereof but ensures that the right to believe or not to believe is upheld. The EU is impartial and is not aligned with any specific religion or belief.7

As will be discussed below, this is an approach to religious freedom that chimes with the consistent statement of the European Court of Human Rights (ECtHR) that Article 9 of the ECHR applies equally to non-religious forms of belief8 and the approach of the CJEU in the ruling in Y and Z in relation to the right to asylum on grounds of religious persecution, where it held that religious freedom covered ‘the holding of theistic, non-theistic and atheistic beliefs’.9 The secular-humanist influence seen in the EU’s refusal to favour religion over non-religion is also seen in its enlargement policy, in which it has been made clear that states wishing to join must comply with a requirement of ‘democratic secularism’.10 This criterion has been interpreted so as to require states to maintain limits on religious influence over law and to prevent the use of the criminal law to enforce religious teachings in areas such as lesbian, gay, bisexual and trans (LGBT) rights and sexual morality. The EU is therefore a polity whose own constitutional order is committed to separation of religion and politics, and which shows no preference for any particular faith or for religious over non-religious forms of belief. Yet I have said that the EU’s approach is characterized by two pillars: one that is secular and one that draws on the largely Christian religious inheritance of its member states. Other than the implicit reference to religious heritage in the Preamble of the Lisbon Treaty, where is the evidence of the religious element? This element acts largely through the commitment of the Union to respect the autonomy of member states in religious matters. This commitment not only means that EU law adopts a hands-off approach that avoids interfering directly in the status of religion at national level, but also provides a means through which religion can exercise an indirect influence over EU law by means of claims of national cultural autonomy. The hands-off approach to the status of religion is explicitly set out in the text of Article 17 of the Lisbon Treaty, which states that ‘the Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States’.11 This provision weighs against the invocation of EU law to overturn arrangements

6 Case C-414/16 Vera Egenberger v Evangelisches Werk für Diakonie und Endwicklung, Judgment of 17 April 2018 (Grand Chamber), para 58. 7 Guidelines on the Promotion and Protection of Religion and Belief, Council of the European Union, Foreign Affairs Council, Luxembourg (24 June 2013). 8 See Ronan McCrea, Singing from the Same Hymn Sheet? What the Differences Between the Strasbourg and Luxembourg Courts Tell Us about Religious Freedom, Non-Discrimination, and the Secular State, 5(2) Oxford Journal of Law and Religion 183–210 (2016). 9 Joined Cases C-71/11 and C-99/11 Y and Z Judgment (Grand Chamber, 5 September 2012). 10 McCrea, supra note 1, Chapters 6 and 7. 11 Treaty on the Functioning of the European Union, Article 17, supra note 4.

310  Constitutions and religion such as recognition of state churches in the member states. However, this deference to state autonomy goes further and allows religion a degree of indirect influence over the substance of EU law. Explicitly religious lawmaking by the Union is ruled out by the EU’s commitment to religious neutrality. It is unthinkable that the EU would seek explicitly to legislate to enforce religious teachings; just as it is unthinkable that EU institutions would symbolically endorse a particular faith – for example, by displaying crucifixes in European Commission buildings. However, EU law regularly allows religiously influenced member state choices to be reflected in EU law by recharacterizing such choices as claims to national cultural or ethical autonomy that can form a part of a broader notion of public policy. The CJEU rejected a challenge to laws restricting Sunday trading on the basis that the freedom to provide services could be restricted by national authorities so as to ensure ‘that working and non-working hours are so arranged as to accord with national or regional socio-cultural characteristics’.12 The Christian Sabbath could therefore be legally protected not to enforce religious law, but because of its status as ‘a regional socio-cultural characteristic’. Similarly, in Schindler the CJEU upheld member state restrictions on gambling on the basis of the ‘particular moral, religious or cultural aspects’ of gambling;13 while in SPUC v Grogan Advocate General Van Gerven characterized restrictions on abortion in Irish law as ‘a policy choice of a moral and philosophical nature the assessment of which is a matter for the Member States and in respect of which they are entitled to invoke the ground of public policy’.14 EU law therefore allows religions that are culturally entrenched within member states some scope to indirectly influence the content of EU law by recharacterizing religiously influenced norms as an element of a broader notion of public policy. This raises the question of whether there are limits on this influence. What would happen if it were clear that a member state’s public policy claim aimed entirely or predominantly to enforce religious teaching? The answer to that question is still unclear. The closest the CJEU has come to deciding this issue was in Commission v Poland,15 in which it was faced with a Polish measure that aimed to restrict the movement of genetically modified organisms. The Polish government initially sought to defend this restriction on the basis of the potential harm to the environment and human health, but later sought to justify it on the basis of: a Christian conception of life which is opposed to the manipulation and transformation of living organisms created by God into material objects which are the subject of intellectual property rights; a Christian and Humanist conception of progress and development which urges respect for creation and a quest for harmony between Man and Nature, and, lastly; Christian and Humanist social principles, the reduction of living organisms to the level of products for purely commercial ends being likely, inter alia, to undermine the foundations of society.

As I wrote elsewhere: This represented the clearest attempt to date to have predominantly religiously-justified norms recognized within EU law. It is noteworthy that, even when seeking to justify a measure that relied on religious justifications, the Polish authorities felt obliged to describe the relevant source as ‘Christian and Humanist values’ or ‘ethical and religious considerations’. (emphasis added) 14 15 12 13

Case C-145/88 Torfaen Borough Council v B&Q plc [1989] ECR 3851. Case C-275/92 Her Majesty’s Customs and Excise v Schindler [1994] ECR I-1039. Case C-159/90 SPUC v Grogan [1991] ECR I-4685, Opinion of Van Gerven AG, para 78. Case C-165/08 Commission v Poland [2009] ECR I-06843, para 51.

Religion in the constitutional order of the European Union  311 As it has previously done when faced with highly controversial ethical issues,16 the CJEU chose to sidestep the broader question. It ruled that: for the purposes of deciding the present case, it is not necessary to rule on the question whether – and, if so, to what extent and under which possible circumstances – the Member States retain an option to rely on ethical or religious arguments in order to justify the adoption of internal measures which [restrict EU free movement rights].17

The CJEU was able to sidestep this issue as it found that the Polish authorities had failed to establish that ‘the true purpose of the contested national provisions was in fact to pursue the religious and ethical objectives relied upon’.18 Religious norms therefore can exercise influence over EU law insofar as they can be repackaged as part of a broader public policy. This ‘repackaging’ of religious norms as part of member state culture or as part of a broader public morality that draws on a number of sources may in some cases effectively involve disguised legal enforcement of religious truth. It is possibly because of this danger that the CJEU in Commission v Poland specifically reserved the issue of ‘whether – and if so, to what extent and under which possible circumstances – the Member States retain an option to rely on ethical or religious arguments’ to justify measures derogating from EU law.19 To summarize, the constitutional order of the EU is one that has a clear commitment to the religious neutrality of the EU and its institutions. This is manifested in the refusal of the Union to associate itself with any particular faith and its commitment to equal treatment of religious and non-religious groups and institutions. It also has a clear commitment to ‘democratic secularism’, including some restrictions on religious influence over law.20 At the same time, it is keen not to interfere with the status of religion under national law (a policy that echoes the unwillingness of the ECtHR to use the ECHR to overturn state recognition of official churches, religious symbols in public life or restrictions on religion inherent in laïcité).21 EU law thus permits a degree of indirect religious influence over its laws by allowing member states to repackage religiously influenced norms as part of a broader notion of public policy which will be accommodated by the CJEU. This is a system that allows greater influence on the part of culturally entrenched insider faiths, as the norms of minority faiths are less likely to be susceptible to successful repackaging as part of national culture – though minority religions do have the scope to achieve influence as they make their mark on national cultures over time. By and large, however, this is a permissive system which allows the EU to maintain its own

See Grogan, supra note 14. Case C-165/08 Commission v Poland [2009] ECR I-06843, para 51. See McCrea, supra note 1, foreword. 18 Commission v Poland, supra note 15, at para 52. 19 Ibid, at para 51. 20 McCrea, supra note 1, Chapter 6, where it is shown that the Commission required Romania to decriminalize homosexuality (which had been criminalized at the behest of the Orthodox Church) and forced Turkey to abandon attempts to criminalize adultery as part of the accession project. In addition, the Commissioner responsible for enlargement of the EU stated to the European Parliament that ‘democratic secularism’ was a condition of accession to the Union. 21 See, for instance, Ebrahimian v France ECHR [2015] 1041 (upholding a ban on the wearing of religious symbols by civil servants) and Lautsi v Italy [2011] ECHR 2412 (finding no violation in the ‘passive display’ of a cross in Italian state schools). 16 17

312  Constitutions and religion religious neutrality and secular nature of its political order without extensively interfering with member state arrangements. Only the most blatant attempt to enforce religious norms would be incapable of reformulation as part of broader public policy, so the EU’s relationship to law and religion is much less likely to disturb member state arrangements than either the fundamental rights commitments or substantive legislation of the EU, to which I now turn.

3.

FREEDOM OF RELIGION

Given that it is a Union of liberal democracies and one which has explicitly committed itself to upholding fundamental rights, an important element of the approach to religion in the EU’s constitutional order is respect for freedom of religion and belief. This is notable for its individualistic approach to religious freedom and its commitment to the equality of religious and non-religious worldviews. These are characteristics that, as will be discussed later, are in tension with claims to exemptions from generally applicable rules seen in cases relating to indirect discrimination, which draw on the idea of religion as a form of collective identity. EU law protects the right to freedom of religion and belief in two ways. It does so indirectly in that religious freedom may be an indirect beneficiary of the market freedoms provided by EU law. This occurred in the Steymann case, in which the CJEU ruled that a German national living in a religious commune in the Netherlands was carrying out economic activity and could benefit from the free movement rights accorded to workers under EU law, notwithstanding that the work consisted of carrying out household chores and help with the community’s commercial activities, in return for which the community met his basic needs.22 Thus, Mr Steymann’s ability to follow through on his devotion to this religious community was enhanced by the economic rights provided by EU law. More directly, the EU is explicitly committed to the protection of the right to freedom of religion or belief as part of its broader commitment to upholding fundamental rights. This right is now explicitly recognized by Article 10 of the EU Charter of Fundamental Rights, which provides: Everyone has the right to freedom of thought, conscience and religion. This right includes the freedom to change religion or belief and freedom, either alone or in community with others and in public or private, to manifest religion or belief, in worship, teaching, practice and observance. The right to conscientious objection is recognized in accordance with the national laws governing the exercise of this right.23

Aside from the reference to conscientious objection, the text of Article 10 largely reproduces the text of Article 9 of the ECHR. The CJEU has repeatedly stated that the case law of the ECtHR is one of the major sources of the EU’s human rights norms, and the fact that the two articles are so similarly worded further reinforces the influence that ECtHR jurisprudence is likely to have on the approach of the CJEU.24

Case 197/87 [1988] ECR 6159. Charter of Fundamental Rights of the European Union, Article 10, OJ 364/1 18 December 2000. 24 McCrea, supra note 1, Chapter 4. 22 23

Religion in the constitutional order of the European Union  313 The ECtHR has a notably individualistic view of religious freedom, regarding it as ‘primarily a matter of individual thought and conscience’.25 This is not an ideologically neutral view of religion. It has been criticized for neglecting ritualistic elements of religion or the idea of religion as a communal identity rather than an individual choice. It is certainly a view of religion that is closer to Western Protestantism’s emphasis on belief and on an individual’s relationship with God. That said, the fact that the approach of the two courts to religious freedom stresses the importance of individual choice in religious matters is an inevitable result of the fact that the ECHR and the idea of individual human rights are not neutral ideas, but represent a decision to uphold liberal values and individual freedom. It is therefore unsurprising that the approach to religion in this context reflects liberal and individual autonomy focused ideas. The ECtHR is also committed to the equal protection of religious and non-religious worldviews, stating consistently that Article 9 ‘is also a precious asset for atheists, agnostics, sceptics and the unconcerned’, and recognizing beliefs that show sufficient ‘cogency, seriousness and importance’ as falling within the scope of Article 9.26 The CJEU has followed both of these elements of the ECtHR’s approach. In its first major ruling on religious freedom in Y and Z, the CJEU held that freedom of religion covered: The holding of theistic and non-theistic and atheistic beliefs, the participation in or abstention from, formal worship in private or public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief.27

In the same case – perhaps because it was dealing with a case involving asylum seekers from Pakistan, where atheists and apostates face such severe persecution – the CJEU explicitly recognized the importance of including non-religious beliefs and the right to abstain from religious practice under Article 10. As noted above, this approach is very much in line with the individualistic approach to religious freedom set out in the 2013 EU Guidelines on religious freedom. This approach is controversial. There is intense debate about whether religion ought to be regarded as ‘special’ in the sense of being entitled to greater protection than other forms of belief. This approach is also controversial, in that it is alleged that it is insufficiently protective of collective forms of religious freedom. However, the ECtHR has been increasingly protective of institutional religious freedom in recent times. It has consistently recognized that religious institutions are necessary in order to give meaning to the individual right to religious freedom that is the primary focus of Article 9. When faced with a clash between the rights of religious institutions and the rights of individual employees of such institutions, the ECtHR has always regarded religious freedom as including autonomy rights of such organizations, which must be balanced against the privacy and religious freedom rights of the employee. In this analysis, it has weighed factors such as the degree of violation of privacy suffered by the employee, the employee’s chances of obtaining alternative employment and the closeness of the job in question to the proclamatory mission of the religion in question. In recent cases the ECtHR has appeared to give greater weight to collective autonomy rights – most notably in Fernandez Martinez v

Ibid. McCrea, supra note 8. 27 Y and Z Judgment, supra note 9, at para 20. 25 26

314  Constitutions and religion Spain,28 where it upheld (albeit only on a nine-to-eight vote) a policy under which the public education authorities in a Spanish region were obliged to give effect to the decision of the local Catholic bishop to prevent the renewal of the contract of a teacher of religion in a state school. EU law also recognizes collective religious freedom and the autonomy rights of religious institutions. Given that the interpretation of Article 10 of the Charter of Fundamental Rights tracks the interpretation of Article 9 of the ECHR, it is likely that Article 10 will be read to include some right to religious institutional autonomy. However, this has proved to be an area where the CJEU has taken an approach that is at odds with the increasing emphasis on allowing states broad freedom to promote institutional religious freedom seen in ECtHR case law. EU legislation on discrimination in employment specifically addresses the reconciliation of the rights of religious institutions with those of their employees. As noted above, Article 17 of the Lisbon Treaty commits the EU to avoid interfering with the status of churches under national law. This commitment – coupled with recognition of the autonomy rights of religious institutions as a part of the right to religious freedom – underpins Article 4 of Directive 2000/7829 (the EU directive restricting discrimination in employment on various grounds, including religion, gender and sexual orientation). Article 4(1) allows religious employers to impose a discriminatory condition if such a condition reflects a ‘genuine and determining occupational requirement’,30 thus permitting, for example, the Catholic Church to employ only male Catholics as priests. Where EU law may provide less scope than the ECHR for religious employers is in relation to employment for less clearly religious functions, such as a teacher in a religious school. Article 4(2) of the Directive provides that in relation to employment in organizations ‘based on religion or belief’, member states may retain existing laws under which discrimination on grounds of religion is allowed where this is ‘a genuine, legitimate and justified occupational requirement having regard to the organisation’s ethos’. This exception is, however, subject to the proviso that it must be implemented ‘taking account of Member States’ constitutional provisions and principles, as well as the general principles of [EU] law and should not justify discrimination on another ground’. In addition, Article 4 provides that: provided its provisions are otherwise complied with this Directive shall not prejudice the right of [religious employers] acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.31

The CJEU has taken a narrow approach to the degree of exemption that these provisions afford to religious employers. In Egenberger32 the CJEU found that the Directive was violated by German employment law, which allowed religious bodies to determine for themselves (subject only to plausibility review by the courts) whether their ethos required that a particular role be reserved to people of a particular faith. In this case, a non-religious woman challenged the reservation to Protestants of a post with the body associated with the German Protestant

[2014] ECHR 615. Directive 2000/78 establishing a general framework for equal treatment in employment and occupation OJ L 303, 2 December 2000. 30 Ibid, Article 4. 31 Ibid. 32 Supra note 6. See also Ronan McCrea, Salvation Outside the Church: The ECJ Rules on Religious Discrimination in Employment (18 April 2018), http://​eulawanalysis​.blogspot​.com/​2018/​04/​salvation​ -outside​-church​-ecj​-rules​-on​.html, last accessed May 19, 2020. 28 29

Religion in the constitutional order of the European Union  315 churches that involved writing a report on racism and international law in Germany. The CJEU found that the Directive merely codified the EU general principle of law prohibiting discrimination. It held that the protection of the right to an effective remedy under the EU Charter of Fundamental Rights required that acts of discrimination in employment be capable of being challenged in the courts. This meant that the insulation of the decision of a religious employer to make a particular role subject to a religious test from review by the courts was contrary to EU law.33 It went on to hold that the Directive’s aim was a ‘fair balance’ between the autonomy rights of religious organizations and the right of workers to be free from discrimination. Any discriminatory policy, the CJEU held, had to be shown to be ‘genuine, legitimate and justified, having regard to [the] ethos [of the religious employer]’. For the CJEU, this meant that discriminatory policies must be shown to be objectively necessary for ‘the manifestation of that ethos or the exercise by the church or organisation of its right of autonomy’.34 This was a more restrictive approach to religious autonomy than that taken by the German courts to date, and the CJEU made it clear that the national court was under an obligation to adapt this case law to comply with EU law.35 The CJEU took a similar approach to the Directive’s exemption (mentioned above) allowing the imposition of a duty of loyalty on the part of employees to the ethos of their employer. This duty had the potential to be very wide-ranging, as it could potentially apply to any employee (eg, a teacher in a religious school or caretaker in a religious hospital whose personal life violated religious teachings). However, in IR v JQ36 the CJEU took a narrow approach to the scope of the exemption. In this case, a Catholic hospital had fired its director of internal medicine on the grounds that he had divorced and remarried and, as a Catholic, he had a higher duty of loyalty to his employer’s ethos. The court reiterated its commitment to the need for all discriminatory actions (including application of a higher duty on co-religionists) to be subject to a proportionality test and strongly suggested to the national court (which was responsible for applying the ruling to the facts) that applying a duty of loyalty to a medical post was likely to be disproportionate.37 Although in this case the issue was discriminatory application of a loyalty requirement, the consistent endorsement by the CJEU of the importance of proportionality means that it is likely that all loyalty requirements will have to satisfy a proportionality test. Under such an approach, a situation such as that upheld by the ECtHR in Fernandez Martinez – where the local authorities were obliged to give effect to the decision of the local bishop to terminate the employment of a religion teacher in a state school – would be unlikely to stand, as a proportionality test would require careful balancing of the right of religious autonomy against the employee’s rights to privacy, freedom of religion and freedom of expression. EU law, therefore, seems to provide somewhat less scope for collective religious freedom than that which the ECHR permits signatory states to grant to religious employers.

35 36 37 33 34

Supra note 6, at paras 49 and 53–59. Ibid, at paras 61–69. Ibid, at para 72. IR v JQ Case C-68/17 Judgment of 11 September 2018 (Grand Chamber). Ibid, at paras 49–54 and para 58.

316  Constitutions and religion

4. DISCRIMINATION Finally, the approach of the EU’s constitutional order to religion has important consequences for discrimination law, both in relation to claims by religious individuals of a right to discriminate and in relation to the right to be free of indirect discrimination on grounds of one’s religion. By adopting an individualistic approach to religious freedom, which gives equal protection to non-religious beliefs, EU law (and the ECHR) make it very difficult for individuals to claim exemptions from compliance with non-discrimination rules on the basis of religious freedom. After all, if all belief systems must be treated equally, and if freedom of religion and belief entitle a person not to comply with anti-discrimination rules, then anyone with a deeply felt conscientious objection to complying with such rules could claim an exemption. This would risk defeating the very object of anti-discrimination rules; so it is unsurprising that the ECtHR turned down claims that failure to allow two Christians to discriminate against LGBT people violated Article 9 of the ECHR.38 Given that non-discrimination is a general principle of EU law, it is likely that a similar claim before the CJEU would also fail. I have already noted that EU law provides some, albeit limited, scope for religious institutions to discriminate in order to uphold their ethos. EU law also covers discrimination against religious individuals, and in 2017 the CJEU gave its first major ruling on the interpretation of the prohibition on discrimination in employment on grounds of religion in two cases relating to workplace policies preventing the wearing of the Islamic headscarf at work. The two cases had slightly different facts. Both came under the Article 267 procedure, which allows national courts to stay proceedings to seek a ruling on how EU law should be interpreted by the CJEU which, once its ruling has been given, returns the case to the national court. In Achbita,39 a woman had been fired for her failure to comply with a workplace rule prohibiting the wearing of any religious or political symbols while at work. In Bouganoui,40 the employee had been dismissed for failing to comply with a demand from her employer to remove her headscarf following the request of a client of the employer, to whose office Ms Bouganoui had been posted, that there be ‘no headscarf next time’. In both cases the CJEU was asked whether the employers’ rules were directly or indirectly discriminatory (Directive 2000/78 allows indirect discrimination to be justified if proportionate and necessary, but permits direct discrimination only where there is a genuine and determining occupational requirement). The contrasting preliminary rulings given by the advocate general in each case show the degree to which the EU’s approach to freedom of religion raises serious issues for the law of religious discrimination. In her opinion in Achbita,41 Advocate General Kokott characterized religion as a matter of belief and ideology, thereby distinguishing it from other protected characteristics such as gender or race. She noted that the ban in question covered all religious and political signs, and that:

See Eweida and Others v United Kingdom [2013] ECHR 37. Case C-157/15 Achbita Centrum voor Gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions (Judgment of 14 March 2017, Grand Chamber). 40 Case C-188/15 Bouganoui and Association de défense des droits de l’homme (ADDH) v Micropole Univers (Judgment of 14 March 2017, Grand Chamber). 41 Achbita, supra note 39, opinion of Kokott AG. 38 39

Religion in the constitutional order of the European Union  317 That requirement of neutrality affects a religious employee in exactly the same way that it affects a confirmed atheist who expresses his anti-religious stance in a clearly visible manner by the way he dresses, or a politically active employee who professes his allegiance to his preferred political party or particular policies through the clothes that he wears (such as symbols, pins or slogans on his shirt, T-shirt or headwear).42

Thus, a distinction could be made between ‘immutable physical features or personal characteristics – such as gender, age or sexual orientation – rather than with modes of conduct based on a subjective decision or conviction, such as the wearing or not of a head covering at issue here’.43 This is a view in line with the Union’s approach to religious freedom, in that it treats religious and non-religious beliefs equally. Advocate General Sharpston’s Opinion44 in Bouganoui, on the other hand, characterized religion as a form of identity, akin to race or gender, stating that: to someone who is an observant member of a faith, religious identity is an integral part of that person’s very being. The requirements of one’s faith – its discipline and the rules that it lays down for conducting one’s life – are not elements that are to be applied when outside work (say, in the evenings and during weekends for those who are in an office job) but that can politely be discarded during working hours. Of course, depending on the particular rules of the religion in question and the particular individual’s level of observance, this or that element may be non-compulsory for that individual and therefore negotiable. But it would be entirely wrong to suppose that, whereas one’s sex and skin colour accompany one everywhere, somehow one’s religion does not.45

As I wrote at the time: As with many debates in relation to law and religion, one has the slight impression that two Advocates General are talking at cross-purposes. The problems that arise in regulating religious expression at work is that religion is both a set of ideological beliefs and a form of identity. This makes things particularly difficult. If one views religion as a set of beliefs, this often calls out for treatment which is entirely contrary to the treatment that would be appropriate if religion were regarded as a form of belief. If one views religion as immutable identity then refusing to allow someone to wear a headscarf or crucifix when dealing with the public is akin to refusing to allow a worker with brown skin from serving customers. On the other hand, if one views religion as a form of ideology and belief, then refusing to allow a worker wearing a religious symbol from serving customers is no less justifiable than refusing permission to a worker to wear a Labour Party/Les Republicains/British National Party/ Jobbik/ badge while at work. Often, there simply is no way to treat religion that does justice to its belief and identity elements at the same time.46

The law on indirect discrimination seeks to remedy the disadvantage that arises when people with a particular characteristic face structural (or ‘particular’) disadvantages in society, nor Ibid, at para 52. Ibid, at para 45. 44 Bouganoui, supra note 40, opinion of Sharpston AG. 45 Ibid, at para 118. 46 Ronan McCrea, Religious Discrimination in the Workplace: Which Approach Should the CJEU Follow? (13 July 2016), http://​eulawanalysis​.blogspot​.co​.uk/​2016/​07/​religious​-discrimination​-in​ -workplace​.html, last accessed May 19, 2020. 42 43

318  Constitutions and religion mally arising from the fact that a dominant group (eg, males or Christians in most European states) will have influenced societal rules and structures to a greater degree. For example, in majority Christian societies, dress codes, holiday times and broader social norms will have been significantly influenced by Christianity (eg, Sunday as the day of rest), thus placing those who belong to minority religions at a particular disadvantage. Rules against indirect discrimination focus on remedying this group disadvantage. The aim is not to ensure that each individual has the same degree of protection for his or her individual choices, but to give additional protection to make up for the fact that some groups of people suffer additional disadvantage on account of a socially salient characteristic that they share. Thus, the law on indirect discrimination has usually required those making a claim to show that they are part of a disadvantaged group. Solitary disadvantage has been seen as insufficient. There is a clear tension between this approach and the EU’s commitment to an individualistic view of religious freedom, which gives each individual the same degree of freedom to hold and express his or her religious beliefs and identity. On this view, which is reflected in Advocate General Kokott’s opinion, we all have beliefs and those beliefs may clash with the requirements of one’s job. Therefore, merely showing that a workplace rule clashes with one’s religious identity in some way shows no particular (in the sense of additional or unusual) disadvantage. It is only if we regard members of religious minorities as being particularly disadvantaged (because their faith has not influenced social norms to the same degree as the majority faith) that we can regard an individual who, for example, wishes to wear a headscarf at work in violation of the usual uniform code as having established a claim of particular disadvantage that would entitle him or her to an exemption from a rule that others are required to follow. However, such a right to extra accommodation of one’s faith rubs up against the deep commitment of EU law to treating individuals equally and avoiding discrimination between different types of beliefs. After all, if the law is to require an employer to allow an employee to wear an item that shows her to be Muslim, why should her colleague not be allowed to wear an item that shows her to be an atheist? The result of this tension was twofold. First, in its final ruling on the two cases, the CJEU gave relatively minimalist rulings. It held that a policy that targeted only the symbols of one faith (‘no headscarf next time’) was directly discriminatory and furthermore, such a rule could not be seen as a genuine and determining occupational requirement (only such requirements can justify direct discrimination).47 Second, it held that a genuinely comprehensive ban on all forms of religious or political symbolic statements was indirectly discriminatory and could potentially be justified by the economic needs of the employer.48 Thus, we can see that the Union’s deep commitment to an individualistic and egalitarian (in the sense of not discriminating between religious and non-religious forms of belief) is exercising a significant influence on the way in which the CJEU is interpreting anti-discrimination law as it relates to religion.

Achbita and Bouganoui, supra notes 39 and 40. Ibid.

47 48

Religion in the constitutional order of the European Union  319

5. CONCLUSION The EU has its own distinctive approach to religion, which is largely individualistic and egalitarian (in the sense of not discriminating between religious and non-religious worldviews). It is also an approach that requires a degree of separation between religious and political authority (what the Commission has termed ‘democratic secularism’), and which sees liberal human rights norms as providing an absolute limit on the degree to which religious norms can be enforced by the state. On the other hand, the Union’s approach also shows a significant commitment to the autonomy of its member states in matters of religion. EU law allows the role of religion in the member states to be accommodated within the EU legal order by providing scope for religious norms to influence law by reconfiguring such religious influence as an element of a broader public policy exemption that member states can invoke to limit the operation of EU legal rules. In this, it parallels most secular democracies. Secularism could never remove all religious influence from society, but rather ensures that religious norms cannot per se form the basis of law, thus keeping the political system open to the participation of religious minorities, which can contribute to the formation of national culture over time in a way that they cannot contribute to the internal theological debates of a particular faith. This accommodation is significant and allows, for example, the maintenance of laws restricting Sunday trading despite the EU law right to freedom to provides services. However, the case law hints that there are limits to this accommodation, and that an attempt to enforce a purely or largely religiously based public policy exemption may violate EU law. The European Union’s legal order is reluctant to be used as a tool through which national settlements in relation to the relationship between religion, state and law are overturned or radically reconfigured. Like the ECtHR, it has generally refused to intervene in a dramatic fashion so as to declare fundamental building blocks of such relationships at national level, such as recognition of state churches or restrictions on religious symbols in public contexts in secular states, to be violations of European law. Given their limited democratic legitimacy, attempts by European institutions to carry out such fundamental change would provoke a constitutional crisis. What EU institutions have done is to ‘nibble at the edges’, ensuring that national arrangements are implemented in ways that respect EU legal norms. For example, in Egenberger and IR v JQ the CJEU found that member states could permit religious employers to discriminate to maintain their ethos, but required that such discrimination pass a proportionality test and that it be possible to meaningfully contest such discrimination before the courts. Similarly, in Achbita and in Bouganoui, the CJEU found that bans on religious symbols at work could be justified, but at the same time required that such bans be comprehensive in nature. Thus, it distinguished between the situations of a ban on all symbols (Achbita) and the targeting of the symbol of one faith (Bouganoui). Some would have liked the CJEU to have gone further. However, the reality is that no one in Europe can be certain about which is the best way to manage increasing religious diversity. Some in France feel that they would be in a better situation if they had taken a more multicultural approach that allows more religious expression in shared contexts; many in the United Kingdom feel that they would be better off if they had been a little less multicultural and had followed approaches that emphasize integration and discretion on the part of all about religious identity in shared institutions. The story of religion and law in Europe over the past 25 years has been one of utterly unpredictable developments. No one in 1985, for example, would have believed you if you had said that 20 years later, blasphemous cartoons would be a key

320  Constitutions and religion issue in Danish politics. In these circumstances it would be very brave indeed for the judges of an international court sitting in Luxembourg to decide that they know best and to impose a single approach on all 28 EU states. On the other hand, in an era when arguments about secularism or gender equality are sometimes cynically used by those, such as the National Rally in France, that see them as a means to target particular groups, we can see the EU law as making a valuable difference. By insisting that bans on religious symbols can be justified only if part of a genuinely systematic and generally applicable prohibition on the display of visible symbols of all kinds of religious, philosophical or political belief, the CJEU has sought to ensure that the often justifiable desire to curtail expression of controversial beliefs in the workplace cannot be used as a means to selectively target unpopular minorities.49 Therefore, the rulings in Achbita and Bouganoui can be seen as encapsulating the approach of the EU to religion in a nutshell. They show a legal order that is keen to treat religion and irreligion equally, but also to enforce common European norms against discrimination to some degree. However, this enforcement happens in a way that shows appropriate doubt about the Union’s ability to identify or enforce an ideal ‘one size fits all’ solution, and which therefore gives significant scope for member states to follow their own path in the sensitive matter of the relationship between religion, state and law.

49 See Ronan McCrea, Faith at Work: The CJEU’s Headscarf Rulings (17 March 2017), http://​ eulawanalysis​.blogspot​.co​.uk/​2017/​03/​faith​-at​-work​-cjeus​-headscarf​-rulings​.html, last accessed May 19, 2020. For a contrary view on these rulings, see Eleanor Spaventa, What is the Point of Minimum Harmonization of Fundamental Rights? Some Further Reflections on the Achbita Case (21 March 2017), http://​eulawanalysis​.blogspot​.co​.uk/​2017/​03/​what​-is​-point​-of​-minimum​-harmonization​.html, last accessed May 19, 2020.

19. Religion and human rights Christopher McCrudden1

1. INTRODUCTION As societies modernize, we were told, they would lose the vestiges of public religion and ultimately become committed to secularism. Religion would continue to exist, but would become publicly marginalized, or ‘privatized’, and would increasingly be excluded from the public realm. ‘Secularization’ was the term coined to capture this process. The idea that modernization leads inevitably to secularization is clearly false. Several societies that have modernized have deepened, rather than ditched, their commitments to religious identification – Malaysia, for example. Societies in the West have also seen a growth in religious pluralism, where a plethora of new religious groups compete with each other and with older-established world religions. And religion has increasingly been deeply embedded in what has been described as the clash of civilizations. Instead of the expulsion of religion from the public space, there has been a resurgence of a type of religious sensibility that is exactly contrary to the predictions – one which seeks, as Jeffrey Haynes puts it, ‘the generalized “return” of religion to the public realm’; what he terms ‘[r]eligious deprivatization’.2 Theories of secularization were, however, correct in at least one major respect. The continuing role of religion in public life does give rise to tensions with key aspects of modernity, not least with some aspects of human rights. The tensions arising between resurgent religion and human rights cannot be considered a transitional issue. On the contrary, they are likely to increase and fester if not addressed. Religions are a problem for human rights and human rights are a problem for religions. And both, separately and together, are problems for the courts.

2.

SOME INITIAL CLARIFICATION

We are faced with several issues that I need to clarify at this initial stage of the argument: what I mean by ‘human rights’; what ‘judicial reasoning’ involves; the vexed question of what ‘religion’ encompasses; and the issues that are typically involved in tensions between religion and human rights.

This chapter is based on Part 1 of Christopher McCrudden, Litigating Religions: An Essay Human Rights, Courts, and Beliefs (2018). 2 Emphasis added, Jeffrey Haynes, Religious Transnational Actors and Soft Power 1 (2012). 1

on

321

322  Constitutions and religion 2.1

Human Rights

One approach to the question of what ‘human rights’ consist of is descriptive; the other is normative. A descriptive approach attempts to answer the question by describing, for example, how the term has come to be used and how it may have changed over time. Lawyers often say that human rights are those rights designated as such by law, whether domestic or international law. So, one response to the question of ‘What are human rights?’ is to say: ‘Look at the Universal Declaration of Human Rights,’3 or ‘Look at the International Covenant on Civil and Political Rights.’4 There is now a significant overlapping consensus between legal systems as to the specific rights that are in play when we speak of human rights. Thus, most human rights texts include the right to life; the right not to be tortured; the right not to be sold into slavery; the right not to be discriminated against; the right to have a private life; the right to freedom of conscience and religion; the right to freedom of expression; the right to marry; the right to be given a fair trial and so on. However, these texts are so open ended and drafted at such a high level of generality that the really hard questions of what they mean in practice are not at all clearly addressed, and we must (either explicitly or implicitly) adopt a normative approach to the meaning of human rights in order to interpret them. By a normative approach, I mean that there is some attempt by the interpreter to reason through to the position that a particular claim is a human rights claim, supported by a particular right included in a human rights text, from a prior normative position. In the seventeenth and eighteenth centuries, advocates of rights derived them from God or from what was ‘natural’. In our own day, there has been no shortage of claimed normative underpinnings of human rights. Some have argued that they derive from the concept of equal concern and respect; some from notions of distributive justice; some from ideas of what is necessary to satisfy basic social needs. Increasingly, it seems, the idea of ‘human dignity’ has become at least part of the basic normative discourse of human rights – an issue to which I shall return. Viewed in this way, human rights are not just legal norms. Human rights documents often incorporate concepts of justice, dignity and autonomy, which then inform the interpretation of the relatively open-ended legal provisions. Philosophy and political theory, for example, have a significant effect on some human rights law interpretation (and in turn have been affected by it; but that is a separate story for another time). Human rights law, therefore, is only relatively autonomous – although the degree of openness to ‘external’ human rights discourse varies significantly between jurisdictions. It would be a mistake to think that we now have anything close to a settled normative interpretation of human rights in the legal sphere. Indeed, in some ways, it is difficult to speak of the legal understanding of human rights, since there are several competing conceptions. There are significant ideological differences between courts in their understanding of human rights in general and their understanding of specific rights in particular. Comparative law scholarship consistently points to different meanings that are attributed to ‘human rights’ in different jurisdictions. (I include, under the rubric of ‘human rights’, domestic constitutional rights 3 Universal Declaration of Human Rights, General Assembly Resolution 217 A (III) of 10 December 1948. 4 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol 999, p 171.

Religion and human rights  323 protections and equivalent rights guaranteed by statute.) There are, for example, considerable differences between approaches to the idea of human rights in judicial reasoning in the United States and Europe.5 These differences in judicial reasoning are clear, for example, in the areas of abortion, hate speech, capital punish­ment, positive obligations on the state, extraterritoriality, the ability of non-citizens to secure protection and how to manage conflicts of rights, to mention just a few. 2.2 Religion Another key term is ‘religion’. Sociologists of religion tell us that the phenomenon of religion is difficult to pin down, in part because it appears to have several different facets or dimensions. The difficulty in pinning down the concept of religion – combined with the inherently controversial nature of religion when it comes into contact with the public sphere and the changing contours of these political controversies when courts address them – makes this area a continuing topic in litigation and the object of intense scholarly controversy. In this chapter, I shall be considering primarily the tensions between religions and human rights arising in the context of several of the main world religions whose ‘religious’ nature is unquestioned – the religions ‘of the book’: Islam, Christianity and Judaism. What are the different dimensions of religion that these religions have in common? The first dimension is that there is a set of beliefs held by a group of individuals, usually about issues of transcendent importance to believers. The second dimension, worth separating from the system of beliefs, is that a particular religion often promotes a set of values that, it is claimed, flows from the transcendent belief system. The third dimension is that this set of beliefs and values is manifested in some form of practice, sometimes in public, which brings together those who hold those beliefs. The fourth element is that these religions are institutional in some form or other, with a designated group with some degree of authority within that religion, which has responsibility for leading religious practices and sometimes for ensuring an element of doctrinal orthodoxy. The fifth element is that religion often becomes, independent of belief, a social status – a badge of identity, similar in some ways to other forms of identity, such as ethnic or cultural identity. 2.3 Tensions There are three broad areas in which tensions arise between human rights and religion. The first includes what in the United States would be termed ‘free exercise’ and ‘establishment’ issues (protected by the First Amendment to the US Constitution);6 what in Europe involves clashing understandings of ‘freedom of religion’ (protected by Article 9 of the European Convention on Human Rights (ECHR)).7 But, second, it also includes issues that would be considered ‘equal protection’ issues in the United States arising under the Fourteenth Amendment to the US

5 Reasoning Rights: Comparative Judicial Engagement (Liora Lazarus, Christopher McCrudden, and Nigel Bowles eds, 2016). 6 United States of America: Constitution, 17 September 1787. 7 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos 11 and 14, 4 November 1950, ETS 5.

324  Constitutions and religion Constitution; anti-discrimination issues in Europe, where the claim is for protection against religious discrimination (often arising under Article 14 of the ECHR). Essentially, the issues consist of disputes over three ideas: (1) how far the state should be able to curtail the right of individuals to practise their religion; (2) how far the state should itself adopt or embrace any particular religion or (more controversially) religion in general, in a way that elevates that religion or religion in general to other than a symbolically special position; and (3) whether the state (and in some circumstances other private parties, such as employers) should be permitted to discriminate between religions or treat individuals less favourably on the basis of their religious beliefs. More technically, and adopting the language of the US Constitution, we find protections for the ‘free exercise’ of religion (the first idea), counterbalanced by ‘non-establishment’ of religion (the second idea), found in the First Amendment. It is through these constitutional provisions that religious issues are primarily considered. The First Amendment has been regarded as incorporating an element of non-discrimination (the third idea) within the meaning of ‘free exercise’ and ‘non-establishment’. As a result, the equal protection clause of the Fourteenth Amendment has rarely been called on to support a religious discrimination claim, because it has not been perceived as necessary, given the First Amendment. At the US statutory level, the third idea (non-discrimination on grounds of religion) is developed further – in particular, in Title VII of the federal Civil Rights Act 1964,8 which prohibits religious discrimination, but only in the employment context. It is clear that the approach taken to the interpretation of Title VII in this respect is mostly dominated by the approach taken in the First Amendment. What is noteworthy about Title VII’s approach to religion, however, is the requirement of ‘reasonable accommodation’ – a concept with which Europeans are much more familiar in the context of disability discrimination. It means, essentially, that employers are under a (relatively weak) obligation to ‘accommodate’ the religious practices of their employees where this is ‘reasonable’. The relatively restrictive approach taken to the meaning of ‘reasonable accommodation’ in US litigation has meant, however, that the ‘reasonable accommodation’ approach has really taken off only when it transmigrated into Canada; it was adopted by the Canadian Supreme Court in its interpretation of the freedom of religion provisions of both the provincial anti-discrimination statutes and the Canadian Charter of Rights and Freedoms.9 These three elements (free exercise, non-establishment and non-discrimination) are also reflected, to a greater or lesser extent, in international and regional human rights treaties, which commonly incorporate a ‘freedom of religion’ protection (often interpreted as guaranteeing the freedom from being coerced into the practice of religion by the state) and an ‘anti-discrimination’ provision, guaranteeing the right not to be discriminated against by the state (sometimes only in particular situations) on a series of grounds, one of which is often ‘religious belief ’. Thus, for example, the ECHR protects ‘freedom of religion’ in Article 9 and ‘freedom from discrimination’ on the basis of religious beliefs in the exercise of other ECHR rights in Article 14. This tripartite set of provisions is now commonplace in several jurisdictions, such as Canada, the United Kingdom and South Africa, influenced by developments in the United Civil Rights Act of 1964 § 7, 42 USC § 2000e ff. (1964). Ontario (Human Rights Commission) v Simpsons-Sears Ltd, [1985] 2 SCR 536; Multani v Commission scolaire Marguerite‑Bourgeoys, [2006] 1 SCR 256. 8 9

Religion and human rights  325 States and international law. However, in particular jurisdictions, one or other of these three elements may be emphasized more than others. This can be seen in the way religion came to be protected in the development of EU law. The approach taken is one that provides an anti-discrimination remedy, but (at least until the EU Charter of Fundamental Rights)10 did not attempt to guarantee freedom of religion as such. And the obligation on member states to incorporate EU law into their national law has therefore meant that the anti-discrimination element in dealing with religious-secular relationships is now strongly present (at least formally) in EU member state laws.

3. IDEOLOGY In this and the following sections, I consider why tensions and conflicts have arisen between organized religions and the human rights system, and why so many of them seem to land up in courts. In brief, there are both ideological and institutional reasons in play. In this section, I shall be primarily concerned with the ideological aspects and in the next section with the institutional aspects – although I recognize that this distinction will seem too stark for some. Before considering ideological changes, we first need to appreciate the overlapping consensus that has emerged regarding how states now address religions legally, both in constitutions and in ordinary statutes. This consensus relates to the forms in which the discourse takes place, rather than to the application of these forms to particular conflicts. There is a second preliminary point of some importance: the degree of consensus surrounding the appropriate legal norms applying to the relationship between religion and human rights extends beyond law into the values that both systems adhere to. It would be misleading to ignore or take for granted the significant degree of convergence between religious teaching and the values that underpin secular human rights norms. Values such as liberty, equality, solidarity, autonomy and dignity are shared, at least at a high level of generality, even if applied differently. We shall be considering instances where there has been tension and conflict between organized religions and human rights over the interpretation and application of these and other values, and we shall have much to say about these tensions; but we should begin by making it clear that there is more of an overlapping ideological consensus than might be supposed by focusing only on disputes between religion and human rights. 3.1

Overlapping Consensus Between Religions and Human Rights

It may be useful to illustrate the general argument by drawing on the example of the Catholic Church. The human rights tradition sees the state as subject to positive obligations to protect the rights holder against others, whether they be state actors or not. The Catholic tradition is aligned with the human rights approach on this issue.11 There is a strong prefer­ence for a state whose duty it is to actively bring about the conditions under which rights are protected. In the terms we have just identified, there is a preference for positive obligations: ‘It is [...] demanded 10 European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02. 11 Pontifical Commission, ‘Iustitia et Pax’ (Justice and Peace), The Church and Human Rights, Working Paper no 1, 2nd edn, Vatican City, 2011, para 18.

326  Constitutions and religion by the common good,’ says Pacem in Terris, ‘that civil authorities should make earnest efforts to bring about a situation in which individual citizens can easily exercise their rights.’12 Like several of the most progressive national constitutions and international human rights law itself, the Catholic Church’s position – again reflected in Pacem in Terris – is straightforward: strongly in favour of an approach to human rights that incorporates socio-economic rights. Indeed, in several respects, Catholic social teaching outstrips what lawyers would consider is currently required by human rights law. In this context, the Catholic ‘preferential option for the poor’ has important practical implications for how these rights are to be protected. ‘Rights to be free from economic deprivation,’ writes Shupack when discussing the implications of the preferential option, ‘take precedence over some traditional autonomy rights. For example, rights to private property and free commerce are subordinated to the right of subsistence with dignity.’13 He continues: ‘Private property should be subject to the principle that it be used for the common good, thereby authorizing government to regulate, tax, and occasionally expropriate property on behalf of the poor.’ We should not, then, over-accentuate the tensions. In some particular respects, however, it is clear that religious and secular conceptions of human rights have diverged significantly, as we shall see subsequently. In these areas, human rights have become a central site of normative contestation over the implications of modernity, with both sides claiming to interpret human rights in the ‘right’ way. This is possible because of the contested nature of human rights standards and their sources of authority, as well as confusion as to whether there is a lexical ordering of the importance of particular human rights compared with others. Both sides see themselves as proponents of human rights, often claiming different human rights or different interpretations of the same right in support of their positions. So despite a relatively strong overlapping consensus in how the relationship between religion and the state should be structured, and a degree of consensus on human rights, principles and values between at least one major religion and human rights institutions, severe tensions are now evident. How did we get to this situation? Three ideological developments are of particular importance, and are discussed in the second part of this section. First, there have been significant developments in human rights doctrine that have resulted in religious practices coming more into conflict with human rights; second, there have been significant developments within particular religions that have resulted in more ‘fundamentalist’ approaches to religious doctrine being adopted; and third, religious issues have increasingly become of renewed geopolitical significance, in some ways replacing and in other ways exacerbating other ideological tensions. When these ‘ideological factors’ are set in a political context of significant migrations between countries of one religion and countries of another religion (or none), the stage is set for increased tensions and conflicts, including conflicts between religions and human rights.

12 Pacem in Terris: Peace On Earth; Encyclical Letter of His Holiness Pope John XXIII. Paulist Press, 1963, para 63. 13 Martin Shupack, The Churches and Human Rights: Catholic and Protestant Human Rights Views as Reflected in Church Statements, 6 Harvard Human Rights Journal 127, 132–33 (1993).

Religion and human rights  327 3.2

Changes in Human Rights Doctrine

We now turn to consider the ideological changes that I have suggested contribute to tensions between human rights and organized religions, beginning with the significant changes and developments in human rights doctrine that have increased this tension and opened up further opportunities for conflicts to arise. Two developments are of particular importance. First, with the increasing emphasis on racial and gender equality from the 1960s onwards, which morphed into a more general concern to enable individual identities to be valued and protected, equality discourse in the human rights context took on a strongly individualistic, autonomy-based, anti-essentialist and constructivist rhetoric – one which was at odds with that adopted by several organized religions. Of these, the anti-essentialist turn is the most interesting, in my view – especially when taken together with the constructivist approach. There are, of course, several different meanings that may be intended by the use of the term ‘essentialist’. I use it here to refer to the idea that ‘definitions are descriptions of the essential properties of things, and that one can evaluate attempts at definitions in terms of the falsity or truth of the descriptions given by them’.14 Essentialism is now most used in the social sciences as a description of a position that is regarded as outdated, a term of criticism rather than approbation. As Simon Blackburn explains: Essentialism is used in feminist writing of the view that females (or males) have an essential nature (e.g. nurturing and caring versus being aggressive and selfish), as opposed to differing by a variety of accidental or contingent features brought about by social forces.15

Often such ‘essentialism’ is seen as based on biological determinism. It is this understanding that anti-essentialism seeks to challenge, viewing roles as socially constructed and provisional. In particular, social identities are seen as socially constructed and changeable. Human rights discourse and, to a notable extent, human rights law have significantly (but by no means uniformly) adopted an anti-essentialist understanding of, for example, gender equality and sexual orientation. In contrast, as we shall see subsequently, several organized religions (perhaps particularly Catholicism and Islam) have anthropological understandings of the relationship between women and men, and understandings of gender and sexual orientation more generally, that are strongly essentialist. These are not the only significant changes in human rights doctrine that contribute to greater tensions between religion and human rights. A second development proved equally import­ant. Broadly speaking, international human rights law used to have relatively little to say, either pro or con, about many issues which had a religious dimension. This distance resulted from several different elements of the then-dominant interpretation of human rights: first, human rights primarily applied to actions by the state or state-sponsored bodies, not to non-state actors, such as many organized religions; second, human rights primarily imposed negative obligations on the state rather than positive obligations on the state to regulate others; third, human rights – at least as enforced – primarily related to the protection of civil and political rights, such as those found in the International Covenant on Civil and Political Rights,16 rather than those found in

Oxford Dictionary of Sociology (John Scott ed., 2014) (entry on ‘essentialism’, at 220). Simon Blackburn, entry on ‘essentialism’, in The Oxford Dictionary of Philosophy (2008). 16 International Covenant on Civil and Political Rights, supra note 4. 14 15

328  Constitutions and religion the International Covenant on Economic, Social and Cultural Rights17 (eg, the right to health, where controversial issues around contraception and abortion often arose); and fourth, there were ‘private’ areas such as sexual morality and intra-family relations that were regarded as inappropriate for international intervention and were considered firmly within the sphere of national sovereignty. The result was to leave large swathes of activity regarding women and sexual minorities, for example, unaddressed in international human rights discourse. Prior to the 1980s, international organizations, states and non-governmental organizations (NGOs) interpreted ‘human rights’ as substantially inapplicable to many ‘traditional’ practices which particularly impacted on women’s lives. Perhaps the best-known such issue was that relating to female genital cutting, which was long off-limits as an issue of international human rights concern. Since the 1980s, however, each of these elements in the dominant interpretation of human rights has been severely challenged: actions by non-state actors are increasingly seen, at least by NGOs, as included within the sphere of international human rights activism; positive obligations on states to ensure the adequate implementation of rights within their jurisdictions by all, including ‘private’ actors, have become commonplace in human rights discourse; socio-economic and cultural rights have attracted significantly greater enforcement attention than before; and international human rights actors now consider it legitimate for human rights norms to address issues in the ‘private’ sphere, and, indeed, to make them a central focus of their attention. As a result of these changes in human rights practice, women’s rights and the rights of marginalized sexual minorities increasingly came to dominate human rights discourse (at least in Western states and in international organizations). When these developments were combined with a noticeable reduction in the guilt that Western states felt over their former colonialism, ‘traditional’ religious practices came more into the firing line. Since then, there has been a persistent attempt by international and regional organizations with norm-creating human rights responsibilities to ensure that human rights standards trump conflicting ‘traditional’ practices in the global South, whether religious, cultural or customary. This has resulted in a plethora of texts and interpretative statements, as well as national judicial practice, reflecting this position, such as the United Nations Human Rights Committee Resolutions on child marriages and forced marriages, in which ‘traditional values’ were seen as undermining human rights standards.18 One of the best-known illustrations of the changes that these doctrinal developments contributed to is that relating to how female genital cutting is regarded in human rights law. From being an issue that few were willing to identify as a breach of human rights standards, it is now widely so regarded. 3.3

Debates Within Organized Religions

As well as changes in human rights doctrine, there have been significant shifts within organized religions, in some cases developing positions that are more antagonistic to some human

17 UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol 993, p 3. 18 UN Human Rights Commission Resolution 24/23, Strengthening Efforts to Prevent and Eliminate Child, Early and Forced Marriage: Challenges, Achievements, Best Practices and Implementation Gaps, A/HRC/24/2, 27 January 2014.

Religion and human rights  329 rights development than previously. Developments within the Catholic Church again illustrate the point. By the early 1960s there was a growing rapprochement between the church and the developing international human rights movement, culminating in Pacem in Terris.19 Since then, however, the church has been engaged in an intense continuing debate about how best to respond to such secular developments in human rights. Bernard Lonergan’s 1967 essay which considers the heated debates within the Catholic world at that time contrasts two modes of thinking about meaning: those characteristic of ‘classical’ and ‘modern’ culture respectively. The former is ahistorical and essentialist, secure in having clear and accepted meaning; while the latter is more historical and inductive. He viewed Catholic moral theology as born in the former and by the mid-1960s confronted with the lat­ter world of meaning. Lonergan anticipated a split in Catholic theology in which ‘a scattered left’ developed, ‘captivated by now this, now that new development, exploring now this and now that new possibility’ in contrast with ‘a solid right that is determined to live in a world that no longer exists’.20 John Langan, although using the terms ‘revisionist’ and ‘anti-revisionist’,21 has suggested something similar to me, with ‘revisionist’ and ‘anti-revisionist’ being equivalent to Lonergan’s ‘modern’ and ‘classical’ respectively. The main factors making for revisionism are the importance of historical conscientiousness; the general theological awareness of the development of doctrine; a desire for a more culturally and psychologically sensitive pastoral practice; and the social distance between ecclesial authority and the profession of theology. The main factors making for anti-revisionism are an essentialist, legalistic and biologistic conception of natural law as developed in neo-scholasticism, with a strong emphasis on its immutability and universality; and the assertion of papal authority in moral matters since the mid-eighteenth century (in the First Vatican Council), with a preoccupation on infallibility and the irreversibility of church teaching. A major intellectual development took root in the late 1960s that contributed to opening up the perceived gap between the human rights movement and the Catholic Church. From the early 1960s, there was a sustained attempt to rethink and reformulate the foundations of ‘natural law’ in a way that grew from and was consistent with Thomist approaches. One of the most influential of these attempts was what came to be called ‘new natural law’ by its proponents and opponents.22 ‘New natural law’ – as articulated by a group around Germain Grisez and including John Finnis and Robert George – became in practice a controversial challenge to revisionist approaches within the church that were much more in tune with emerging human rights norms. ‘New natural law’ was seen by some elements of the church hierarchy – particularly in the United States – as supportive of the traditional elements of some of the existing magisterium and in turn to be supported and encouraged, particularly after the bitter controversy that arose within the church on the publication of Humanae Vitae, concerning contraception. The major difference between revisionism and anti-revisionism lay in their differing anthropological understanding. The result is a sharp dispute, within the church, over what is

Pacem in Terris, supra note 12. Bernard Lonergan, Dimensions of Meaning, in Collection: Papers by Bernard Lonergan, S.J. 252, 245 (Frederick E. Crowe ed., 1997). 21 John Langan, personal communication. 22 Nicholas Bamforth and David A.J. Richards, Patriarchal Religion, Sexuality, and Gender: A Critique of New Natural Law (2008). 19 20

330  Constitutions and religion required to ensure human flourishing. Both approaches appeal to human dignity,23 but there is sharp disagreement as to what human dignity requires. Sometimes, a revisionist understanding of dignity is evident – particularly in the social teaching of the magisterium; sometimes an anti-revisionist approach to dignity, more compatible with new natural law, is evident – particularly in some of the teaching of the magisterium in areas touching on gender and sexual orientation. When anti-revisionism is dominant, the likelihood of tensions with human rights norms is increased. There are several aspects of the Catholic conception of human rights that are out of sympathy with the current interpretations of human rights. As Zachary Calo has written, a ‘distinctive [Catholic] understanding of rights theory’ has evolved, which ‘has both incorporated the insights of liberalism while nevertheless remaining at tension with it in several fundamental respects’.24 The period of rapprochement between the two, evident during the papacy of John XXIII (reflected in Pacem in Terris),25 and the papacy of John Paul II (regarding the need for freedom and democracy in Central and Eastern Europe), now seems under severe challenge. The church’s approach to the role of women, issues of sexual orientation, contraception, abortion, genetic manipulation and physician assisted suicide, to name but a few current issues, increasingly appears to conflict with emerging human rights norms in these areas. The church’s official practice towards human rights also appears to manifest a deep unease. One example must suffice. The Holy See’s record in ratifying human rights instruments is, to put it bluntly, abysmal, putting it somewhere on the level of Zimbabwe and Saudi Arabia in terms of the number of major human rights treaties not ratified, and just below the United States. The rhetoric of support for the Universal Declaration on Human Rights simply doesn’t translate into willingness to be bound in international law. The Holy See has ratified the Convention on Race Discrimination,26 the Torture Convention27 and the Convention on the Rights of the Child.28 But, as of June 2020, the Holy See had not ratified the International Covenant on Civil and Political Rights,29 the International Covenant on Economic, Social and Cultural Rights,30 the Convention on the Elimination of all Forms of Discrimination Against Women31 or the Convention on the Rights of Persons with Disabilities.32 Many countries ratify

23 Different authors within ‘new natural law’ place somewhat different emphases on the importance and centrality of ‘dignity’ to their enterprise. Contrast John Finnis, Aquinas: Moral, Political and Legal Theory 176–80 (1998) with Patrick Lee and Robert George, The Nature and Basis of Human Dignity, 21 Ratio Juris 173 (2008). 24 Zachary R. Calo, Catholic Social Thought, Political Liberalism, and the Idea of Human Rights, 1 Journal of Christian Legal Thought 1–13 (2011). 25 Pacem in Terris, supra note 12. 26 UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations, Treaty Series, vol 660, p 195. 27 UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol 1465, p 85. 28 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol 1577, p 3. 29 International Covenant on Civil and Political Rights, supra note 4. 30 International Covenant on Economic, Social and Cultural Rights, supra note 17. 31 UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol 1249, p 13. 32 UN General Assembly, Convention on the Rights of Persons with Disabilities, 13 December 2006, A/RES/61/106, Annex I.

Religion and human rights  331 these conventions while at the same time entering reservations on particular issues. This is also open to the Holy See. For the Holy See not to ratify these conventions at all cannot be justified simply on the basis that a particular provision causes difficulties; that would be a reason to enter a reservation. No – the signal sent by non-ratification is unease about these Conventions as a whole and, to some extent at least, a desire to distance itself from aspects of the human rights system. 3.4

Religion as a Geopolitical Football

We see that there have been ideological changes within human rights and within particular religions, both of which have increased tensions between the two movements. We now turn to the third ideological development: when these tensions between human rights and religions are exploited for geopolitical ideological benefit. There are two particular examples that illustrate this trend. The most significant example involves tensions between Islam and the West. No other geopolitical conflict since the end of the Second World War, however important, has involved the relationship between religion and human rights quite so significantly. One example of this general point must suffice. Haynes recounts the attempt of the Organisation of Islamic Cooperation (OIC) to secure a binding UN resolution condemning ‘defamation of religions’.33 The issue was first raised in 199934 and over the next dozen years the OIC led the campaign. Over time, the measure – which was initially widely, albeit rather vaguely, supported by many UN members, including non-Muslim-majority countries – became highly controversial and no agreement was achievable. The issue developed into an increasingly polarized confrontation involving, on one side, the OIC, Muslim states and some Muslim faith-based organizations (FBOs), such as the Muslim World League. Opposing the pro-defamations of religion coalition was an alliance of Western states and non-state actors, including secular NGOs and FBOs. Both sides used human rights arguments to support their positions. Even before the events of 9/11, conflicts between Islamic values and, for example, the ECHR35 had resulted in considerable doubt being cast on the consistency of Sharia with (European) fundamental rights. Post-9/11, however, these issues have been considered in an even more unfavourable light – one where militant Islam is seen by some as posing a threat to national security as well as Enlightenment values in many Western states. The intensity of the debate and the apparent irresolvability of the disputes have contributed significantly to Islamic practices in several Western states, such as the way some Muslim women dress, coming before national and international adjudicatory bodies.36 Conflicts between religion and human rights have also been the focus of even broader geopolitical activism aimed at securing (or resisting, depending on your viewpoint) ideological hegemony. Attempts have been made by some states to reorient the interpretation of human rights principles in such a way as to make them more sympathetic to religious concerns. One

33 UN agreement on resolution condemning ‘defamation of religions’, see Jeffrey Haynes, Faith-based Organisations at the United Nations (EUI Working Paper RSCAS 2013/ 70, Robert Schuman Centre for Advanced Studies) 21–22 (2013). 34 Haynes, supra note 33, at 21. 35 European Convention on Human Rights, supra note 7. 36 For example, Şahin v Turkey (44774/ 98) (2007) 44 EHRR 5 (ECtHR).

332  Constitutions and religion extreme version of the expression of this approach is to be found in the speech by the Russian Orthodox Metropolitan Kirill to the Human Rights Council in March 2008.37 Metropolitan Kirill claimed that a close identity exists between the appeal of human rights and the central tenets of Christianity. Christianity, indeed, was seen as the origin of the values that are now expressed in human rights documents. He claimed that the development and implementation of human rights principles, such as human dignity, are increasingly diverging from their original grounding in religious values, as attempts are made to separate them from their origins, and religion is becoming marginalized and privatized. The influence of ‘extreme feministic views and homosexual attitudes’,38 together with the increasingly important role of a small group of experts and NGOs, means that the approach of those whose role it is to develop and interpret human rights norms increasingly diverges from the opinion of religious believers and the moral norms accepted by most people. Instead, he argued, the way in which human rights is interpreted should not privilege any particular national approach to the implementation of human rights, but should instead recognize that different nations have different experiences and different histories, which also need to be taken into account in the development of national human rights systems. Russia’s role in supporting this turn was not a given, since it had not previously seemed particularly attracted to such a strong sovereigntist position. Indeed, following the collapse of Communism and the adoption of reforms that embraced constitutional rights, there was a strong push for Russia to join the major international human rights regimes, including the Council of Europe and the ECHR. These were seen as indications of Russia’s acceptance of universal human rights after the dark days of Stalinist repression. Since that first flush of enthusiasm, however, Russia has seen much dirty linen being displayed before international and regional human rights bodies. This has resulted in a string of findings of human rights violations, particularly by the European Court of Human Rights (ECtHR). Coming at a time when Russia is strongly reasserting its national interests internationally and reinventing a narrative of national sovereignty, the external scrutiny and ‘interference’ of human rights bodies is perceived as threatening and unwelcome. Although these concerns covered the gamut of human rights issues, decisions of the ECtHR on issues touching on religion were particularly sensitive because of the increased importance of the Orthodox Church in Russia after the fall of Communism. Not only was the Russian government increasingly antagonistic to the trend of human rights interpretation at the regional and international level, the Russian Orthodox Church was also enthusiastic in its scepticism, particularly over issues concerning sexual morality, women’s rights and the family. The Lautsi case,39 in which Italy was required to defend the practice of displaying the crucifix in a public school before the ECtHR, was a key galvanizing moment. The Chamber decision holding the display to be contrary to the ECHR was overturned by the Grand Chamber after significant pressure from an ecumenical coalition of Christian churches, including the Orthodox Church – apparently demonstrating that public engagement and active participation in litigation could, on occasion, turn the secular human rights tide.

37 Metropolitan Kirill’s speech is to be found in Russian Orthodox Church, UN Human Rights Council 7th Session Geneva, Panel discussion on Human Rights and Intercultural Dialogue (18 March 2008) (official translation provided by the Russian Orthodox Church). 38 Ibid. 39 Lautsi v Italy (30814/06) (2012) 54 EHRR 3 (ECtHR).

Religion and human rights  333 Several recent resolutions of the UN Human Rights Council, proposed by Russia at the initiative of the Russian Orthodox Church, attempt to have the notion of ‘traditional values’ accepted into international human rights discourse, and indirectly into human rights interpretation by judges and others.40 They seek to have concepts at the heart of human rights law – in particular, ‘dignity’, ‘freedom’, and ‘responsibility’ – interpreted through the lens of ‘traditional values’, which is left undefined. Traditional values are seen, then, as the foundation for the pursuit of global human rights. The family, community, society and educational institutions are identified as having an important role in maintaining and passing on such traditional values. States are called on to strengthen their role through adopting adequate positive measures. Dignity is seen, in these resolutions, as having the potential to rebalance international human rights back towards the local and the indigenous, weakening the pull of a homogenizing, universal and liberal ideological agenda. In particular, as we have seen from the speech of Metropolitan Kirill, the aim is to reverse human rights developments in the area of gender and lesbian, gay, bisexual and trans (LGBT) rights. For Russia to be seen to be leading the charge against what is characterized as Western human rights imperialism strengthens its position as a leader in challenging Western ideology more broadly. 3.5

Migration and Changing Perceptions of Religious Diversity

The fourth development contributing to tensions – increased migration flows – is not strictly an ideological development; but it is a significant part of the ideological story. The ideological conflicts discussed up to this point become more salient due to migration. It is difficult to capture this development at a high level of generality because different countries have very different experiences. Nevertheless, in the European context, for example, resistance to migration – particularly from Muslim countries – has resulted in several religious or ‘ethnic’ practices that would be likely to have been accommodated under multiculturalism now being questioned on the basis of their perceived conflict, for example, with the principle of women’s equality. Most prominently, there have been several cases dealing with the wearing of Islamic dress and its acceptability in a society commitment to the principle of gender equality – not least, of course, in the ECtHR.41

4. INSTITUTIONS Mention of the ECtHR at the end of the last section leads us to the second major set of explanations as to why courts have come to be seen as attractive forums in which to address tensions between religion and secular human rights – namely, institutional developments. One development is the greater availability of courts with a human rights jurisdiction. A second factor is the growth of secular NGOs and parallel changes in organized religions’ organizational

40 For a detailed discussion, see Christopher McCrudden, Human Rights, Southern Voices, and “Traditional Values” at the United Nations, in Law’s Global and Theoretical Contexts: Essays in Honour of William Twining 38 (Upendra Baxi, Christopher McCrudden, and Abdul Paliwala eds, 2015). 41 For example, Şahin v Turkey (44774/98) (2007) 44 EHRR 5; SAS v France (43835/11) (2015) 60 EHRR 11.

334  Constitutions and religion forms and political organization, both of which have contributed to the increased prevalence of religious litigation domestically and transnationally. A third contributing development is the growth of intra-religious factionalism, involving claims that one group’s doctrinal position is the more authentic or authoritative expression of a particular organized religion than that of another within the same religion. State authorities are then put in the position of having to decide which group to engage with as the true representative of the organized religion and the courts are called in to adjudicate. 4.1

Availability of Courts

One of the most obvious features of the landscape of religious litigation has been the increasing number of courts that are now open to receiving and adjudicating disputes between human rights and religious beliefs. National courts adjudicating constitutional and fundamental rights have significantly increased in both number and importance since 1945, as more and more countries adopt constitutional courts with the power of judicial review. When we add the increased number of regional courts (eg, the ECtHR, the Court of Justice of the European Union, the Inter-American Court of Human Rights and the African Court of Human and Peoples’ Rights), we can see that the number of available forums has exponentially increased. It is clearly the case that to have religious litigation, there is a need for such courts which are open for business. But to focus simply on the increased number of courts is to miss another development which, if anything, has been more important in stimulating religious litigation: the gradual dominance of NGOs as important interlocutors in the formulation of public policy and the implementation of human rights. 4.2

Role of NGOs in Human Rights

NGOs now play a central role in human rights discourse and enforcement. At the national level in certain jurisdictions, NGOs – with and without a religious background or orientation – have long played an important political role in the development of human rights law relating to religion, such as in the United States. This particular organizational form is different from, and competes with other, earlier forms of organization – whether elite representation in legislatures, mass organizations or formal corporatist-style representation. As Sabine Lang puts it, the ‘NGO-ization’ of civil society ‘refers to the process by which social movements professionalize, institutionalize, and bureaucratize in vertically structured, policy-outcome-oriented organizations that focus on generating issue-specific and, to some degree, marketable expert knowledge or services’.42 Lang identifies the ‘pull’ to NGO-ize as created by various incentives, including legal-bureaucratic, economic and political factors. In their path-breaking work, Margaret Keck and Kathryn Sikkink defined ‘networks’ as ‘forms of organization characterized by voluntary, reciprocal, and horizontal patterns of communication and exchange’.43 One form of network they particularly emphasized was what they described as ‘transnational advocacy networks’, which they identified as including ‘those Sabine Lang, NGOs, Civil Society, and the Public Sphere 64 (2013). Margaret Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks International Politics 8 (1998). 42 43

in

Religion and human rights  335 relevant actors working internationally on an issue, who are bound together by shared values, a common discourse, and dense exchanges of information and services’. NGOs – defined by Benjamin Stachursky as ‘private, voluntary, nonprofit, nonviolent groups with formal institutional character and aiming at some form of social change’ – play a particularly important role in these networks.44 There is now extensive scholarly work demonstrating convincingly that transnational advocacy networks comprising NGOs have played a significant role in lobbying inter­nationally for human rights in general and influencing the content of particular international human rights covenants, both generally and as regards the protection of freedom of religion. More recently, in addition to national NGOs operating in their own jurisdiction and international NGOs operating internationally, we have seen the development of a new breed of transnational NGOs. These are often based in one jurisdiction and sometimes see themselves as interested in issues within that jurisdiction, but are increasingly intervening in jurisdictions other than their own. Organizations such as Human Rights Watch and Amnesty fall into this category. NGOs, perhaps rather peculiarly, have developed a significant degree of legitimacy and authority in several Western countries – although their legitimacy is increasingly questioned elsewhere. The United Nations provides an important source of inter­national legitimation – for example, through a process of awarding Economic and Social Council consultative status to an NGO. 4.3

Changes in Religions’ Organizational Forms and Political Organization

The relative success of NGOs and their use of litigation have led to a significant degree of emulation, sometimes in unexpected quarters. Institutionally focused studies of religion have begun to reverse ‘a long-standing trend in the social and political science literature to overlook the role of religious actors in the public sphere’,45 and have begun to examine the role that religious NGOs play. Julia Berger has defined these as: formal organizations whose identity and mission are self-consciously derived from the teachings of one or more religious or spiritual traditions and which operates on a non-profit, independent, voluntary basis to promote and realize collectively articulated ideas about the public good at the national or international level.46

New terms have been devised to describe NGOs whose mission is derived from the religious beliefs of their leaders, funders or staff, and various of them are in current use, such as ‘faith-based’, ‘religious’ or ‘spiritual’ NGOs. Jeffrey Haynes has studied the international and transnational activities of UN-focused FBOs and identified the recent significant increase in the number of such organizations, ‘now amounting to over 300 entities, around 10 per cent of the more than 3,000 non-state entities with institutionalized access to the UN via the Economic and Social Council’.47 There are many reasons for this growth. First, the secularization of the West – including the retreat from Benjamin Stachursky, The Promise and Perils of Transnationalization: NGO Activism Socialization of Women’s Human Rights in Egypt and Iran 46 (2013). 45 Julia Berger, Religious Nongovernmental Organizations: An Exploratory Analysis, 14 Voluntas: International Journal of Voluntary and Nonprofit Organizations 15, 17 (2003). 46 Berger, supra note 45, at 16. 47 Haynes, supra note 33, at 4. 44

and the

336  Constitutions and religion using ‘objective’ philosophical, moral and religious principles as a basis for political and legal reasoning – has created what religiously inclined activists consider to be a large void in public policy that they have attempted to fill by creating institutions and organizations that reflect these principles. A second factor appears to be the relative ease with which the formal status of NGO can be acquired. Not surprisingly, then, the number of religious and other NGOs has mushroomed. FBOs seem to matter, although we should not exaggerate their power or influence. Studies have mapped how FBOs play an increasingly important role in regional and international policymaking fora, such as in the United Nations, as well as in norm-creating contexts, such as in the negotiation of new legal and soft-law texts at the international and regional levels. Although there is no systematic study as yet, there is sufficient evidence derived from case studies of particular events to support a preliminary conclusion that these organizations affect policy outcomes on a sufficiently regular basis for them to be taken seriously at both the national and international levels of policy and norm development. There is, then, a marked trend towards the ‘NGO-ization’ of organized religions. Julia Berger suggests that the ‘need to connect to higher levels of decision-making and share information has led many religious organizations to seek formal recognition as “NGOs”’.48 4.4

Increased Prevalence of Domestic Religious Litigation

There is growing evidence that the legislative and political role of NGOs, both secular and religious, is now being supplemented by an additional role: the initiation and conduct of, or participation in, litigation at the domestic level and beyond. NGOs have learned well from secular human rights NGOs the power that courts have in generating interpretations of existing legal norms that support their policy positions, and have sought to expand their activities into regional and domestic litigation in order to secure such favourable interpretations. NGOs, in short, play a prominent role in religious litigation on both sides of human rights conflicts. At the national level, the NGOs involved in domestic litigation are a heterogeneous group. Some are local, while others are transnational. Some are ‘conservative’ in their approach to issues of law and religion, while others are ‘liberal’ (terms that will require some further explanation subsequently). Some are specialist NGOs, meaning that they concentrate on issues of law and religion – for example, to the exclusion of other human rights issues; while others are generalist, viewing law and religion issues as part (and possibly a relatively minor part) of the menu of issues with which they engage. Some are established on an ad hoc basis, simply focusing on the particular case or issue before the court, with no aim to be involved in the longer term; others have been involved in human rights issues for some considerable time. Some NGOs are significantly focused on litigation as their primary modus operandi; while others see litigation as only one of a menu of other techniques that may be used to secure their objectives. Although NGOs may also fulfil other less traditional roles in their dealings with courts, the formal role of NGOs in human rights litigation involving religious issues is evident in three ways: by taking cases in their own name; by financially supporting litigation taken by others or providing support in kind; and by intervening as an amicus curiae (or equivalent) in cases in

Berger, supra note 45, at 20.

48

Religion and human rights  337 which the NGO is not involved, either as a party itself or in direct support of one of the parties. This interest in litigation is neither surprising nor unique to the world of religious litigation. The United States provides one of the best-developed examples of NGO involvement in religious litigation. Litigation specifically by religious groups is not a new development in the United States. Much of the Free Exercise and Establishment Clause jurisprudence was prompted by active litigation by two minority religious groups: Seventh Day Adventists and Jehovah’s Witnesses. There has also been long-standing activity by groups that want greater separation of church and state, such as Americans United for Separation of Church and State. The present activity by NGOs differs in two respects from what has gone before: in the sheer number of groups now involved and in the broad swathe of social policy issues they now find themselves litigating. The involvement of NGOs in religious litigation appears to be growing, partly because the increasing number of NGOs requires each to set itself apart from others in a crowded field, and involvement in litigation may be a useful way of doing so. The growing involvement of such NGOs also has much to do with the increasing centrality of US courts in deciding hot-button issues in US political life – particularly those that involve contested issues of the relationship between law and morals. The United States has for some time experienced increasingly bitter political standoffs between ‘liberal’ and ‘conservative’ political forces; this has been particularly evident in controversies on issues such as abortion, same-sex marriage, healthcare, gun control, capital punishment, affirmative action, the treatment of immigrants, the issue of torture in the interrogation of suspected terrorists and the role of religion in public life, to name but a few of the more contentious issues. All of these issues have ended up before the federal judiciary. Two recent examples of the phenomenon of extensive NGO activity in religious litigation must suffice. In Lawrence v Texas,49 the case in which the US Supreme Court decided that state laws criminalizing sodomy were unconstitutional under federal law, 31 amicus briefs were submitted to the Supreme Court – some in favour of upholding the criminalization of sodomy as constitutional (16) and some against (15). In Hosanna Tabor v Equal Employment Opportunity Commission,50 the Supreme Court held in a unanimous decision that the Establishment and Free Exercise Clauses barred suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws. Twenty amicus briefs, many of them from NGOs supporting the application of the ministerial exception, were filed. There are at least three factors explaining the growing involvement in US courts of religious conservative NGOs. First, conservative religious groups have been increasingly willing to enter the political fray – a tendency which is characteristic of a more general trend among conservative groups in the United States – and litigation is often seen as a natural extension of political campaigning. Second, other groups with which religious groups share something of an overlapping set of concerns, such as conservative legal networks not involved in religiously related issues, have increasingly turned to the courts in pursuit of their goals and a degree of emulation may be identified. Third, and most importantly, religious groups consider that they have been forced into a litigious posture because secular NGOs (eg, the American Civil

Lawrence v Texas, 539 US 558 (2003) (US Supreme Court). Hosanna-Tabor Evangelical Lutheran Church and School v Equal Employment Opportunity Commission, 565 US 171 (2012) (US Supreme Court). 49 50

338  Constitutions and religion Liberties Union and Americans United for Separation of Church and State) have been effective in using litigation to pursue their agendas. Of these developments, the growth of a US ‘conservative’ legal network forms an essential backdrop to the development of a US ‘conservative’ religious legal network. Several recent studies have set out in convincing detail how groups have been established since the 1970s – and particularly during the Reagan and Bush presidencies – to counter the ability of ‘liberal’ legal groups to change the direction of US law in a more liberal direction, including in such areas as racial equality, personal privacy, women’s rights, criminal justice, voting reform and reproductive rights. Steven Teles has shown how, having failed to translate electoral victory (eg, the election of Ronald Reagan) into effective political change – in part because of the perceived liberal bias in the courts – foundations and groups promoting conservative ideas built a network designed to dislodge legal liberalism from US elite institutions, such as elite law schools and the judiciary.51 Conservative legal advocacy groups were established to emulate their liberal forebears, using similar tactics. A note of caution must be sounded, however. The broad-brush distinction drawn above between ‘liberal’ and ‘conservative’ is not particularly well chosen, and may well be misleading if the characterization is thought to indicate that interventions are intended to pursue a Republican or Democratic political agenda. It is, unfortunately, almost impossible not to use the liberal/conservative distinction, given how pervasive it is in current US political discourse; but many of those who advocate for religious freedom issues do not think they are pursuing a ‘conservative’ agenda. They view themselves as pro-religious freedom and pro-human rights in general. A better characterization, perhaps, is to view the controversies as ones within constitutional and human rights law, arising from the clash of human rights – especially the clash between freedom of religion, association and speech on the one hand (attracting ‘conservative’ support), and non-discrimination, equality or personal autonomy norms on the other (attracting ‘liberal’ support). In the context of this chapter, therefore, the terms ‘conservative’ and ‘liberal’ have specialized meanings, indicating broadly different orientations on which rights should have priority and how particular rights should be interpreted. Although there are few, if any, jurisdictions with so extensive a system of civil society organizations involved in religious litigation as in the United States, a similar trend appears to be emerging in several other countries. Courts and legal procedures outside the United States increasingly mirror the general welcome that NGOs are given in US courts. The pattern of activity will vary depending on several factors, such as differing cultural preferences for operating via NGOs, the extent to which litigation is central to political debate, the ease with which NGOs can identify relevant cases in which to intervene in a timely manner, and technical court rules determining access to courts by organizations. Indeed, NGOs originating in the US environment seek to have US understandings of how NGOs operate transplanted into their new local environment. Technical rules governing access – in particular, amicus curiae interventions – have been developed by US-based NGOs in several of their foreign interventions, to enable them to be given greater access than those foreign courts would usually accord. The involvement in religious litigation of NGOs at the domestic level in some other European jurisdictions, such as in the UK domestic context, is particularly apparent. Steven M. Teles, The Rise Law (2008).

51

of the

of the

Conservative Legal Movement: The Battle

for

Control

Religion and human rights  339 4.5

Transnational NGO Litigation

Religiously affiliated groups now use interventions in domestic courts to attempt to embed particular models of religious rights. But NGOs are increasingly also operating on a transnational basis, identifying litigation opportunities to promote their ideological positions wherever they occur, and this jurisdictional opportunism may carry them well outside their own jurisdictions. Again, this development mirrors an equivalent development in liberal NGOs. Religiously affiliated NGOs are attempting to get into the ‘intervention game’ that more secular NGOs have already made their own. Political science scholarship has long detailed how liberal human rights NGOs engage in extensive national and international activity in support of their ideals. Religiously affiliated NGOs are relative latecomers to this game, attempting to ‘catch up’ with the practices of secular NGOs in their national jurisdic­tions and taking advantage of globalization to tackle the secularizing effects of modernization in other jurisdictions as well. Three examples illustrate this development. First, the European Centre for Law and Justice (ECLJ), which was established as the European arm of the American Center for Law and Justice, has intervened in litigation before the Slovak Constitutional Court challenging a law permitting abortion up to 12 weeks, at the request of a pregnant woman.52 Second, the US-based groups Advocates International and the Alliance Defense Fund (ADF) were involved in supporting Pastor Åke Green in resisting criminal conviction in Sweden for a sermon that was allegedly homophobic. This support included submitting (apparently influential) amicus briefs to the Swedish Supreme Court on his behalf53 – an initiative that was joined by several other foreign interveners, including the Becket Fund, the Family Research Council, Focus on the Family, the (Canadian) Christian Legal Fellowship and the (British) Jubilee Campaign. Third, in Romania, when the Constitutional Court was petitioned to validate a referendum seeking to constitutionalize a ban on same-sex marriage, the ADF filed a brief supporting a local NGO (the Alliance of Romania’s Families, modelled on equivalent US NGOs). The brief argued that the proposed amendment was constitutional, drawing in part on EU law. This was countered by a brief from another local NGO, ACCEPT, also with overseas backing, citing international standards as prohibiting the proposed amendment. The well-known ‘culture wars’ clash in the United States between civil society actors, borrowing from the German expression for the dispute between Bismarck and the Catholic Church in the nineteenth century, has now gone transnational. US conservative groups (including faith-based NGOs) have begun to emulate strategies earlier developed by liberal groups and NGOs now face off against each other politically across the globe. Many of the same protagonists – particularly NGOs that find themselves pitted against each other in US courts – now find new litigation opportunities abroad in which to fight their battles against each other. As Bob has observed: ‘most global issues involve not just a single “progressive” movement promoting a cause, but also rivals fighting it.’54 ‘Global civil society,’ he continues,

52 European Centre for Law and Justice, Interest of Amici Curiae, Submitted to the Constitutional Court of the Slovak Republic, PL ÚS 12/ 01. The court upheld the law as constitutional, PL ÚS 12/01, No. 1/2007. 53 For discussions of the Swedish Supreme Court case and the Romanian Constitutional Court case mentioned later in this paragraph, see Clifford Bob, The Global Right Wing and the Clash of World Politics 86–89, 100–01 (2012). 54 Bob, supra note 53, at 2.

340  Constitutions and religion ‘is not a harmonious field of like-minded NGOs. It is a contentious arena riven by fundamental differences crisscrossing national and international boundaries.’ Interventions by NGOs in transnational religious litigation appear to be on the increase, due to a combination of political and legal reasons. One reason is that human rights NGOs have frequently adopted an understanding of constitutional and human rights that is universalist and cosmopolitan, which has the effect of encouraging a view that violations of rights in one country are as much the NGO’s business as violations in any other country. A second reason is an acceptance of the fact that globalization means that what happens in another country may well directly or indirectly affect developments in the NGO’s own country – a favourable decision in one jurisdiction may ‘cascade’,55 influencing developments in other jurisdictions and then globally. A third element in the story is that one way of appealing to their domestic audience is for domestic NGOs to intervene in litigation in foreign courts against policies and practices that are particularly unpopular in the NGO’s home jurisdiction. Regional human rights courts, in particular the ECtHR, have proved particularly important forums for these purposes, and a similar pattern of NGO participation in religious litigation to that seen in domestic litigation has been apparent in these courts for some time and on similar issues. In the Lautsi litigation before the ECtHR,56 for example, in which the ECtHR considered whether Italian public schools could display the crucifix despite objections by a parent, leave to intervene was given to several NGOs. As well as expressing their views on issues of religious freedom, interveners in cases before the ECtHR have been particularly prominent in cases concerning abortion and sexual orientation. In A, B and C v Ireland,57 considering Ireland’s ban on abortion, numerous third-party submissions were received. In X v Austria,58 a case claiming the right of same-sex couples to adopt, joint third-party comments were received on behalf of six NGOs. Third-party comments were also received from (among others) the ECLJ (which also intervened in Lautsi), and the ADF, now renamed Alliance Defending Freedom, which had each been given leave to intervene in the written procedure. It is a noticeable feature of religious transnational litigation that it is, in the main, US conservative NGOs which are at the forefront of this development – a phenomenon that warrants a brief explanation. After Lawrence,59 the ECtHR became a particular target for interventions. The largest group of NGOs active before the ECtHR is based in the United Kingdom; but the second largest group of NGOs comes from the United States, including several that are law school clinics and a significant proportion of which are religious conservative groups. In the ECtHR, the ECLJ and the ADF are particularly evident; but the Becket Fund, American United for Life, the International Center for Law and Religion Studies of Brigham Young University and the Family Research Council have all intervened at one time or another. Their involvement abroad is linked to the split between conservative and liberal justices on the US Supreme Court concerning the utility, persuasiveness and appropriateness of relying on foreign precedents. In Lawrence, over strident dissents, the majority opinion of the US Supreme Court partially relied on ECtHR jurisprudence to find unconstitutional the

55 The word is derived from Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions are Changing World Politics (2011). 56 Lautsi v Italy (30814/ 06) (2012) 54 EHRR 3 (ECtHR). 57 A, B, C v Ireland (25579/05) (2011) 53 EHRR 13 (ECtHR). 58 X v Austria (19010/ 07) (2013) 57 EHRR 14 (ECtHR). 59 Lawrence v Texas, 539 US 558 (2003) (US Supreme Court).

Religion and human rights  341 criminalization of sodomy under state law. Since Lawrence, US-based conservative NGOs see European decisions as potentially undermining their position in US courts. Some US NGOs thus litigate in Europe partly in the hope of staving off decisions that may come back to haunt them when similar issues are litigated in the United States. Bob quotes the chief counsel of ADF, Benjamin Bull: ‘We’re forced to do it, because if we don’t, we’re going to lose according to rules of a game we never created.’60 As Bob puts it, their objectives are pre-emptively to forge ‘overseas law into something less dangerous, more ambiguous, or downright helpful’. Interventions seem partly to be based on the idea that, following Lawrence, one way of instantiating a particular model of accommodation with resurgent religion in the United States is therefore to ensure ‘favourable’ decisions by the ECtHR. It is noteworthy that the ECLJ was established by the American Center for Law and Justice precisely to establish such precedents in the ECtHR. It is not alone. When the ADF was granted permission to intervene in the Eweida case in the ECtHR, one of the cases joined with Ladele,61 its president and general counsel described it to supporters as a ‘remarkable opportunity [...] to stand in defense of religious freedom [...] in cases that – if they are decided the wrong way – could have a negative impact on your religious liberty here in the United States’.62 Interventions by transnational NGOs have, so far, been relatively uncontroversial in the European context. Where such interventions occur outside Europe, however, this has proved more controversial, because it has raised accusations of neo-colonialism that feature much less prominently in the European context. A common pattern of NGO involvement appears to be evolving. Initially, local progressive groups become involved in a particular jurisdiction to reform an aspect of domestic policy or practice, often using the local courts as part of their reform strategy. These efforts are frequently supported by arguments drawing on inter­national law and precedents from other jurisdictions, as well as material and other support from progressive human rights groups outside the jurisdiction. This, in turn, results in those opposing these changes arguing not only that those advocating change are wrong in principle, but also that such changes come about only as a result of objectionable outside interference. The current controversy surrounding the criminalization of sodomy is a prime example. Although not entirely restricted to states with a history of British colonial rule, these states have frequently resorted to criminalization. At least since the decision of the ECtHR in Dudgeon,63 attempting to have such crimes struck down has become an important aspect of the work of groups campaigning in favour of gay rights, often using international law to argue that such legislation is illegitimate. A good example of this is the successful campaign to ensure that the Inter-American Court of Human Rights would decide that criminalization was contrary to the Inter-American Convention on Human Rights.64 This case attracted interventions from influential lawyers drawing on European human rights law, which the Inter-American Court largely adopted. In India, a similar strategy also led initially to a successful outcome for gay rights campaigners, with the Delhi High Court holding that criminalizing sodomy was

Bob, supra note 53, at 83. Eweida v United Kingdom (48420/10) (2013) 57 EHRR 8 (ECtHR). 62 Alan E. Sears, ADF Granted Right to Defend Four Crucial Cases, www​.adflegal​.org/​blog/​adf​ -granted​-right​-defend​-four​-crucial​-cases, last accessed June 3, 2020. 63 Dudgeon v United Kingdom, App No 7525/ 76, [1981] ECHR 5 (1982) 4 EHRR 149 (ECtHR). 64 Atala Riffo v Chile, Inter-Am Ct Hum Rts, 24 February 2012 (Merits). 60 61

342  Constitutions and religion contrary to the Indian Constitution, only to see that judgment itself overturned by the Indian Supreme Court, which in turn was overturned by a later decision of the same court.65 These actions have, however, led to a counter-reaction – based partly on opposition to change on the basis of principle, but also objecting to what local conservative groups have characterized as a transnational attempt to undermine domestic decisions on issues of morality that are more appropriately left to national decision-making processes. We thus see in several countries attempts to restrict the activities of NGOs, particularly foreign-based NGOs, operating in this field. Another effect, however, is that – partly in reaction to the intervention by liberal transnational NGOs – conservative religious groups, many from the United States, not infrequently support local conservative forces. Having lost the constitutional battle at home to preserve the criminalization of sodomy in Lawrence,66 these US conservative religious groups have turned their attention to other places where equivalent issues are under consideration. This has resulted in interventions at the legislative and policy levels in several developing countries – most controversially in Uganda, where US-based conservatives have been criticized as partly responsible for the backlash against the NGOs that led to the passage of the legislation restricting foreign NGOs. There is often, therefore, significant foreign support for local actors on both sides of religiously engaged litigation. We thus increasingly see a standoff occurring between local progressive actors and local conservative groups, but also between transnational progressive and transnational conservative groups. Conservative and liberal transnational NGOs faced each other in the Caribbean, for example – particularly in Orozco v Attorney General of Belize,67 in which the Human Dignity Trust, the International Commission of Jurists and the Commonwealth Lawyers Association supported a local gay rights activist, Caleb Orozco, the head of United Belize Advocacy Movement, in challenging the constitutionality of the Belize Criminal Code, which criminalizes consensual sexual conduct between adults of the same sex. The case had potential importance beyond Belize, as similar laws were under scrutiny across the Commonwealth Caribbean. They were opposed by a coalition named Church Interested Parties, which included the local Catholic Church in Belize, the Belize Church of England Corporate Body and the local Evangelical Association of Churches. In addition, a local umbrella group, Belize Action, supported the existing law. The issue of outside interventions (on both sides) has been mired in controversy, with criticisms of the Human Dignity Trust for appearing to take over the Orozco case. On the other side, the Southern Poverty Law Center reported that Belize Action was partly funded by the ADF, a US-based religious NGO – a report that a US pastor associated with Belize Action denied, while accepting that the ADF had provided advice, legal assistance and strategic advice.

65 Naz Foundation v Government of NCT of Delhi, 2 July 2009 (High Court of Delhi); Suresh Kumar Koushal and others v Naz Foundation and others, 11 December 2013 (Supreme Court of India); Navtej Singh Johar & Ors v Union of India, WP (Crl) No 76 of 2016 (Supreme Court of India). 66 Lawrence v Texas, 539 US 558 (2003) (US Supreme Court). 67 Orozco v Attorney General of Belize (Belize Supreme Court, 10 August 2016): for discussion, see Heidi Beirich, Dangerous Liaisons: The American Religious Right and the Criminalization of Homosexuality in Belize (Southern Poverty Law Center, 2013); William G. Ysaguirre, Belize Action Not US Funded—Pastor Stirm, Reporter Newspaper (5 August 2013).

Religion and human rights  343 4.6

Intra-Religious (Legal) Factionalism

The final institutional development concerns the fracturing of churches. The issue of factionalism within organized religions, and the extent to which such disputes should be aired in public, is as old as many organized religions themselves and remains a fruitful source of religious litigation. Faith-based organizations that associate themselves with a particular religion (sometimes even to the extent of including the name of the religion in its title) end up on opposing sides, whether on policy issues, treaty negotiations or litigation, with both sides claiming to speak authentically for the religion. Increasingly, too, the disputing factions are labelled externally (and sometimes internally) in secular political terms. Berger, for example, suggests that ‘One of the characteristics of present-day denominations is the growing gap separating “liberal” and “conservative” believers’.68 Haynes has noted how: like other sorts of actors at the UN, [FBOs] can be either “conservative” or “liberal”, and their stance on the issues [...] is linked to an ideological view of the world rather than the result of religious characteristics per se.69

Barnett and Stein have even suggested that NGOs nominally identifying with the same religious tradition may have more ideological variation between themselves than there is between religious and secular NGOs.70 The most studied recent example of the phenomenon is that of the Catholic Church’s standoff with Catholics for Choice,71 but the debate over this marginal organization masks the bigger issue. We have already seen that there are significant debates within Catholicism over human rights. Given the differences between ‘revisionist’ and ‘anti-revisionist’ approaches, it is not surprising that Catholic understandings of the role of women and of the behaviour of the LGBT community, as reflected in the writing of Catholic theologians, reflect a considerably greater plurality of viewpoints than those outside the church sometimes appear to recognize. In the case of Islamic law, too, various different and conflicting messages are sent, depending on which texts are cited, with texts of the Qur’an and Sunna of the Medina period contrasting with the texts of the Qur’an of the Mecca period. This opens up the opportunity for internal dialogue within both the Catholic and Islamic traditions. ‘Liberal’ and ‘conservative’ Muslim groups, for example, were found on both sides of the move to secure UN agreement on a resolution condemning ‘defamation of religions’ discussed earlier, which was seen at the time as a critical test of Islamic influence. As we have seen, the resolution was supported by a group of Muslim states, the OIC and several Muslim FBOs. However, in a high-profile intervention, 186 NGOs signed a petition in March 2009 opposing the resolution. This group included several ‘liberal’ Muslim NGOs, including the Muslim Council of Canada, the Ahmadiyya Muslim Community, Muslims against Sharia, the Council of ex-Muslims of Britain, the Coalition for Defence of Human Rights in the Muslim World, the American Islamic Congress and the American Islamic Forum for Democracy. There are Berger, supra note 45, at 26. Haynes, supra note 33, at 11. 70 Michael Barnett and Janet Gross Stein, Sacred Aid: Faith and Humanitarianism 23 (2012). 71 See, for example, Kelsy Kretschmer, Contested Loyalties: Dissident Identity Organizations, Institutions, and Social Movements, 52 Sociological Perspectives 433–54 (2009). 68 69

344  Constitutions and religion several concrete examples that illustrate the phenomenon in action in the domestic context also. In Canada, there was a high-profile dispute over whether a provincial government should establish Sharia tribunals to which Muslims could voluntarily submit civil disputes, with the finding of the tribunal being given legal weight.72 The proposal was supported by the Canadian Islamic Congress (CIC), but opposed by the Muslim Canadian Congress (MCC) and the Canadian Council of Muslim Women, leading to a very public dispute between the MCC and the CIC, with the latter accusing those Muslims who criticized Sharia of ‘publicly deriding their religion, badmouthing the Prophet, ridiculing the Qur’an and mounting uninformed crusades to smear their Islamic Law, the Shariah’. For the purposes of my argument, however, the important point is that this intra-religious factionalism has also contributed to religious issues being brought to courts; not infrequently, one or other side in the internal dispute has resorted to litigation. Such disputes often involve claims by the disputing parties that their position is the more authentic or authoritative expression of the religion to which both claim adherence. As a result, a central area of controversy in the relationship between state law and organized religion on occasion is how state authorities are to decide with whom to engage when there is a dispute as to who represents the organized religion. The state must choose; but how are state authorities to decide what the beliefs of an organized religion are, where this is contested within the religion itself? These disputes have arisen when, for example, there is a schism in a church and the court is asked to decide between the two groups, such as was the case in several nineteenth-century disputes in Scotland when the Church of Scotland split.73 It may arise when two or more parts of the organized religion compete over questions of who can be a ‘member’ of the religion, such as the long-running dispute between Orthodox and Reform Judaism over who can be a Jew.74 State authorities, and particularly the courts, are increasingly faced with a dilemma in these situations: on the one hand, there is a strong incentive for these authorities to remain ‘neutral’, to avoid getting involved in what are seen as internal disputes within the religion and not appropriately subject to secular authority; on the other, liberal societies have increasingly sought to inculcate particular human rights norms in their communities, and these norms (eg, women’s equality or avoiding discrimination on the basis of sexual orientation) frequently run up against the practices and beliefs of organized religions, whether Christian, Muslim or Jewish. Both positions are supported by human rights arguments and sometimes by organizations that claim to represent opposing understandings of that religion.

5. CONCLUSION In this chapter, I have suggested that three ideological developments are of particular importance in accounting for the growth of religious litigation. First, there have been significant developments in human rights doctrine that have resulted in religious practices coming more into conflict with human rights. Second, there have been significant developments within particular religions that have resulted in more ‘fundamentalist’ approaches to doctrine being [Toronto] Globe and Mail, 26 October 2005. Lord Rodger of Earlsferry Rodger, The Courts, the Church Aspects of the Disruption of 1842 (2008). 74 For example, R(E) v Governing Body of JFS [2009] UKSC 15. 72 73

and the

Constitution:

Religion and human rights  345 adopted. Third, religious issues have increasingly become of renewed geopolitical significance, in some ways replacing, in others exacerbating other ideological tensions. When these ‘ideological factors’ are set in a political context of significant migrations between countries of one religion and countries of another religion (or none), the stage is set for increased tensions and conflicts, including conflicts between religions and human rights. I suggested, second, that courts have come to be seen as attractive forums in which to address tensions between religion and secular human rights. There are several reasons. One reason is the greater availability of courts with a human rights jurisdiction. A second factor is the growth of secular NGOs and parallel changes in organized religions’ organizational forms and political organization, both of which have contributed to the increased prevalence of religious litigation domestically and transnationally. A third contributing factor is the growth of intra-religious factionalism, involving claims that one group’s doctrinal position is the more authentic or authoritative expression of a particular organized religion than that of another group within the same religion. State authorities are then put in the position of having to decide which group to engage with as the true representative of the organized religion and the courts are called in to adjudicate. The tensions between religion and human rights are set to continue and, if anything, to increase in intensity and complexity.

PART V CHALLENGES AND CONTROVERSIES

20. Gender justice and religious freedom in the post-secular age Susanna Mancini and Elena L. Cohen1

1.

RELIGION, SECULARISM AND GENDER

All religious systems are gendered. Religions also strongly impact gender relations and contribute to shaping gender roles. Many religions are deeply rooted in patriarchy. As systems of belief, however, religions are not the sole, or necessarily the primary, determinant of women’s subjugation. Because religions are interpreted by humans, all religions have the potential to be egalitarian as well as to be patriarchal.2 In this respect, it is crucial to disentangle the cultural/political and the theological/ethical dimensions of religion. Patriarchal rules result from the interpretation of the holy texts that prevailed in a given time and space, under given cultural and political influxes, rather than from the actual letter of the texts. For example, as feminist theologian Leyla Ahmed explains, women enjoyed a high position in early Islamic societies, while androcentrism and misogyny became prevalent in subsequent interpretations.3 Moreover, many oppressive practices commonly associated with Islam – such as child marriage and polygamy – were rooted in patriarchal social relations that pre-existed Islam,4 have never been exclusive of Muslim societies and are far from universal within them. The spiritual and political dimensions of religion must also be separated. Even within illiberal patriarchal religious communities, religion can provide women with ‘ethical identities and spiritual positions that create spaces for women to practice their own agency and forms of power’.5 Said differently, religion can be empowering for women who choose to listen to its egalitarian ethical force, even in contexts that prioritize androcentric interpretations and applications of religious law. As Nira Yuval-Davies explains, one should also bear in mind that women constitute the majority of the active members of religious institutions, which ‘allows [them] a legitimate place in a public sphere that otherwise might be blocked to them, and that in certain circumstances they might be able to subvert for their purposes’. For example, ‘in Britain young women claiming a “pure Islamic” identity, shorn of the impurity of the “backward custom” of

1 Elena L. Cohen would like to thank Micah Prussack for her invaluable assistance in preparing this chapter for publication. 2 Renaud Fabbri, Feminism, Muslim Theology and Religious Pluralism: Interview with Nayla Tabbara and Jerusha Lamptey, 1 Religions: A Scholarly Journal 37, 40 (2016). 3 Leyla Ahmed, Women and Gender in Islam (1992). 4 John L. Esposito, Women’s Rights in Islam, 14 (2) Islamic Studies 99 (1975). 5 Sophie Biörk James, Gender and Religion in Oxford Bibliographies  in Anthropology (John Jackson ed, 2019).

347

348  Constitutions and religion their parents, have mobilized religion to support their assertion of their right not to be forced into marriage’.6 Religion may also empower women by emphasizing their traditional role as ‘bearers of the nation’. In Bosnia, for instance: Hijabi Bosniak Muslim women [...] serve as markers of the internal and external boundaries of the Bosniak nation. They are considered “true believers” and “keepers of morality” among Muslims, and form clear boundaries between Muslims and non-Muslims through wearing the hijab and the code of conduct (haya’) that accompanies it. Yet, they are engaged and participate actively in the social and cultural life of [Bosnia and Herzegovina].7

Furthermore, women mobilize against traditional androcentrism within patriarchal religious institutions. At the 2019 Synod of Bishops for the Amazon, a Brazilian nun openly articulated the disconnect between women’s factual and official role in the Catholic Church. ‘In Brazil, most Catechists are women, the leaders of local communities are women, women animate the liturgical aspects of the Mass, through song and celebration, these women bring the ministry forward,’ she said. ‘They are very important, but they are not visible because they don’t have institutional recognition.’8 Women also increasingly engage in theological interpretation, challenging the monopoly of androcentric exegesis and dismantling or, as Asma Barlas puts it, ‘un-reading’9 patriarchal interpretations of religion ‘that are frequently presented as the word of God, and thus as indisputable’.10 Women theologians play an invaluable role in terms of promoting equality, as they ‘are able to chart the manner in which authority has been constructed throughout the tradition and the manner in which diverse contexts shaped ideas of authority’.11 As these brief observations suggest, there is no such thing as a universal women’s experience across religious and secular worldviews.12 In this light, ascertaining what constitutes a conflict between the right to religious freedom and women’s equality any easy or readily made answer. In 1998, political theorist Susan Okin launched the debate in her article ‘Is Multiculturalism Bad for Women?’,13 where she took the position that, in Western democracies rendered culturally and religiously diverse by globalization and mass-scale migration, accommodating minority cultures risks jeopardizing women’s equality. Over the years, this debate has been progressively enriched thanks to a burgeoning and interdisciplinary literature. This intervening literature has highlighted the centrality of gender in cultural encounters and

6 Nira Yuval-Davis, Religion and Gender in Contemporary Political Projects of Belonging, in Religion, Gender, and the Public Sphere 36 (Niamh Reilly and Stacey Scriver eds, 2018). 7 Zilka Spahić Šiljak, Nation, Religion, and Gender, in Politicization of Religion, the Power of Symbolism: The Case of Former Yugoslavia and its Successor States 187 (Gorgana Ognjenović and Jasna Jozelić eds, 2014). 8 Elisabetta Povoledo, A Bigger Role for Women in the Catholic Church? 185 Men Will Decide, NY Times, 25 October 2019. 9 Asma Barlas, Believing Women in Islam: Unreading Patriarchal Interpretations of the Qur’an (2002). 10 Fabbri, supra note 2 at 42. 11 Id. 12 Id at 43. 13 Susan Moller Okin, Is Multiculturalism Bad For Women? in Is Multiculturalism Bad For Women? 7 (Joshua Cohen, Matthew Howard and Martha C. Nussbaum eds, 1999).

Gender justice and religious freedom in the post-secular age  349 the importance of gender power relations in all religious systems, as well as in the liberal public sphere. Many critical voices have questioned the assumed neutrality of the Western secular public sphere and have highlighted the structural limitations of liberalism in ensuring women’s equality. Indeed, liberalism and secularism are not less gendered than religious systems. Contrary to the conventional emancipatory narrative, secularization has not resulted in the emancipation of women. Indeed, modern citizenship is rooted in the exclusion of women from the political sphere and in their subjection to men in the family.14 Against the backdrop of the egalitarian philosophy of the Enlightenment, gender inequality is thus structurally part of the conceptualization of modern nation states, which developed historically through the construction of a rigid separation between private and public, female and male, and religion and reason.15 In the eighteenth and nineteenth centuries, secular, empirically based knowledge replaced religion and metaphysics and furnished the ground to reconcile the subordination of women – as well as of non-whites – with the egalitarian ideals of the Enlightenment. The scientific notions of gender superiority that emerged in medicine and anthropology ‘objectively’ justified the subjugation of women, just as scientific racism justified the discrimination of the colonized peoples. The rights that stemmed from the ideals of the Enlightenment were universal in principle, but ‘contingent to the capacity to reason, which was tied to notions of biological determinism’16 and to the existence of gender and racial hierarchies. As Eric Hobsbawm maintains, the existence of such objective hierarchies among human beings was essential to a ‘theoretically egalitarian bourgeois ideology since it passed the blame for visible human inequalities from society to nature’.17 Under conditions of secularism, however, religion did not disappear: rather, it became privatized – that is, confined to the sphere of domesticity, sexuality and reproduction. The public sphere was constructed as the space of freedom, equality and agency. Thus, privatizing religion made it possible, as Linell E. Cady and Tracy Fessenden put it, to ‘shift the burden of constraint agency to religious cultures’.18 This set the conditions for the feminization of religion.19 The gendering of religion entailed the construction of female religiosity, alongside female sexuality, as a threat to the rational character of the public sphere.20 For example, in Catholic countries such as Italy, secular progressive political forces have traditionally resisted women’s enfranchisement on the ground that this would have favoured religious parties, given women’s inclination to follow ‘the priest’s instructions’.21 The relegation of religion in the private sphere also facilitated the subjection of women, and of sexuality and reproduction,

Carol Pateman, The Sexual Contract (1988). Joan Wallach Scott, Sex and Secularism (2017). 16 Ratna Kapur, The Citizen and the Migrant: Postcolonial Anxieties, Law, and the Politics of Exclusion/Inclusion, 8 Theoretical Inquiries in Law 537, 541–54 (2007). 17 Eric Hobsbawm, Age of Empire 252 (1987). 18 Linell E. Cady and Tracy Fessenden, Gendering the Divide, in Religion, The Secular, and the Politics of Sexual Difference 3, 16 (Linell E. Cady and Tracy Fessenden eds, 2013). 19 Joan Wallach Scott, Secularism and Gender Equality, in Religion, The Secular, and the Politics of Sexual Difference 25, 28 (Linell E. Cady and Tracy Fessenden). 20 Id at 28. 21 Id. On the case of Italy, see Susanna Mancini, From the Struggle for Suffrage to the Construction of a Fragile Gender Citizenship: Italy 1861–2009, in The Struggle for Female Suffrage in Europe 373, 381, 384 (Blanca Rodriguez Ruiz and Ruth Rubio Marin eds, 2012). 14 15

350  Constitutions and religion to religious control. Thus, while secularization expelled (political) religion from the public sphere, it secured it a protected space within the private sphere – a space exempted from the application of democratic norms.22 The same pattern later applied in post-colonial settings, where the marginalization of religion went hand in hand with securing it a monopoly in regulating the private sphere.23 In the public sphere, the expulsion of religion resulted in its secularization and universalization, and thus its entanglement with liberal political theory. As Talal Asad explains, ‘[f]rom being a concrete set of practical rules attached to specific processes of power and knowledge, religion has come to be abstracted and universalized.’24 Secularized Christianity came to constitute the European nation states’ universal moral compound, to the advantage of a European imperialistic agenda. Indeed, while European nation states developed according to a pattern of gender inequality, in the colonies, egalitarian rhetoric, paired with arguments drawn from Christianity, recast as universal morality, was used to widen the civilization gap between an assumed Western egalitarian self and a despotic, misogynous Eastern other. Thus Lord Cromer, the founder and president of the English Men’s League for Opposing Women’s Suffrage, vehemently condemned how Islam treated women in his capacity as British consul general in Egypt at the end of the nineteenth century.25 Unlike Christianity, which elevated women, Cromer accused Islam of degrading them through practices of veiling and seclusion, which, as Leyla Ahmed maintains, constituted ‘the fatal obstacle’ to the Egyptian’s ‘attainment of that elevation of thought and character which should accompany the introduction of Western civilization’.26 In the nineteenth and twentieth centuries, Western missionaries often depicted Jesus as a liberator of women who broke out of the Jewish tradition in their efforts to convert local women, by equating the subordination of women in their native tradition with the inferiority of their religion.27 In sum, ‘secularism and Christianity are mutually implicated in the moral narrative of modernity’,28 which equates progress with individual emancipation while deploying its discriminatory application to women and racial minorities. The ideals of the Enlightenment ultimately provided the grounds to challenge its discriminatory applications. The exposure of the colonial elites to such ideals created the conditions for the emancipation and the modernization of the colonial states,29 and feminist theory struck a fatal blow to the conceptualization of the private/public divide, exposing its implication in upholding a gendered and exclusionary model of citizenship.30 In the 1970s, however, religions also began to test the boundaries of the public/private divide. As José Casanova famously maintained, a process of deprivatization occurred, whereby regions reclaimed a central role in the public sphere and, specifically, in the political

Cady and Fesseden, supra note 18, at 18. Saba Mahmood, Sexuality and Secularism, in Religion, The Secular, and Sexual Difference 47 (Linell E. Cady and Tracy Fessenden eds, 2013). 24 Talal Asad, Genealogies of Religion 42 (1992). 25 Ahmed, supra note 3, at 155. 26 Id, at 153. 27 Kwok Pui Lan, Post-Colonial Imagination and Feminist Theology 95 (2005). 28 Cady and Fessenden, supra note 18, at 14. 29 Hobsbawm, supra note 17, at 79. 30 Pateman, supra note 14. 22 23

the

Politics

of

Gender justice and religious freedom in the post-secular age  351 arena,31 as well as in international relations.32 This deprivatization of religion, paired with the increasing diversity of Western societies, has important repercussions for gender relations and for women’s rights. As minority religions have become increasingly visible and vocal in the Western public sphere, courts and legislatures have felt the need to address the gender dimension of religious and cultural rights. This has led to a proliferation of legislative measures and judicial cases regulating issues that exclusively pertain to minority women, such as religious marriage and divorce, genital cutting or the right to wear traditional religious clothing. The return of religion to the public sphere has also coincided with its taking an ultra-conservative or fundamentalist turn. For right-wing religious actors, ‘the control of women and the patriarchal family are [...] central to construction of social orders’.33 The religious right often joins forces with populists, advocating for isolationism, nationalism, demographic policies, anti-immigration measures and cultural protectionism. The current US administration under Donald Trump as president provides a salient example of this ideological campaign, by combining the dismantling of the mainstays of reproductive freedom with xenophobic and Islamophobic language and anti-immigration measures. The political success of fundamentalist and ultra-conservative religious actors has resulted in a global backlash for women’s rights. In the following sections, we address the gender implications of this deprivatization of religion. Section 2 focuses on the theoretical debate concerning the troubled partnership of multiculturalism and feminism. Section 3 analyses how different courts address conflicts between minority religions and gender equality. Finally, Section 4 moves on to the analysis of the impact of the rise of religious fundamentalism on women’s equality.

2.

CLASHES BETWEEN MINORITY RELIGIONS AND WOMEN’S RIGHTS?

Prior to the 1980s, minority groups were commonly expected to assimilate into majority cultures. Yet by the mid-1990s, this demand to assimilate had become seen as oppressive and a strong movement in favour of accommodating minority cultures and religions emerged.34 Prominent in support of multiculturalism was (and is) the Canadian political theorist Will Kymlicka. In brief, Kymlicka argued that group membership provides members with meaning in many activities in public and private spheres, and that these minority religious or ethnic groups should be protected by special rights, such that their culture/religion does not become extinct.35

José Casanova, Public Religions in the Modern World (1994). Daniel Philpott, Religious Freedom and the Undoing of the Westphalian State, 25 Michigan Journal of International Law 981 (2004). 33 Id. 34 Okin, supra note 13, at 9; Ayelet Shachar, Feminism and Multiculturalism: Mapping the Terrain in Multiculturalism and Political theory 115 (Anthony Simon Laden and David Owen eds., 2007). Much of the scholarship and jurisprudence discussed in this chapter are within the larger context of multiculturalism. While this chapter is concerned with religion, the sections below demonstrate that what differentiates religion from culture is often not clear in theory or practice. 35 Okin, supra note 13 at 9–11; Will Kymlicka, Multicultral citizenship: A Liberal Theory of Minority Rights (1995), 76, 89 and Will Kymlicka, Liberalism, Community, and Culture (1989). 31 32

352  Constitutions and religion The late 1990s saw a critique of multiculturalism, spurred by Susan Moller Okin’s piece, ‘Is Multiculturalism Bad for Women?’. As seen in the below discussion of Okin’s work, this early critique – mainly from a liberal feminist lens – revealed tensions between accommodating religious groups while also respecting women’s rights as members of the larger polity. These critiques showed how early multiculturalism did not sufficiently recognize intra-group violations, gendered power relations or the central role that women play in many minority groups because of their gendered responsibilities as conduits of culture.36 This section turns to the criticism of Okin’s work, including essentializing religion, undertheorizing women and gender, constructing gender equality as exclusively Western, and downplaying the importance of religion for many women, among other issues. The articles and responses spurred by Okin raise difficult questions, without readily apparent answers. Is the partnership of feminism and multiculturalism necessarily agonistic? In a culturally and religiously diverse world, what constitutes gender (in)equality? To what extent should democracies accommodate religions inimical to liberal gender equality? Should gender equality trump diversity? What legal remedies can we give to vulnerable group members? These dilemmas are further complicated by religious systems that have, or seek, a significant measure of self-governance, but do not accept liberal egalitarianism. However, as seen below, this debate is not confined to an analysis of the ‘conflicts’ generated by the anti-feminist and patriarchal nature of certain religions (and minority cultures). Instead, this debate seeks gender and religious connections in broader terms, taking into account liberalism’s own difficulties in granting full citizenship to women. 2.1

Multiculturalism as Bad for Women

Susan Moller Okin framed her focus as: ‘What should be done when the claims of minority cultures or religions clash with the norm of gender equality that is at least formally endorsed by liberal states?’ Okin argues that, contra to Kymlicka’s support of group rights, feminists should actually be cautious about group rights for minority cultures and religions in liberal states.37 Okin’s premise is that Western democracies have been too quick to assume: (1) that multiculturalism38 is a good thing; and (2) that rights for minority cultures and religions can be reconciled with feminism.39 This scepticism is warranted for Okin even in internally liberal minority groups.40 Okin is concerned that group rights can often be anti-feminist, within a context where men often control women and where men determine and articulate the group’s beliefs, practices and interests.41 These dangers to women posed by multiculturalism are

Shachar, supra note 34, at 115–16. Okin, supra note 13, at 9. 38 Okin defines the aspect of multiculturalism that her essay is engaged with as ‘the claim, made in the context of basically liberal democracies, that minority cultures or ways of life are not sufficiently protected by the practice of ensuring individual rights of their members, and as a consequence these should be protected through special group rights or privileges’. Id at 10–11. Examples of such privileges include being exempt from general laws, governing oneself and special political representation. Id at 11. 39 Okin defines ‘feminism’ as ‘the belief that women should not be disadvantaged by their sex, that they should be recognized as having human dignity equal to that of men, and that they should have the opportunity to live as fulfilling and as freely chosen lives as men can’. Id at 10. 40 Id at 11. 41 Id at 12. 36 37

Gender justice and religious freedom in the post-secular age  353 ignored by group rights advocates for two reasons: (1) such advocates fail to recognize how minority groups are gendered with more power for men than women; and (2) they do not focus enough attention on the private sphere of domestic and family life. Such a failure to look at the private sphere is a fatal flaw for advocates of group rights, because the central focus of most cultures’ and religions’ rules and practices is precisely this sexual and reproductive sphere, such that cultural and religious practices are much more likely to have effects on women than men. Okin cites to a variety of ‘personal laws’ that religions and cultures have had as primary concerns, all within this ‘private domain’ – including marriage, divorce, child custody, division/control of family property and inheritance.42 Okin also takes offence to group rights, because of her claim that ‘most cultures have as one of their principal aims the control of women by men’. 43 Citing to Judaism, Christianity and Islam (as well as Greek and Roman antiquity), Okin argues that the founding myths of all these cultures and religions are ‘rife with attempts to justify the control and subordination of women’.44 As such, many cultural and religious practices are ‘aimed at bringing women’s sexuality and reproductive capabilities under men’s control’ – to the point where it is nearly impossible for women in such cultures and religions to be able to live independent of men, be a lesbian or not have children.45 Okin believes this to be true to the extent that some cultures and traditions can be ‘virtually equated’ to control by men over women.46 Yet although virtually all of the world’s cultures have patriarchal pasts, Okin claims that mainly Western liberal cultures have moved furthest towards gender equality. Although sex discrimination and violence against women still exist in Western countries, ‘women in more liberal cultures are, at the same time, legally guaranteed many of the same freedoms and opportunities as men’.47 Therefore, because many cultural and religious minorities that claim group rights are more patriarchal than their surrounding cultures, group rights actually become about maintaining control over women.48 As such, allowing religious and cultural minorities exceptions from general laws or other accommodations will likely violate women’s rights to equal protection under the law.49 Kymlicka, and others in favour of multiculturalism, do not see this darker side of minority religious accommodation, because they lack this analysis of how cultural practices – especially in the private sphere – subordinate and control women.50 This leads Okin to conclude that any claimed group right should be based on ‘the degree to which each culture is patriarchal and its willingness to become less so’.51 Such an inquiry should focus on inequalities between sexes within a group and attempt to adequately represent

Id 12–13. Id. 44 Id at 13. 45 Id at 14. 46 Id at 16. 47 Id at 16–17. Okin adds that: ‘In addition, most families in [Western liberal] cultures, with the exception of some religious fundamentalists, do not communicate to their daughters that they are of less value than boys, that their lives are to be confined to domesticity and service to men and children, and that their sexuality is of value only in marriage, in the service of men, and for reproductive ends.’ Id at 17. 48 Id at 17. 49 Id at 20. 50 Id at 20. 51 Id at 20. 42 43

354  Constitutions and religion less powerful members (ie, women) within minority groups.52 Okin’s polemic concludes: ‘Unless women – and, more specifically, young women (since older women are often co-opted into reinforcing gender inequality) – are fully represented in negotiations about group rights, their interests may be harmed rather than promoted by the granting of such rights.’53 For cultures and religions that do not meet Okin’s test, they are better off becoming extinct than granted special rights that exacerbate gender inequality. 2.2

Women’s Rights and Religious Rights: Coexisting, Comprising and Converging

Criticism and defence of Okin’s diatribe against special rights for religious and cultural minorities were swift. The critiques took three main forms: (1) Okin’s view of Western people who love freedom and equality versus foreign others who have no respect for women; (2) Okin’s oversimplification of culture and religion; and (3) Okin’s view that women in minority groups are brainwashed or co-opted to the extent that they could not genuinely want to preserve their religion or culture.54 Several critiques focused on Okin’s treatment of non-Western cultures and minority religions as significantly (and irredeemably) more oppressive than Western and majority ones. Leti Volpp, for example, argued that Okin constructed a flawed construction of ‘feminism versus multiculturalism’. This false opposition constructs a minority religion migrant woman victim and is based on the belief that non-Western women are more subordinated than Western women. The result of this discourse is a denial of women’s agency, as well as the obscuring of the level of violence that women face in the United States.55 Joseph Raz noted that likely all Western cultures have some intolerance of their own members, as well as intolerance of dissent and blindness to the needs of many people. No culture would pass Okin’s test for toleration and freedom. Yet Westerners, like Okin, call for reform, and not destruction, of their cultures. Countries should treat all cultures alike in this regard: recognize and support the culture, while protecting its inhabitants from injustice. Yet Okin judges other cultures and religions harsher than her own, because she is more sensitive to context in her own culture.56 Indeed, because Okin does not sufficiently look to internal contestation within religions and cultures, or their history and context, she seems to believe that the resistance that changed gender norms in Western societies could not happen in minority cultures. In truth, internal contestation has led, and continues to lead, to reforms within many religions and cultures.57 As Homi K. Bhabha noted, although Okin attempted to pay attention to inter-group dynamics in her analysis, she ultimately produced a monolithic characterization of minority cultures.58 The norms of Western liberalism become the measure for all cultures and religions. The only

Id at 2. Id at 24. 54 Shachar, supra note 34 at 119. 55 Leti Volpp, Feminism versus Multiculturalism, 101 Colum L Rev1181 (2001). 56 Joseph Raz, How Perfect Should One Be? And Whose Culture Is? in Is Multiculturalism Bad For Women? 95, 95–100 (Joshua Cohen, Matthew Howard and Martha C. Nussbaum eds, 1999). 57 Shachar, supra note 34 at 120–22. 58 Homi K. Bhabha, Liberalism’s Sacred Cow in Is Multiculturalism Bad For Women? 79 (Joshua Cohen, Matthew Howard and Martha C. Nussbaum eds, 1999). 52 53

Gender justice and religious freedom in the post-secular age  355 failure of liberalism is that it does not perfectly practise its own (correct) tenets.59 Okin’s overgeneralization obscures the historical and contemporary reform and resistance occurring within groups – as well as the minority intellectuals and activists working in these areas.60 Others argued that the men and women from minority religions and cultures may all feel oppressed by dominant cultures and need validation of their own traditions and rules, apart from the culture or religion’s own gender dynamics.61 Will Kymlicka himself responded, arguing that his theories of multiculturalism are compatible with Okin’s charge to look at intragroup inequalities when deciding whether to grant group rights. Kymlicka does so by clarifying his two types of group rights. First are group rights that may be seen as ‘internal restrictions’, which restrict group members (especially women) from being able to question or change group practices. Kymlicka would not give group rights to these internal restrictions, because they violate a member’s autonomy and are not just.62 The second type of group rights, ‘external protections’, should be supported by liberal countries. These external protections are rights that a minority group can claim in the face of a larger society with greater economic and political power.63 Kymlicka believes this account works with Okin’s framework, as he suggests that internal restrictions (which would not be supported by the state) include those within the private sphere.64 For Kymlicka, fighting gender inequality within a group can and should happen while working against injustice between groups.65 This debate has been further problematized in recent works, which testify to a richer, more mature debate over the partnership of feminism and multiculturalism. Looking to how the concern over accommodating religious differences affects women is shared by both cultural insiders and external observers, Lisa Fishbayn Joffe draws from the anthropological observation that women in religions often represent the ‘natural’ or ‘authentic’ part of that religion, while men are allowed to grow and be responsive to change. As such, women’s behaviour is often more carefully controlled and monitored; while men are granted greater access to the public sphere. Because of this, women may actually follow more traditional lifestyles than men in the same cultures or religions, who take part in work outside the home and in politics. Through mothering, reproduction and educating the next generation, women are tied to the symbolic continuity of a religion in ways that men are not. As such, attempts to change women’s status can be seen as a threat to the continued existence of the religion altogether. This is especially true where concerns over women in religions are tied to ambivalence or hostility to the practices of the religious group. Right-wing nationalists and other opponents of multicultural policies often use alleged concerns for women’s treatment as part of their racist and exclusionary discourses, as we will see below when examining the Muslim headscarf debate. This also explains why the family – a nexus between the private and public – is often at the heart of disputes of women and multiculturalism. Joffe describes, and the cases in the next section below show, how although these family law disputes are characterized as ‘irrec-

Id at 80–81. Id at 81–83. 61 Saskia Sassen, Culture beyond Gender in Is Multiculturalism Bad For Women? 76 (Joshua Cohen, Matthew Howard and Martha C. Nussbaum eds, 1999). 62 Kymlicka, supra note 35, at 31. 63 Id at 31–32. 64 Id at 33. 65 Id at 34. 59 60

356  Constitutions and religion oncilable’, ‘lawyers, judges, policymakers, religious leaders, and the individuals involved can and do find ways of working through these conflicts, often in creative and innovative ways’.66 Joffe offers a method for working through clashes between women’s rights and religious accommodation: instead of making cultures go extinct, communities should be encouraged to identify how their practices that discriminate against women can be integrated with gender equality norms. This would then be translated into institutional mechanisms for ensuring that gender equality is prioritized.67 Indeed, respecting religious differences and multicultural accommodation does not require an ‘uncritical preservation of authentic, traditional practices’. Religions and cultures are constantly in processes of ‘interpretation, selection and refinement’, with ‘counterinsurgencies, alternative interpretations, and insurgent schools of thought competing for dominance’.68 Religious and cultural practices are dynamic and group identity is a process of finding shared meaning within these shifting practices. As such, a government using its laws to empower women, who may be in less privileged positions within a religion, does not make the religion less ‘authentic’ – although it may be seen this way by some. In order to increase legitimacy, Joffe urges that attention be paid to dissonant voices and to existing parallel norms within religions, to see where gender equality might be consistent with internal cultural values.69 Martha Minow provides a conceptual framework for instances where conflicts, or the appearance of such conflicts, between gender equality and religious freedom form. Minow argues that often space can be made for religious practices without sacrificing secular values.70 This can be done via types of compromise that show flexibility and creativity. In the courts, this means judges who reject an all-or-nothing stance, and instead announce positions that are at once principled, while also recognizing commitments to multiple values that at times may compete.71 In other cases, such compromise is not even necessary. Instead, ‘convergence’ may be possible in situations where each side can find common grounds without sacrificing principles.72 This convergence can be aided by shifting focus from rights, which is often based on individuals, to a focus on respecting human dignity within different types of social relationships.73 In cases where convergence or compromise is not possible, Minow points out that the law already includes tools for addressing a clash between equality and religious freedom – namely federalism and privatization. Federalism allows for a nation to have different standards, with a decentralization that ‘permits multiple answers to a contested question’. Privatization lets religions use secular contract and property laws to organize for their own purposes.74 As such, 66 Lisa Fishbayn Joffe, Theorizing Conflicts between Women’s Rights and Religious Laws in Gender, Religion, & Family Law: Theorizing Conflicts between Women’s Rights and Cultural Traditions xv–xvii (Lisa Fishbayn Joffe and Sylvia Neil eds, 2012). 67 Id at xxvi. 68 Id at xxviii. 69 Id at xxviii–xxix. 70 Martha Minow, Principles or Compromises: Accommodating Gender Equality and Religious Freedom in Multicultural Societies in Gender, Religion, & Family Law: Theorizing Conflicts between Women’s Rights and Cultural Traditions 11 (Lisa Fishbayn Joffe and Sylvia Neil eds, 2012). 71 Id at 13. 72 Id at 15–17. 73 Id at 22. 74 Id at 23–25.

Gender justice and religious freedom in the post-secular age  357 although they seem intractable, conflicts between women’s rights and religious rights can be addressed through existing legal structures. In sum, conflicts between women’s rights and minority religions are not inevitable. Once religions and cultures are more fully understood – including their history, internal resistance and importance to members – it becomes clear that women’s equality and minority religions can, at least in some cases and to a certain extent, co-exist and develop together.

3.

GENDER EQUALITY AND MINORITY RELIGIOUS FREEDOM IN THE COURTS

These theoretical difficulties around multiculturism and feminism became major practical dilemmas as they reached the courts. This section surveys cases from the mid-1980s to the 2010s, focusing on two areas: (1) family law, particularly Muslim and Jewish rules around marriage and divorce; and (2) Muslim women’s head or face coverings. It assesses how courts have (and have not) allowed special treatment for minority religions and/or struck a balance between the competing rights of women belonging to minority groups. Several cases that highlight the tension between group rights and their compatibility with women’s rights have been litigated in India. In the colonial era, early colonizing countries promised different religions and communities their own sets of laws on matters such as marriage, inheritance and caste. After independence, separate laws for Hindu, Muslim and Christian communities became formalized into a personal law regime.75 On the one hand, personal laws have been used to justify and maintain religious practices that discriminate against women, such as polygamy, post-divorce spousal maintenance and property inheritance.76 On the other hand, they have played into the hands of Hindu nationalism in marginalizing religious minorities. These difficulties are exacerbated by the ambiguities regarding the role of the Indian Supreme Court, which is empowered to protect minorities and assert equality rights under its constitution; although it is not clear whether the judiciary has the power to interpret personal laws.77 One major Indian case as to personal laws and a potential conflict with group rights is the Shah Bano case.78 In Shah Bano, a divorced Muslim sought spousal maintenance under India’s general law, while her ex-husband argued that she should be entitled to alimony only for iddaat – the approximately three-month period that a woman must wait under Islamic law before remarrying. The court held that the general maintenance law applied to people of all religions and overrode any personal laws it might conflict with, based on all people’s obliga-

75 Pratibha Jain, Balancing Minority Rights and Gender Justice: The Impact of Protecting Multiculturalism on Women’s Rights in India, 23 Berkeley J Int’l 201 (2005). 76 Id. Jain argues that a solution to the discriminatory effects of personal laws would be for the Indian legislature to draft a civil code that would apply to all people, and which would meet the test for equality guaranteed under India’s constitution. Such a code would give people the option to be governed by personal laws, and would also put pressure on minority groups to make their personal laws more consistent with women’s equality. The court in the Shah Bano decision discussed below agreed that the legislature should create this common civil code. Shah Bano at para 32. 77 Id. 78 Mohammed Ahmed Khan v Shah Bano Begum, Supreme Court of India, AIR 945 (1985) (hereinafter ‘Shah Bano’).

358  Constitutions and religion tion to society to prevent women and children who would be unable to support themselves from becoming homeless.79 The Shah Bano case, decided by an exclusively Hindu court, led to outcry in Muslim communities.80 Part of the outcry was the court’s finding that there was no conflict between the country’s maintenance laws and Islamic law, because of its reading of the Quran as requiring an ex-husband to provide for the support of his ex-wife, contrary to the interpretation rendered by the Sharia court.81 In the context of the rise of the Hindu right, which used secularism and human rights discourse to silence and disempower minorities, the court’s request for a common civil code was seen as a possible move by the Hindu right to consolidate its power. The resultant pressure on Parliament led to the passage of a law the next year that reversed the court’s decision and took away the availability of general alimony to Muslim women.82 The 1985 Shah Bano case and subsequent law that reversed the court’s decision led to several constitutional challenges and conflicting lower court opinions.83 In the 2001 Danial Latifi case the Indian Supreme Court finally adjudicated the constitutionality of the law, from a series of petitions that argued it violated the Indian Constitution’s guarantees of equality, life and liberty, and undermined the secular principles under India’s Constitution. The court found that the duty to secure social justice is shared by all religions, and that homelessness and poverty are universal problems that should be decided within a human rights framework. The court held that the 1986 law was constitutional, but should be constructed to ensure that the amount paid in the iddatt period would be fair and reasonable for the woman’s future wellbeing. In this way, the court was able to guarantee equal treatment and the non-discrimination of Muslim women, within the framework of Muslim personal law.84 Another site of tension between accommodation of religion and women’s rights is the Jewish divorce (a get). Under Orthodox Jewish rules, only a man can agree to a get; if he does not, then his wife cannot enter into another religiously valid marriage or have children seen as legitimate by the religion. Significant get cases have been decided outside of Israel and include Bruker v Marcovitz, decided by the Supreme Court of Canada, as well as cases decided in Great Britain, France, South Africa and Australia. In all of these cases, secular courts used damages to compensate women whose spouse had refused to provide the get, on the grounds that, in the words of the Australia Family Court, ‘[i]t is contrary to all notions of justice’ to allow a man to obtain a divorce in Australia and refuse to relieve his wife ‘and say that the courts can do nothing’.85 In Bruker v Marcovitz, the Canadian court confronted an older man who had refused to grant his significantly younger wife a get for 15 years, during which period she had not remarried or had children.86 The wife sued her husband for damages, while the husband claimed that he should be exempt for damages under his right to freedom of religion. The court’s majority Shah Bano at paras 7, 10. Jain, supra note 75; Siobhan Mullally, Feminism and Multicultural Dilemmas in India: Revisiting the Shah Bano Case, 24 Oxford J Leg St 671 (2004). 81 Shah Bano at para 22. 82 Jain, supra note 75. 83 Mullally, supra note 80. 84 Danial Latifi & Anr v Union of India (2000). 85 Marriage of Shulsinger (1977) 2 Fam LR 11611 Australia. 86 Bruker v Marcovitz, Supreme Court of Canada, 2007 SCC 54, at paras 28–30. The husband had agreed to a get as part of the secular divorce, but then refused to after the divorce was otherwise finalized. 79 80

Gender justice and religious freedom in the post-secular age  359 opinion began by asserting that Canada is a multicultural country, with tolerance for pluralism and the right to have differences protected.87 However, the court quickly added that not all differences are compatible with Canada’s fundamental values. As such, under the Quebec Charter, the claim to free exercise of religion must be balanced against the public interest and the extent to which that exercise is harmful to others.88 Doing this balancing, the court found that the husband’s claimed exercise violated his wife’s equality, religious freedom and autonomous choice in marriage and divorce, as well as public policy in favour of allowing remarriage.89 In so finding, the court explicitly recognized how ‘well-meaning attempts to respect differences often translate into a license for subordination of a particular category of group members – in this instance, primarily women’.90 The Jewish divorce cases, as well as cases on Islamic marital mahr contracts, show that some cases which at first appear to be a clash between gender equality and religious beliefs are at core about one (or both) parties acting strategically to maximize their own personal benefits. As such, courts – as in Bruker – can look to what would amount to an equal distribution, and not solely at the religious questions.91 However, it is not just the parties to the case who seek the best outcome in these cases. Patriarchal elites within religions also use these cases, and religious tribunals, to defend and maximize their power – and the discriminatory doctrines that give them that power.92 Thus, the Bruker case and other similar decisions are important, in that they take into account a religious community’s laws and align these laws within the secular setting to protect gender equality – here, the wife’s own religious freedom to be able to remarry and have children.93 Perhaps most synonymous with the assumed clash between gender equality and religious accommodation has been the legal regulation of Muslim women wearing traditional religious attire. Since the late 1980s, when the first expulsions of pupils not willing to uncover the head occurred in France, controversies over Muslim religious symbols in the public sphere have spread across European countries, resulting in laws and judicial decisions banning or limiting the right of Muslim women to wear the hijab, the jibab and the niqab. These controversies, however, do not easily compare to the cases previously analysed in this chapter. Indeed, the premise of the debate concerning the power of receiving liberal societies to strike a balance between the competing rights of women belonging to minority groups is that a conflict between religious or cultural rights and gender equality potentially exists. But while the right to manifest one’s religion, including through the wearing of religious clothes, is certainly protected by the constitutions of European states and by the European Convention Id at para 1. Id at paras 2, 65, 76. The precise balancing test announced by the court is ‘whether an individual’s sincerely held and good faith religious belief is being unjustifiably limited to a non-trivial degree’. Id at para 67. 89 Id at paras 80–81. 90 Id at para 82. Of interest, the majority and dissenting opinions in the Bruker case each performed extensive comparative analyses of get cases with competing claims of women’s rights versus religious rights in other countries, with differing conclusions as to their import. 91 Joffe, supra note 66, at xxiv. 92 Susan Weiss, From Religious “Right” to Civil “Wrong”: Using Israeli Tort Law to Unravel the Knots of Gender, Equality, and Jewish Divorce in Gender, Religion, & Family Law: Theorizing Conflicts between Women’s Rights and Cultural Traditions (Lisa Fishbayn Joffe and Sylvia Neil eds, 2012). 93 Minow, supra note 70, at 8. 87 88

360  Constitutions and religion of Human Rights (ECHR), it is unclear which other equally protected rights could be violated by the practice of wearing a veil. The first generation of bills, laws and judicial cases banning or limiting this right in various European jurisdictions relied on Muslim clothing’s inherent anti-feminist nature. This clothing (or particular types of clothing) has been judged as colliding with gender equality; with women’s equal value; with their autonomy, dignity and freedom. Pieces of fabric, however, cannot not per se violate these rights. In these cases, the balance is struck not between competing rights, but rather between religious freedom and the veil’s symbolic dimension – that is, the significance attributed to it by Western courts and legislatures. When the effect of this balancing exercise results in bans and limitations on the right to wear religious attire, this produces a particular kind of discrimination in which gender, religion and ethnicity intersect, affecting the equality of Muslim women and girls in crucial sectors such as education, the workplace, access to the public sphere and obtaining citizenship. Two cases decided by the European Court of Human Rights (ECtHR) provide paradigmatic examples of the structure of the balancing tests and its paradoxical effects. In these decisions the ECtHR upheld, respectively, the dismissal of a teacher in Switzerland94 and the expulsion of a medical school student in Turkey95 for wearing the hidjab, on the ground that wearing headscarves ‘[a]ppears to be imposed on women by a precept which is laid down in the Koran and [...] is hard to square with the principle of gender equality’;96 and that it ‘[a]ppears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination’.97 The (assumedly) inherently anti-feminist nature of Muslim clothing also provided the rationale for two French laws that significantly limited the right of girls and women to wear Muslim traditional attire. The French Stasi Commission – which set the ground for the enactment of the 2004 law that prohibits the display of religious symbols in state schools – asserted (without supporting this assertion with any data) that Muslim women are pressured by men from their community into wearing ‘modest and asexual clothes’, and are stigmatized as ‘whores’ if they do not conform.98 Similarly, the preliminary parliamentary resolution to the 2010 law, which criminalized the full face veil in all public spaces, refers to the veil as a ‘degrading garment [which] goes hand in hand with the submission of women to their spouses, to the men in their family, with the denial of their citizenship’.99 French courts have also denied citizenship to a woman who otherwise satisfied all requirements and was married to a French national on the ground that her practice of Islam (manifested in her wearing the niqab and asserting an obligation to obey her husband) was incompatible with basic French values, particularly with the principle of gender equality.100 ‘Women-protective’ rationales for veil bans have been the target of much criticism, which has exposed their imperialistic and patronizing nature. As an initial matter, these rationales European Court of Human Rights, Dahlab v Switzerland (Application 42393/98) (2001). European Court of Human Rights, Sahin v Turkey (Application 44774/98) (2007). 96 Dahab, ‘The Law’, 1. 97 Id. 98 Commission de réflexion sur l’application du principe de laïcité dans la République, Rapport au Président de la République (‘The Stasi Commission Report’) 46 (11 December 2003). 99 Assemblée Nationale, Rapport d’information no. 2262, Au nom de la mission d’information sur la pratique du port du voile intégral sur le territoire national 14 (26 January 2010). 100 Conseil d’Etat, 27 June 2008 req 286798. 94 95

Gender justice and religious freedom in the post-secular age  361 conflate the different cultures of Eastern societies and the complex traditions of European Muslims into a homogeneous backward, misogynist and undemocratic Oriental paradigm, which is pitted against European modernity. In this light, the claims to wear a veil and to be part of the European public sphere are deemed mutually exclusive, and the regulation of Muslim women’s bodies serves to assert Western cultural supremacy, as well as to fuel the narrative of the clash of civilizations.101 Women-protective rationales for veil bans have also been enforced without allowing Muslim women’s voices in this debate concerning their bodies and status. The dissenting judge in the ECtHR case of Sahin v Turkey, cited above, stressed that while ‘Wearing the headscarf is considered [by the ECtHR] [...] to be synonymous with the alienation of women’, ‘what is lacking in this debate is the opinion of women, both those who wear the headscarf and those who choose not to’.102 Lastly, numerous empirical researches have contradicted the assumptions behind women-protective anti-veil justifications, showcasing the manifold significances of different veiling practices from the perspective of European Muslim women.103 The notion that Muslim women have agency and might actually choose to wear headscarves and face veils has slowly made its way into the public debate. This, however, has not resulted in the lifting of veil bans. Rather, it has resulted in the shifting of their rationale from women-protective to society-protective, turning religious Muslim women from victims to enemies. In other words, while the first generation of veil bans proceeded from the assumption that Muslim women needed to be protected from a religious practice that negated their equality, the new bans assume that Muslim women wear religious attire out of their own will and cast them as emblems of an irreconcilable, anti-democratic Islamic other, which threatens European fundamental values. This shift is particularly evident in the recent case law of both the ECtHR and the Court of Justice of the European Union (CJEU). Between 2010 and 2011, France and Belgium adopted laws criminalizing the wearing of facial veils in all public places.104 These laws were upheld, respectively, by the French Constitutional Council and the Belgian Constitutional Court, on the grounds that wearing facial veils might jeopardize public safety and does not comply with the minimum requirements of life in society. The two courts also found that women who conceal their face, voluntarily or otherwise, are objectively placed in a situation of exclusion and inferiority that is patently incompatible with the constitutional principles of liberty and equality.105 Both the French and the Belgian laws were subsequently tested before the ECtHR. The ECtHR evaluated the legitimacy, under the ECHR, of the three aims pursued by the French and the Belgian legislatures: public safety, gender equality and a certain conception of ‘living together’ in society. In SAS v France,106 the ECtHR decided that a blanket ban on facial veils was not necessary for the protection of public safety, given that less restrictive alternatives – such as requesting to show the face in particular circumstances – were available. Most importantly, the ECtHR turned its back on women-protective arguments, rejecting the 101 Susanna Mancini, Patriarchy as the Exclusive Domain of the Other: The Veil Controversy, False Projection and Cultural Racism, 10 (2) International Journal of Constitutional Law (I.CON) 411 (2012). 102 Sahin v Turkey, supra note 95, dissenting opinion of Judge Françoise Tulkens, at para 11. 103 Eva Brems (ed.), The Experience of Full-Face Veil Wearers in Europe and the Law (2014). 104 Law 2010-1192 of 11 October 2010 (France) and the Law of 1 June 2011 (Belgium). 105 Decision of 7 October 2010 (2010-613 DC) (France) and judgment of the Constitutional Court of 6 December 2012 (Belgium). 106 European Court of Human Rights, SAS v France (Application 43835/11) (2014).

362  Constitutions and religion notion that certain attire have per se a discriminatory effect on women, and declared that ‘[a] State Party cannot invoke gender equality in order to ban a practice that is defended by women’;107 and that, while ‘[t]he clothing in question is perceived as strange by many of those who observe it [...] is the expression of a cultural identity which contributes to the pluralism that is inherent in democracy’.108 Thus, it seemed that the ECtHR acknowledged that veiling practices are nothing but a manifestation of the multiplicity of cultural forms, and that veiled Muslim women may actually make a contribution to the democratic pluralistic public sphere. However, in its subsequent reasoning the ECtHR dramatically reduced the scope of pluralism, maintaining that respect for the minimum requirements of ‘living together’ constituted a legitimate aim for the criminalization of facial veils. ‘Living together’ is not listed in the ECHR among the legitimate grounds for limiting fundamental rights. Yet the ECtHR accepted it as part of the ‘protection of the rights and freedoms of others’,109 holding that ‘the barrier raised against others by a veil concealing the face is perceived [...] as breaching the right of others to live in a space of socialization which makes living together easier’.110 In other words, the mere sight of a fully veiled woman can objectively jeopardize ‘living together’ in a pluralistic society. This line of reasoning constitutes a clear shift from the victimization of veiled Muslim women to their construction as anti-system subjects. Indeed, the ECtHR accepted the use of criminal sanctions to suppress the visibility of facial veils, noting that the sanction is ‘light’ relative to other criminal penalties.111 Clearly, however, the symbolic nature of criminal law suffices to attach a particular stigma to a religious practice, constructing women who adhere to it as pernicious outcasts. In the subsequent Belgian case of Belcacemi et Oussar v Belgium,112 the ECtHR essentially reiterated its reasoning in SAS v France, holding that by criminalizing facial veils, Belgium had legitimately sought to respond to a practice that it considered to be incompatible with social communication and with the establishment of human relations, which are indispensable for life in democratic society. Two decisions of the CJEU similarly testify to the shift in the rationale of veil bans. The cases of Achbita and Bougnaoui113 were referred to the CJEU by, respectively, the Belgian and the French supreme administrative courts. In both cases, a woman had been dismissed by her private employer on the ground of her wearing a headscarf, against the company’s dress policy. The CJEU concluded that such dismissals do not violate EU law, as long as the employer adopts a general neutrality policy – that is, a ban on all religious signs. The ECtHR thus constructs the principle of neutrality as a legitimate aim that justifies the discrimination against minority religion employees. ‘Neutrality’, however, is not listed among the aims that may justify discrimination in any of the laws applicable to this case. In this respect, the use of ‘neutrality’ by the CJEU is analogous to that of ‘living together’ by the ECtHR. Both are unenumerated grounds for limiting fundamental rights, and are vague, culturally loaded, slip Id at para 119. Id at para 120. 109 Id at para 121. 110 Id at para 122. 111 Id at para 152. 112 Belcacemi et Oussar v Belgique (Application 37798/13) (2017) [in French only]. 113 Court of Justice of the European Union, Judgments in Cases C-157/15 Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions, and C-188/15 Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole Univers (2017). 107 108

Gender justice and religious freedom in the post-secular age  363 pery concepts. Being bare-headed is neither more nor less neutral than covering one’s head, unless one equates neutrality with contemporary Western mainstream attitudes. Moreover, the CJEU – like the ECtHR – did not engage in any victimization narrative. To the contrary, it worked from the assumption that wearing a headscarf is a woman’s choice and proceeded to give ammunitions to the private sector against women who make this choice, in the name of a one-sided and oppressive notion of neutrality. 3.1

The Impact of Majority Religions on Women’s Rights

As seen above, the major disputes of the 1990s and early 2000s (and continuing today) have revolved around minority (whether numerical or political) practices. Yet the past two decades have also seen an unexpected and increasing backlash from the growing political influence of majority religious actors, as well as a surge of religious conservatism and fundamentalism around the world. As Christopher McCrudden traces in his chapter in this volume, the assumption that modernization would inevitably lead to secularism has proven false. Instead, religion has not been expelled from public spaces, but actually returned to the public realm seeking a wider role in the political arena.114 Secularization theorists did not foresee the impact of majority and mainstream religions on women’s rights. They were correct, however, that the role of religion in public life would lead to tension with human rights. This tension can be seen in especially stark contrast within the area of women’s rights. As noted in a 2017 statement by United Nations human rights experts: Women’s rights are facing an alarming backlash in many parts of the world [...] [W]e are witnessing efforts by fundamentalist groups to undermine the foundation on which the whole human rights system is based. Some of these efforts are based on a misuse of culture, including religion and tradition [...].115

UN Special Rapporteur Karima Bennoune has also recently called attention to the repercussion on women’s rights of the increasing politicization of religious fundamentalism in different parts of the world. According to Bennoune: The different manifestations of fundamentalism display notable similarities, especially in their interpretation of gender and family [...] At the heart of fundamentalist agendas are the circumscription of women’s roles, the suppression of women’s rights and control of women. Often, such agendas also promote the segregation of women [...] Gender-based laws and policies promoted by fundamentalist groups are based on stereotyped and sexist ideas about gender relations.116

Indeed, from the rise of the religious right in the United States to the Iranian Revolution of 1979; from the establishment of the Taliban state in Afghanistan to the victory of Islamist parties in Egypt and Tunisia following the Arab Spring, to the consolidation of the Erdogan regime in Turkey, to the rise of Boko Aram in Nigeria since 2003; the world has witnessed a resurgence of political movements rooted in traditional and fundamentalist views of religion. See Casanova, supra note 31. Office of the United Nations High Commissioner for Human Rights (OHCHR), UN Experts Call for Resistance as battle for Women’s Rights Intensifies (28 June 2017). 116 United Nations General Assembly, Report of the Special Rapporteur in the field of cultural rights A/72/155 6 (July 17, 2017). 114 115

364  Constitutions and religion The resurgence of strong religion must be placed in the broader context of the historical processes of secularization, globalization, mass migration and democratization. These processes set the premises for the advancement of gender equality. However, as gender equality has advanced, and has become a fundamental principle of human rights law and of democratic constitutionalism, conflicts have risen with fundamentalist forces wishing to reinstate traditional gender roles. To properly understand these conflicts, one should bear in mind that in all societies women embody both cultural and biological reproduction, as the widespread use of female figures such as Marianne and Germania to embody the nation shows. Women represent the cultural norms and values that define a certain group in a given historical moment, and the possibility to pass on such norms and values to the next generation. This explains the great importance that all societies and all legal systems place on women’s reproductive role: on whom women can marry and with whom they are permitted to have children. These rules are of key importance in defining the identity of a group and in drawing the boundaries between insiders and outsiders, and explains why women’s status and women’s bodies often become political and cultural battlefields. All nations thus result and depend upon particular constructions of gender.117 No narrative of national unity, no theory of equal citizenship has ever resulted in a nation state where women and men have been granted equal status and equal access to resources.118 The birth of European nation states is imbued in the construction of sexed individuals and in the production of gendered norms, such that sexuality and the body constitute the actual locus of social control.119 Thus, nationalistic and feminist claims are often at odds with one another. In nation building processes and in times of profound political change, women are often co-opted as national emblems to represent the new state ideals or the return to a mythical authentic tradition. A country’s majority religious tradition can be perceived as an obstacle to the country’s road to modernization; but it can also be used to reject the notion that modernity is possible exclusively in European forms, and to assert the possibility of alternative forms of modernity that build on the country’s traditional culture. In this respect, the case of Turkey is emblematic. As Nira Yuval-Davis puts it, ‘deveiling women in Ataturk’s revolution in Turkey in 1917, to bring about a modern nation-state, was as important as veiling them by the Muslim fundamentalists’.120 Indeed, in Turkey women have become the target of symbolic and substantial action by the Justice and Development Party (AKP) led by Recep Tayyp Erdogan in its effort to distant the new regime from the modern state established in 1920 by Kemal Ataturk. Ataturk’s modern Turkey explicitly recognized gender equality under the law. The Turkish Civil Code of 1926 prohibited polygamy, subjected marriage to secular law, outlawed unilateral divorce and recognized gender equality in inheritance and guardianship of children.121 Against this backdrop, Erdogan’s AKP launched

117 Anne McClintock, Family Feuds: Gender, Nationalism and the Family, 44 Feminist Review 61, 62 (1993). 118 Id at 62 et seq. 119 Michel Foucault, The History of Sexuality (R. Hurley trans, 1978). 120 Nira Yuval-Davis, Gender and Nation 98 (1997). 121 Yesim Arat, Religion, Politics and Gender Equality in Turkey: Implications of a Democratic Paradox?, 31 Third World Quarterly 869 (2010).

Gender justice and religious freedom in the post-secular age  365 a supposedly moderate, neo-conservative Muslim political doctrine as an alternative modernization project.122 Yet the AKP’s doctrine has consistently undermined the equality of women, relying on the centrality of the family grounded on traditional gender roles. As Tutku Ayan explains: [i]n this heteronormative approach, family, imagined as a ‘prototype of the nation’, consists of individuals who share the same values, have different responsibilities based on their age and gender, and do not hesitate to put the familial unity before their own well-being.123

Traditional gender roles and family values are pitted against ‘Western’ individualism and acquire an almost salvific essence. For example, in 2016, Erdogan called Muslim women to reject contraception to ensure the continuing growth of the Turkish population.124 The systematic propagation of Islamist norms by the AKP has been made possible thanks to the recruitment of politicians and civil servants who adhere to patriarchal visions of religion, especially regarding the position of women. This has resulted in the lifting of the ban on headscarves in political, educational and public institutions – a measure purported as a means of liberation from the oppressive secular philosophy that dominated the pre-Erdogan era and as a triumph of religious freedom.125 In our previous critique of European bans on Muslim female traditional clothing in Europe, we demonstrated how secularism and gender equality are invoked to violate Muslim women’s rights, including religious freedom. In the context of Turkey, however, the implications of regulating the veil are much more complex, ‘due first to the elements of the history of the Turkish Republic, second to the emergence of new state-society relations, and third to the accelerated developments in the conflict between Islamists and secularists’.126 While the analysis of such complexities goes beyond the scope of this chapter, lifting the ban has resulted in new forms of pressure that limit women’s freedoms and opportunities. Indeed, ‘[f]eminist researchers argue that women administrators feel AKP bureaucrats and politicians are uncomfortable working with women in the public service and resent the presence of women without headscarves in public places’.127 Action by the AKP has also led to the transformation of the structure of the welfare in ways that push women in the role of care givers, increase their economic dependence and discourage their presence in the workforce;128 and has infused the educational system with traditional (patriarchal) religious values.129 Moreover, under the AKP, the Department of Religious Affairs (the highest religious authority in Turkey and part of the state apparatus tied to the prime minister) has consistently upheld patriarchal interpretations of Islam – for Alev Cinar, Modernity, Islam, and Secularism in Turkey: Bodies, Places, and Time (2005). Tutku Ayan, KADEM’s “Gender Justice” or the Momentum of Anti-Genderism in Turkey, Engenderings (29 April 2019), https://​blogs​.lse​.ac​.uk/​gender/​2019/​04/​29/​kadems​-gender​-justice​-in​ -turkey/​, last accessed 26 May 2020. 124 Turkey’s Erdogan Warns Muslims against Birth Control, BBC News (30 May 2016), www​.bbc​ .com/​news/​world​-europe​-36413097, last accessed 26 May 2020. 125 Yesim Arat, Religion, Politics and Gender Equality in Turkey: Implications of a Democratic Paradox?, 31 (6) Third World Quarterly 869, 872 (2010). 126 Ayşe Saktanber and Gül Çorbacioğlu , Veiling and Headscarf-Skepticism in Turkey, 15 (4) Social Politics: International Studies in Gender, State & Society 514, 514 (2008). 127 Id. 128 Ayan, supra note 123. 129 Arat, supra note 121, at 874. 122 123

366  Constitutions and religion example, by prompting women to cover themselves, not wear perfume and not remain alone with men outside of their family.130 In sum, as Yesim Arat notes, ‘the more liberal interpretations of Islam, which do not expect women to cover their heads and which the founding fathers assumed, is being replaced [and propagated by government-controlled bodies] by another interpretation increasing patriarchal control over women's bodies’.131 In post-colonial contexts, women’s bodies and women’s status often become the symbol of the newly established national identity. This new national identity is often articulated in oppositional terms, as a reaction against the previous political system, the colonial past, contemporary external interferences and international human rights standards. In this respect, one can think of the defence of female genital mutilations by Jomo Kenyatta, the first Kenyan president and a world-renowned anti-colonial activist, on the ground that those who attacked the practice (including missionaries and the colonial government) missed: the understanding of a very important fact in the tribal psychology [...] – namely that this operation is still regarded as the very essence of an institution which has enormous educational, social, moral and religious implications, quite apart from the operation itself.132

The success of Boko Aram (literally, ‘Westernization Is Sacrilege’ in the Hausa language) in Nigeria also comes to mind. As Chitra Nagarajan explains, ‘the binary between culture/ religion/tradition and modern/secular/foreign’ is deeply rooted in the history of the predominantly Muslim Northern regions of Nigeria, which since independence from Britain in 1960 were federated with the largely Christian Southern part of the country.133 Federal Nigeria was initially ruled mostly by military northern Muslims. Christian influence, however, steadily increased throughout the country, resulting in the election of a Christian president, Olusegun Obasanjo, in 1999 after the return to democratic rule.134 This combination of the democratic transition and Christian political ascendency set the premises for a defensive reaction in the predominantly Muslim northern states. The binary between culture/religion/tradition and modern/secular/foreign deepened with the return to democracy as a consequence of the pervasive corruption and impunity for leaders, which resulted in a general sense of disappointment with politics and alienation for the secular democratic institutions.135 Culture/religion/tradition became synonymous with ‘justice, morality and effectiveness governance’; while modern/secular/foreign became associated with ‘corruption, injustice, immorality and predatory governance’. This paved the way for the introduction of Sharia codes in 12 of the northern states with predominately Muslim populations.136 This satisfied ‘the official manifestations of Islam in the north’, but left out ‘radicals—such as members of Boko Haram’.137 Boko Haram, however, quickly took advantage of the disappointment following the imposition of Sharia, which did not bring ‘about fundamental and transformative

Id at 875. Id. 132 Jomo Kenyatta, Facing Mount Kenya: The Tribal Life of the Gikuyu 133 (1961). 133 Chitra Nagarajan, Culture/Religion/Tradition vs Modern/Secular/Foreign. Implications of Binary Framings for Women’s Rights in Nigeria, 3 Feminist Dissent 114, 114 (2018). 134 David Cook, The Rise of Boko Aram In Nigeria, 4 (9) CTC Sentinel 3, 3 (2011). 135 Nagarajan, supra note 133, at 121. 136 Id at 115. 137 Cook, supra note 134, at 4. 130 131

Gender justice and religious freedom in the post-secular age  367 change addressing poverty, inequality, corruption and injustice’.138 As a consequence, ‘there became increased emphasis on religious performativity and forms of “immorality.” Women’s bodies became the way to demonstrate Shari’a’s effectiveness’.139 In this context, Mohammed Yussuf, the founder of Boko Haram, was able to successfully advocate for the return to a purer Islamic life through the rejection of all ‘Western’ influence and the violent oppression of women and sexual minorities.140 Conflicts in Israel also showcase how complex accommodating heavily conservative religions while respecting women’s equality can be. Two major sites of conflict have been women praying at the Western Wall and public buses that are segregated by gender and require a dress code for women. Not only do these cases display tensions between women’s rights and religious rights seen in the cases above, but each featured women within the religious group who opposed the group’s majority practice. They also raise questions about what constitutes a ‘minority’ religion. Indeed, Miriam Feldheim argues that ultra-Orthodox Judaism is not a minority religion in Israel. For Feldheim, the relevant inquiry is not how many people belong to the religion or culture, but whether the religion or culture has economic or political power. For groups without such power, special privileges are appropriate because there is a real risk that otherwise their culture may be lost. Because the ultra-Orthodox in Israel have significant access to institutional forms of power, they should not be afforded the type of special group rights that would be appropriate for a political-minority culture.141 Applying this political definition of minority and looking to opposition to the practice from women within the religion, Feldheim argues against the practice of gender segregated buses with modest dress codes for women in ultra-Orthodox areas of Israel.142 Perhaps the most well-known clash between religion and women’s rights is the issue of women’s prayer at the Western Wall. Beginning in 1988, a group of religious Jewish women, called ‘Women of the Wall’, began monthly prayers at Israel’s Western Wall. These women faced extreme opposition from some in the ultra-Orthodox community. In the two decades since, the Israeli High Court has issued multiple rulings and its legislature has repeatedly debated whether and how these women should be able to pray at the holy Jewish site, without any current legal or political resolution.143 Exploring this debate, Yuval Jobani and Nahshon Perez see elements of three normative approaches by the state to religion: privatization, ‘even-handedness’ and dominant culture view. Agreeing with Martha Minow as to the benefits of privatization, Jobani and Perez urge the courts and legislature to take a hands-off approach to religion. The Israeli government’s use of even-handedness – in which it becomes involved with religion, but attempts to fairly and equally allocate resources – is also an acceptable approach. Yet this example of 20 years of figuring out how to satisfy religious women who want to pray out loud at the wall, and ultra-Orthodox men and women who do not want that, shows how complex this method can be. Jobani amd Perez critique the dominant culture view Nagarajan, supra note 133, at 122. Nagarajan, supra note 133, at 122. 140 Nagarajan, supra note 133, at 124 et seq. 141 Miriam Feldheim, Balancing Women’s Rights and Religious Rights: The Issue of Bus Segregation, 31 (2) Shofar, Israel and Jewish Studies 73, 87–88 (Winter 2013). 142 Id at 89. 143 Judy Maltz, Women of the Wall Warned It Could Be Thrown Out of Holy Jewish Site, Haaretz (6 June 2018), www​.haaretz​.com/​israel​-news/​women​-of​-the​-wall​-warned​-it​-could​-be​-thrown​-out​-of​ -jewish​-holy​-site​-1​.6154971, last accessed 26 May 2020. 138 139

368  Constitutions and religion seen in some of the opinions and debates on Women of the Wall, under which the Israeli government identifies itself with a particular religious denomination, while attempting to still respect the fundamental rights of people who are not in that religion or who disagree with its doctrine. The Women of the Wall debate shows that such attempts to pick a side while respecting others often leads in practice to the violation of minority (and here, women’s) rights.144 In Europe and North America, the political return of conservative and fundamentalist religious activism is particularly perceivable in the field of sexual and reproductive rights. In these contexts, the regulation of women’s bodies takes place largely through claims to religious freedom. Indeed, the sphere of religious freedom and sexual and reproductive rights has been characterized by prolife activists from different continents and countries cooperating both formally and informally, unified by an agenda aimed at influencing domestic and international law making and litigation. Prolife religious organizations have become key players in regional and international policy-making fora such as the United Nations, as well as in norm-creating national and international contexts such as the European Union; and also, increasingly, in constitutional and human rights litigation. Much of this strategy to limit women’s reproductive rights has been within the context of majority religions’ claims to religiously based conscientious objection. Historically, conscientious objection has been invoked by individuals from minority religions who held peripherical – and often unpopular – views, and was invoked to obtain an exemption from generally applicable laws, as in the case of Jehovah’s Witnesses and service in the army. Yet today’s claims to religious exemptions in the field of reproductive rights are rooted in mainstream majority religious doctrines. Their aim is not to protect individual religious freedom, but to subvert existing laws and practices that enable women to control their reproductive life, as in the case of medical personnel refusing to perform and assist in abortion procedures. This evolution is particularly salient in the context of the United States’ culture wars. However, this discourse has now burst well beyond the borders of the United States and the current legal landscape has seen a widespread use of constitutionally based conscious objection doctrine to restrict access to sexual and reproductive rights in many parts of the world. Contemporary conscientious objection cases, especially in the United States, have also moved past individual to include institutional objections (eg, from pharmacies, hospitals, bakers and florists), with the assertion that each of these businesses has a right to refuse to provide their services based on religious objections.145 These refusals have been predominantly targeted at lesbian, gay, bisexual and trans people and women. As Louise Mellig explains: In the name of religion, stores assert a right to turn away same-sex couples seeking wedding-related services, pharmacies claim a right to turn away women seeking birth control, employers assert a right to refuse even to facilitate insurance coverage for contraception for their employees, and hospitals claim a right to refuse to provide abortion, sterilization, or transition-related healthcare.146

144 Yuval Jobani and Nahshon Perez, Women of the Wall: A Normative Analysis of the Place of Religion in the Public Sphere, 484–505 Oxford Journal of Law and Religion, Vol 3, No 3 (2014). 145 Louise Mellig, Religious Refusals and Reproductive Rights in The Conscience Wars, Rethinking the Balance between Religion, Identity, and Equality 379 (Susanna Mancini and Michel Rosenfeld eds, 2018). 146 Mellig, supra note 145 at 379–80, citing case law and Ethical and Religious Directives for Catholic Health Care Services, 5th ed, US Conference of Catholic Bishops (2009), www​.usccb​

Gender justice and religious freedom in the post-secular age  369 Mellig further identifies how these religious and constitutionally based refusals to serve women seeking to control their reproductive lives is a form of discrimination which stigmatizes women and is a violation of women’s equality.147 In these cases, women are reduced to their biology – with no coincidence that anti-abortion measures often occur within the context of pro-natalist policies. As such, in current laws on majority ‘religious accommodation’ and the cases upholding them, religion is weaponized to undermine gender equality by reasserting traditional gender roles.

4.

CONCLUDING REMARKS

The clash between women and religion has become increasingly more salient and prevalent since the 1990s, when Susan Okin launched a debate on the relationship between feminism and multiculturalism due to the deprivatization of religion; its politicization; and the entanglement of religion, ethnicity and nationalism. On the one hand, in Western democracies, gendered notions of secularism and cultural Christianity are increasingly pitted against the religious freedom of minority women to signal the existence of clash of civilization. On the other hand, the world has witnessed a return of religious conservativism and fundamentalism within majority denominations. This has triggered a dramatic backlash for women’s equality in virtually all parts of the world, from Turkey, Nigeria and Israel to Russia, the United States and Europe. In our current predicament, thus, the most pernicious clashes between religion and women’s equality are likely to result not from the granting of special rights to minority denominations, but from the politicization of patriarchal majority religions.

.org/​issues​-and​-action/​human​-life​-and​-dignity/​health​-care/​upload/​Ethical​-Religious​-Directives​-Catholic​ -Health​-Care​-Services​-fifth​-edition​-2009​.pdf, last accessed 26 May 2020; which sets forth standards for care in Catholic healthcare services. 147 Mellig, supra note 145, at 382–84.

21. Religious conscientious objection: a troubled path Isabelle Rorive and Ana Maria Corrêa1

1. INTRODUCTION This chapter aims to describe the legal narrative of conscientious objection based on religious and other ethically salient grounds. We start by briefly assessing the concept on the literal, political and historical levels. We demonstrate how the rhetoric of conscientious objection has evolved from a military context to a broad range of situations relating to public health, public administration and even the provision of goods and services (Section 2). Next, we retrace the troubled path of conscientious objection as a human right in the international and regional legal systems. We show that military service is the only area in which conscientious objection has been recognized as a human right (Sections 3 and 4). Finally, we conclude by discussing major difficulties in trying to transpose the debate surrounding conscientious objection beyond participation in the military forces. In this debate, we show the extent to which the use of conscientious objection is increasing, as it is somewhat blurred with reasonable accommodation (Section 5).

2.

DEFINITION, BOUNDARIES AND HARM

When one searches for the term ‘conscientious objection’ in a dictionary, whatever the language, it almost always yields a definition relating to the refusal to serve in the military – for example, ‘objection for reasons of conscience to complying with a particular requirement, especially serving in the armed forces’;2 ‘a person who refuses to work in the armed forces for moral or religious reasons’;3 ‘objection on moral or religious grounds (as to serve in the armed forces or to bearing arms)’;4 and in French, ‘refus de porter les armes formulé par un objecteur de conscience’.5 1 Ana Maria Corrêa’s research was funded by CAPES (the Coordination for the Improvement of Higher Education Personnel, Ministry of Education in Brazil). The authors warmly thank Areg Navasartian for invaluable editorial assistance. The manuscript was submitted to the editor in April 2018. 2 Oxford Dictionary, https://​en​.oxforddictionaries​.com/​definition/​conscientious​_objection, last accessed 24 January 2018. 3 Cambridge Dictionary (‘conscientious objector’), https://​dictionary​.cambridge​.org/​fr/​dictionnaire/​ anglais/​conscientious​-objector, last accessed 24 January 2018. 4 Merriam Dictionary, www​.merriam​-webster​.com/​dictionary/​conscientious​%20objection, last accessed 24 January 2018. 5 Oxford Dictionary, https://​en​.oxforddictionaries​.com/​definition/​conscientious​_objection, last accessed 24 January 2018; Dictionnaire Larousse (Objection de conscience), www​.larousse​.fr/​ dictionnaires/​francais/​objection/​55358/​locution​?q​=​objection+de+conscience​#163687, last accessed 24 January 2018.

370

Religious conscientious objection: a troubled path  371 The modern basis of conscientious objection is grounded on the introduction of universal conscription for the military service after the French Revolution. With the aim of creating a national army, Napoleon implemented large-scale conscription to address the lack of volunteers.6 Other European countries followed in his footsteps, setting the stage for wars in the nineteenth and twentieth centuries.7 During the First World War, the first massive wave of conscientious objectors appeared in Europe and the United States.8 Of those countries with a system of peacetime conscription, Denmark became the first to pass legislation recognizing conscientious objection.9 After the Second World War, when conscription was largely implemented on all continents, conscientious objection became a human rights issue. In the United States, the number of secular conscientious objectors increased significantly during the Second World War and the Vietnam War. At that time, more than 100 000 American men were opposed to military service, of whom 22 500 were prosecuted and 8800 were convicted for the violation of conscription laws. Unlike in previous conflicts, an average of 72 per cent of those convicted were secular objectors.10 On a global scale, conscientious objection was construed by the United Nations as a derived right of freedom of thought, conscience and religion enshrined in Article 18 of the Universal Declaration of Human Rights (UDHR) and later in Article 18 of the International Covenant on Civil and Political Rights (ICCPR).11 However, people also object to actions according to their moral or religious values in contexts other than military service. Currently, there are many objectors in the healthcare arena, such as parents who refuse to vaccinate their children,12 Jehovah’s Witnesses who refuse blood transfusions13 and doctors who oppose abortion procedures.14 In the public administration, public officers have refused to celebrate same-sex marriages;15 and even in the private sector, bakers have refused to make wedding cakes for same-sex couples.16 Conscientious objection

Richard Holmes (ed), The Oxford Companion to Military History 556 (2001). United Nations, Conscientious Objection to Military Service 1–5 (2012). 8 Devi Prasad and Tony Smythe (eds), Conscription: A World Survey – Compulsory Military Service and Resistance to It 56 (1968). 9 United Nations, supra note 7, at 5. 10 John Whiteclay Chambers II, Conscientious Objectors and the American State from Colonial Times to the Present, in The New Conscientious Objection: From Sacred to Secular Resistance 41 (Charles C. Moskos and John Whiteclay Chambers II eds, 1993). 11 United Nations, supra note 7, at 7. 12 Daniel A. Salmon et al., Compulsory Vaccination and Conscientious or Philosophical Exemptions: Past, Present, and Future, 367 The Lancet 436 (2006). 13 Carlo Petrini, Ethical and Legal Aspects of Refusal of Blood Transfusions by Jehovah’s Witnesses, with Particular Reference to Italy, 12 (Suppl 1) Blood Transfusion 395–401 (2014). 14 Emmanuelle Bribosia and Isabelle Rorive, Seeking to Square the Circle: A Sustainable Conscious Objection in Reproductive Healthcare, in Conscience Wars 392 (Susanna Mancini and Michel Rosenfeld eds, 2018). 15 See Bruce MacDougall et al, Conscientious Objections to Creating Same-Sex Unions, 1 Canadian Journal of Human Rights 127 (2012); Robert Wintemute, Accommodating Religious Beliefs: Harm, Clothing or Symbols, and Refusals to Serve Others, 77 Modern Law Review 240 (2014); Emmanuelle Bribosia and Isabelle Rorive, Les droits fondamentaux, gardiens et garde-fous de la diversité religieuse en Europe, in L’accommodement de la diversité religieuse. Regards croisés – Canada, Europe, Belgique 192 (Emmanuelle Bribosia and Isabelle Rorive eds, 2015). 16 Lee v Ashers Baking Company Ltd and others, UKSC 2017/0020, pending before the UK Supreme Court; Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, pending before the US Supreme 6 7

372  Constitutions and religion has permeated different layers of modern life, with objectors alleging their right to exemption from their obligations for reasons of personal morality. The expression, which has its roots in military service, has over time been appropriated by different social actors. It is increasingly used to refer to individual exemptions on religious or other ethically salient grounds. From a theoretical point of view, the question of whether someone can object to a legal obligation has been assessed. Should this be considered lawlessness? Many scholars start from the premise that the essence of the law in contemporary democracies is its equal application to all, irrespective of deeply held beliefs. In liberal regimes, political participation rights are protected by law and provide people with adequate opportunities to dispute it.17 In other words, declining to obey a legal rule – even for moral or ethical reasons – is forbidden and punished. Doing otherwise would have deleterious consequences for the general nature of the law and the neutrality of the state. Conversely, some argue that legal disobedience should at times be tolerated because the meaning or constitutionality of certain rules is highly controversial, or because their application might cause harm to third parties.18 Additionally, objecting to specific laws might go beyond individual reasons and aim to challenge unfair legal rules. In this line, political scientists often define ‘civil disobedience’ as ‘a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government’.19 Conscientious objection and civil disobedience are clearly related. They involve social practices motivated by religious, moral or political beliefs that are linked by ‘a certain conception of conscientious action that requires that a person’s convictions and her conduct be consistent’.20 However, whereas civil disobedience is, by definition, a breach of law, conscientious objection might be legally protected. Conscientious objection is also considered to be less overtly political than civil disobedience, as it is more about an individual desire not to participate in practices that one opposes than an ambition to change those practices. However, the boundaries are occasionally blurred when the matter involves a replay of court battles that have already been lost in Parliament, rather than seeking individual judicial exemptions based on conscience and religious freedom.21 This has been documented in recent years with respect to reproductive rights and lesbian, gay, bisexual and trans (LGBT) rights.22 One cannot address the range of individual exemptions based on religious or other ethically salient grounds in the same way. This is mainly because the harm involved varies greatly, Court. See Emmanuelle Bribosia and Isabelle Rorive, Why a Global Approach to Non-discrimination Law Matters? Struggling with the ‘Conscience’ of Companies, in Human Rights Tectonics: Global Dynamics of Integration and Fragmentation (Emmanuelle Bribosia, Isabelle Rorive eds, and Ana Maria Corrêa in collaboration, 2018). 17 Joseph Raz, The Authority of Law: Essays on Law and Morality 163 ff (1979). 18 Ronald Dworkin, Taking Rights Seriously 207 (1997); John Rawls, A Theory of Justice 33–36 (1973); Jürgen Habermas, Civil Disobedience: Litmus Test for the Democratic Constitutional State, 30(2) Berkeley Journal of Sociology 95–116 (1985). 19 Rawls, supra note 18, at 364; more on this perspective: Hugo Adam Bedau, On Civil Disobedience, 58 Journal of Philosophy 653 (1961); Howard Zinn, Disobedience and Democracy 119 (1968). 20 William Smith and Kimberley Brownlee, Civil Disobedience and Conscientious Objection, Oxford Research Encyclopedias 1 (May 2017). 21 Douglas NeJaime and Reva Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale Law Journal 2542 (2015). 22 Bribosia and Rorive, supra note 14, at 392–413.

Religious conscientious objection: a troubled path  373 depending on the relevant situation. While there is little impact on the rights of others where conscientious objection is raised in relation to military service, objecting to the provision of reproductive health services would greatly impair women’s human rights. Undue delay puts women’s lives at risk and may result in unsafe, clandestine and illegal abortions, which endanger the lives and physical and mental health of women.23 The harm might also be indirect. It might be experienced by gay couples faced with a civil registrar’s officer refusal to marry them on religious grounds, even though their marriage will be celebrated in the end. Equality and non-discrimination law promotes recognition and dignity, as humiliation, stigma and stereotyping can be experienced regardless of any particular material disadvantage.24 Indirect harm is part of Robert Wintemute’s test to define when accommodation of the manifestation of a religious belief is legally allowed (or even required).25 Cecile Laborde also recommends a strict balancing test which takes harm to dignity into account in order to decide whether a conscience claim justifies an exemption from a fair law of general application.26 With respect to conscience claims raised by civil marriage commissioners in Canada, it is fascinating to see that the whole range of legal options were discussed in different provinces in Canada.27 The Alberta government tried to enact legislation to back up religious and civil officials who did not wish to celebrate same-sex marriages. The Saskatchewan courts denied civil marriage commissioners any form of accommodation, to avoid perpetuating social and political prejudice and negative stereotyping.28 And Ontario provided for a statutory exemption limited to religious officials, while relying on informal ad hoc accommodation for civil marriage commissioners.29

3.

CONSCIENTIOUS OBJECTION AND INTERNATIONAL HUMAN RIGHTS LAW

In international human rights law, conscription is not covered by the prohibition of forced labour30 and no major treaty has explicitly granted protection to conscientious objectors. The 23 World Health Organization, Unsafe Abortion. Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality in 2008 27 (6th ed, 2011). 24 Sandra Fredman, Discrimination Law 19–25 and 28–30 (2nd ed, 2010). 25 Wintemute, supra note 15, at 228–29. Wintemute’s triple test reads as follows: ‘(i) the particular manifestation of religious beliefs itself causes no direct harm to others; and (ii) the requested accommodation involves minimal cost, disruption or inconvenience to the accommodating party; and (iii) the requested accommodation will (upon further examination) cause no indirect harm to others.’ 26 Cécile Laborde, Liberalism’s Religion 197 ff (2017). 27 MacDougall et al, supra note 16, at 132; José Woehrling, Aménagement de la diversité religieuse et conflits entre droits fondamentaux. Le contexte juridique canadien, in Bribosia and Rorive (eds), supra note 15, at 161–62. 28 Court of Appeal of Saskatchewan, 2011 SKCA 3, In the Matter of Marriage Commissioners Appointed Under the Marriage Act, 1995, SS 1995, c M-4.1; In the Matter of a Reference by the Lieutenant Governor in Council to the Court of Appeal Under the Constitutional Questions Act, RSS 1978, c C-29, para 52. 29 Bill 171 amendments to the Ontario Human Rights Code and Marriage Act explicitly provide that registered religious officials for whom same-sex marriage is contrary to their religious beliefs are not required to solemnize such marriages. 30 Article 8(3)(a) of the ICCPR. See also Article 2(a) of the 1930 Forced Labour Convention (No 29) of the International Labour Organization, Geneva, 14th ILC session (28 June 1930).

374  Constitutions and religion matter has been highly debated in the United Nations (UN) with respect to military service. During the negotiations of the ICCPR in the late 1950s, the Philippines strongly argued that a right to conscientious objection should be added to the provision guaranteeing the right to freedom of thought, conscience and religion (the future Article 18). It failed, as several states considered that such a right to conscientious objection was de facto protected in Article 18 of the UDHR, and that any additional amendment would be unnecessary. Some states were also concerned that adding a clause of conscientious objection would make it difficult to achieve consensus on the ICCPR.31 More generally, one must keep in mind that states are not significantly limited in terms of military conscription by international human rights regimes. There are only a few international law safeguards, such as the restriction on the recruitment of children under the age of 15 (or 18 in some cases) and the prohibition against discriminatorily and arbitrarily ordering forced recruitment.32 Furthermore, anyone has the right to refuse to serve in the military forces in apartheid regimes.33 Initially, the UN Human Rights Committee, which monitors the implementation of the ICCPR, did not consider that Article 18 provided for a right to conscientious objection. In 1985, the Committee declared inadmissible a complaint filed by a Finnish conscientious objector who refused to serve in the military forces, but volunteered to do an alternative service. According to the Committee: the Covenant does not provide for the right to conscientious objection; neither Article 18 nor Article 19 of the Covenant [...] can be construed as implying that right.34 In any case, the alleged victim “was not prosecuted and sentenced because of his beliefs or opinions as such, but because he refused to perform military service.35

The Committee started to shift its position in the early 1990s. Change took the form of an incremental evolution. In a 1991 case, JP v Canada, the Committee inferred some kind of conscientious objection from Article 18 of the ICCPR in a case that was finally declared inadmissible. The case involved a Canadian citizen, a member of the Society of Friends (Quakers), who objected to a fraction of her taxes going towards military expenditure because of her religious convictions. The Committee conceded for the first time that ‘Article 18 of the Covenant certainly protects the right to hold, express and disseminate opinions and convic-

31 Emily N. Marcus, Conscientious Objection as an Emerging Human Right, 38(3) Virginia Journal of International Law 507, 515 (1998); Matthew Lippman, The Recognition of Conscientious Objection to Military Service as an International Human Right, 21 Cal W Int’L LJ 31, 31 and 44–45 (1990–91). 32 The 1977 Additional Protocols I (Art 77(2)) and II (Art 4(3)(c)) to the 1949 Geneva Conventions; the Convention on the Rights of the Child (Art 38); the Rome Statute of the International Criminal Court (Arts 8(2)(b) (xxvi) and (e)(viii)); the Optional Protocol to the Convention on the Rights of the Child (Art. 2); the 1990 African Charter on the Rights and Welfare of the Child (Art 22(2)); the 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Art 11(4)); the International Labour Organization Worst Forms of Child Labour Convention (no 182) (Art 3). 33 GA Res 33/165, UN GAOR, 33rd Sess, Supp no 45, at 154, UN doc A/33/45 (1978). 34 LTK v Finland, Communication 185/1984, UN doc CCPR/C/25/D/185/1984, 9 July 1985, para 5.2. 35 Id.

Religious conscientious objection: a troubled path  375 tions, including conscientious objection to military activities and expenditures’.36 However, the case was rejected on the grounds that a refusal to pay taxes for religious reasons clearly falls outside the scope of the ICCPR. Thereafter, in the 1993 Brinkhof v the Netherlands case, the Committee declared that religious exemptions should be granted without discrimination. A Dutch citizen was sentenced to 12 months’ imprisonment and dismissed from the military forces for refusing to serve in the army or to perform substitute public service on the grounds of his pacifist beliefs.37 According to Mr Brinkhof, ‘by performing military service, he would become an accessory to the commission of crimes against peace and the crime of genocide, as he would be forced to participate in the preparation for the use of nuclear weapons’.38 The issue focused more on equality before the law and legal protection without discrimination (Article 26 of the ICCPR) than on the right to freedom of thought, conscience and religion. In the Netherlands, Jehovah’s Witnesses had been automatically exempted from military service and substitute service since 1974, unlike other conscientious objectors, who had to perform alternative service. In the view of the Netherlands, ‘membership of Jehovah’s Witnesses constitutes strong evidence that the objections to military service are based on genuine religious convictions’.39 In addition, the Netherlands stressed that the special treatment for Jehovah’s Witnesses could be justified by the fact ‘that baptised members form a closed group of people who are obliged, on penalty of expulsion, to observe strict rules of behaviour, applicable to many aspects of their daily life and subject to strict informal social control’.40 The Human Rights Committee did not share this view and emphasized that ‘when a right of conscientious objection to military service is recognized by a State party, no differentiation shall be made among conscientious objectors on the basis of the nature of their particular beliefs’.41 However, once again, the alleged victim lost his case, on the ground that: he has not shown that his convictions as a pacifist are incompatible with the system of substitute service in the Netherlands or that the privileged treatment accorded to Jehovah’s Witnesses adversely affected his rights as a conscientious objector against military service.42

Finally, in 2007, the Human Rights Committee unequivocally expressed the view that Article 18 of the ICCPR provides for a right of conscientious objection. Yoon et al v Republic of Korea43 was brought before the Committee by two Jehovah’s Witnesses who had been sent to prison for refusing to serve in the armed forces. No alternative civilian service was provided for them and the Republic of Korea argued that ‘this restriction is necessary for public safety, in order to maintain its national defensive capacities and to preserve social cohesion’. The Committee emphasized ‘that an increasing number of [...] States parties to the Covenant which JP v Canada, Communication 466/1991, UN doc CCPR/C/43/D/466/1991, para 4.2. Godefriedus Maria Brinkhof v the Netherlands, Communication 402/1990, UN doc CCPR/ c/48/D/402/1990, 30 July 1993. 38 Id, para 3.6. 39 Id, para 4.2. 40 Id, para 7.3. 41 Id, para 9.3. Note that the UN Committee relied on its General Comment 22 on Article 18, adopted in 1993. 42 Id, para 9.3. 43 Mr Yeo-Bum Yoon and Mr Myung-Jin Choi v Republic of Korea, Communications 1321/2004 and 1322/2004, UN doc CCPR/C/88/D/1321-1322/2004, 23 January 2007. 36 37

376  Constitutions and religion have retained compulsory military service have introduced alternatives to compulsory military service’. In addition, the Committee observed that: it is in principle possible, and in practice common, to conceive alternatives to compulsory military service that do not erode the basis of the principle of universal conscription but render equivalent social good and make equivalent demands on the individual, eliminating unfair disparities between those engaged in compulsory military service and those in alternative service.44

From the wording of the ruling, it is clear that the Human Rights Committee considers that all states party to the ICCPR, without exception, must grant the right of conscientious objection.45 Still within the UN, the UN Commission on Human Rights recognized the right to object to military service as a legitimate exercise of the right of freedom of thought, conscience and religion. The Commission also observed that the conviction to object can be based not only on religious grounds, but also on ethical or similar grounds. States should not allow conscientious objection solely on religious grounds, at the risk of discriminatory treatment. The Commission additionally called states to enact legislation allowing exemptions from military service based on profound convictions against armed service. Finally, it invited states to abstain from imprisoning conscientious objectors, emphasizing that the alternative service should be civilian and non-armed, with a public interest and without a punitive nature.46

4.

CONSCIENTIOUS OBJECTION AND REGIONAL HUMAN RIGHTS LAW

The Charter of Fundamental Rights of the European Union is the only regional human rights instrument that expressly mentions the right to conscientious objection, which is ‘recognized in accordance with the national laws governing the exercise of this right’ (Article 10(2)).47 In the Council of Europe, the existence of a fundamental right to conscientious of objection has been the subject of much debate. For years, numerous applications were brought before the former European Commission of Human Rights and the European Court of Human Rights (ECtHR), as before the UN Human Rights Committee, most applications were based on breach of the right to freedom of thought, conscience and religion which is enshrined in Article 9 of the European Convention for Human Rights (ECHR).

Id, para 8.4. For other references to the views of the UN Human Rights Committee on individual cases concerning conscientious objection to military service, see the webpage of the UN Human Rights Office of the High Commissioner, www​.ohchr​.org/​EN/​Issues/​RuleOfLaw/​Pages/​ConscientiousObjection​.aspx, last accessed 24 January 2018. 46 UN Commission on Human Rights Resolution 1989/59; UN Commission on Human Rights Resolution 1991/65; UN Commission on Human Rights Resolution 1993/84; UN Commission on Human Rights Resolution 1995/83; UN Commission on Human Rights Resolution 1997/117; UN Commission on Human Rights Resolution 2000/34; UN Commission on Human Rights Resolution 2002/45 and UN Commission on Human Rights Resolution 2004/35. 47 Note also that the European Parliament approved a Recommendation to the Council of 13 June 2013 on the draft EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief (2013/2082 (INI)). 44 45

Religious conscientious objection: a troubled path  377 In many cases, the former European Commission of Human Rights refused to recognize a derivative right to conscientious objection, stressing that the ECHR does not explicitly guarantee such a right which is not covered by the prohibition of forced labour (Article 4 of the ECHR). In 1966, for the first time, the Commission decided that an objector who refused to perform military and civilian service in Germany was not protected under Article 9 of the ECHR. The Commission stressed that each contracting state could decide whether to grant a right to conscientious objection.48 In several subsequent cases, the European Commission of Human Rights took the same line and defended a literal construction of Article 9 of the ECHR considering Article 4 of the ECHR.49 By contrast, the Parliamentary Assembly of the Council of Europe, as early as 1967, adopted Resolution 337, which states: 1. persons liable to conscription for military service, who, for reasons of conscience or profound conviction arising from religious, ethical, moral, humanitarian, philosophical or similar motives, refuse to perform armed service shall enjoy a personal right to be released from the obligation to perform such service [...]. 2. This right shall be regarded as deriving logically from the fundamental rights of the individual in democratic Rule of Law States which are guaranteed in Article 9 of the European Convention on Human Rights.50

It was not until 2011, in the famous Grand Chamber case of Bayatyan v Armenia,51 that the ECtHR ruled on the applicability of Article 9 of the ECHR to conscientious objectors. Mr Bayatyan, a Jehovah’s Witness, refused to perform military service, but agreed to alternative civil service. At the time, Armenian law did not provide for such alternative service. Mr Bayatyan was convicted of draft evasion and sentenced to prison. He argued that the ECtHR should decide the case, taking due account of the European consensus on the matter, as most member states had implemented a right of conscientious objection. Based on the ‘living instrument’ doctrine, the ECtHR departed from the position of the former European Commission of Human Rights and ruled that Article 9 of the ECHR applies where a refusal to military service is motivated by serious and insurmountable religious or other beliefs. In several subsequent judgments, the ECtHR held that Article 9 was violated in cases where a refusal to perform military service was based on serious personal convictions.52

48 Grandrath v Federal Republic of Germany App 2299/60 (Report of the Commission, 12 December 1966). 49 See, for instance, GZ v Austria App 5591/72 (decision of the Commission, 2 April 1973); X v Germany App 7705/76 (decision of the Commission, 5 July 1977); N v Sweden App 10410/83 (decision of the Commission, 11 October 1984); Peters v the Netherlands App 21132/93 (decision of the Commission, 30 November 1994). 50 Council of Europe, Cons Ass, Eighteenth Ordinary Session (Third Part), Texts Adopted (1967), reiterated by the Parliamentary Assembly in its Res 816 (1977), adopted on 7 October 1977; Collected Texts, Strasbourg, 1987, p 222. See also Recommendation R (87) (8) of the Committee of Ministers to Member States of the Council of Europe regarding conscientious objection to compulsory military service, 9 April 1987; Recommendation CM/Rec (2010)4 of the Committee of Ministers to Member States of the Council of Europe on human rights of members of the armed forces, 24 February 2010. 51 Bayatyan v Armenia App 23459/03 (ECHR, 7 July 2011). 52 Erçep v Turkey App 43965/04 (ECHR, 22 November 2011); Khachatryan and Others v Armenia App 23978/06 (ECHR, 27 November 2012); Feti Demirtas v Turkey App 5260/07 (ECHR, 17 January 2012); Buldu and others v Turkey App 14017/08 (ECHR, 3 September 2014); Savda v Turkey App

378  Constitutions and religion In other regional human rights jurisdictions, the right to conscientious objection has also been recognized under the guarantee of freedom of thought and religion. The American Convention on Human Rights, like the ECHR, explicitly enshrines freedom of conscience and religion (Article 12), but it does not mention a right of conscientious objection. In 2005, the Inter-American Commission on Human Rights (IACHR) decided the issue for the first time. Cristián Daniel Sahli Vera et al v Chile concerned a refusal to perform military service due to conscientious objection.53 In Chile, military service is compulsory and the law provides only for very specific exemptions in some religious instances. The IACHR extensively acknowledged the position of the UN Human Rights Committee, according to which a right to conscientious objection to military service is a legitimate exercise of freedom of thought, conscience and religions (Article 18 of the ICCPR). The IACHR also pointed out that the European human rights system, at the time, had a different stance on the matter.54 Taking stock of the controversy, the European Commission of Human Rights considered that the freedom of conscience and religion did not apply to a conscientious objector such as the applicant. The IACHR further stressed that compulsory military service is not prohibited under the Inter-American Convention and that states are free to grant a right to conscientious objection.55 Freedom of conscience and religion is also protected in the African Charter on Human and People’s Rights (Article 8). Therefore, the right to conscientious objection to military service may be derived from this provision, similar to the approaches now favoured by the UN Human Rights Committee and the ECtHR. However, the African Human Rights system has yet to be mobilized in this respect and there is no regional standard to define a right to conscientious objection to military service.56

5.

A GLOBAL JIGSAW

In human rights law, conscientious objection is strongly associated with the refusal to serve in the military forces and a legitimate exercise of the right to freedom of thought, conscience and religion. In general today, anyone – at least on paper – has the fundamental right to a legal alternative to military service, and states must offer some form of civilian public service or grant a complete exemption to conscientious objectors. However, the procedure for establishing conscientious objector status varies from country to country, and not every country has a distinct legal basis on the matter.57 Furthermore, in some countries conscientious objection is

42730/05 (ECHR, 12 June 2012); Tarhan v Turkey App 9078/06 (ECHR, 12 July 2012); Enver Aydemir v Turkey App 26012/11 (ECHR, 7 June 2016); Papavasilakis v Greece App 66899/14 (ECHR, 15 September 2016); Adyan and Others v Armenia App 75604/11 (ECHR, 12 October 2017). 53 Cristián Daniel Sahli Vera et al v Chile, Case 12219 (ICHR, 10 March 2005). 54 Id, p 9–20. 55 Id, p 20. 56 Andreas Speck, A Conscientious Objector’s Guide to the International Human Rights System 89–107 (2012). 57 See, for instance, the case of Russia: European Bureau for Conscientious Objection, On the Implementation of the Right to Conscientious Objection to Military Service (2016 report). More generally in Europe, see European Bureau for Conscientious Objection, Report on Conscientious Objection to Military Service in Europe (2017), www​.ebco​-beoc​.org/​reports, last accessed 24 January 2018. Worldwide, see United Nations, supra note 7, at 48 ff.

Religious conscientious objection: a troubled path  379 still a criminal offence. In 2017 Amnesty International singled out South Korea as the country in which more people are imprisoned for conscientious objection than anywhere else in the world.58 UN bodies have repeatedly rejected the reasons put forward by the government of South Korea – specifically, that conscientious objectors would jeopardize national security and undermine social cohesion against a backdrop of vivid tension between North and South Korea. Recently, an increasing number of district court judges are using ‘not guilty’ verdicts based on freedom of conscience ‘to emphasize the need for a social consensus’.59 Meanwhile, the Supreme Court and the Constitutional Court are once again60 reviewing this matter, while lawmakers are still hesitant to introduce an alternative military service system.61 The situation in Israel confirms that the boundaries of military conscientious objection can be tricky to draw. Since the state’s foundation, there has been a long history of people refusing to perform military service in Israel. With a growing amount of military energy devoted to the occupation of the West Bank and Gaza Strip, as well as safeguarding settlements erected on Palestinian land, the phenomenon of soldiers remaining in the army but refusing particular orders or postings has become widespread. The issue of whether these selective refusals fall within the conscientious objection framework is still hotly debated in Israel.62 In fact, very few countries recognize selective conscientious objection.63 Outside the military, the rhetoric of ‘conscientious objection’ has also developed with regard to the contentious topic of abortion.64 With few exceptions, a refusal clause – most commonly known as a ‘conscience clause’ in Europe – is enshrined in European legal systems, although it takes different forms (eg, statutory law, medical policies or codes of ethics).65 58 Amnesty International, The Torment Goes On. Story of a South Korean Conscientious Objector (29 September 2017), www​.amnesty​.org, last accessed 24 January 2018. 59 Kim Min-kyung, Three More Conscientious Objectors Found Not Guilty, Hankyoreh (12 June 2017), http://​english​.hani​.co​.kr/​arti/​english​_edition/​e​_national/​798476​.html, last accessed 24 January 2018. See also Steven Borowiec, South Korean Conscientious Objectors Keep Up Fight Against Military Service, Los Angeles Times (26 June 2015),  www​.latimes​.com/​world/​asia/​la​-fg​-korea​-conscientious​ -objectors​ -20150626​ -story​ .html, last accessed 24 January 2018; Kim Min-kyung, Acquittals of Conscientious Objectors Rise Sharply in 2017, Hankyoreh (25 September 2017), http://​english​.hani​.co​ .kr/​arti/​english​_edition/​e​_national/​812442​.html, last accessed 24 January 2018. 60 Conscientious objectors had unsuccessfully appealed several times to the Supreme Court of South Korea since 1969. They also lost at least two cases before the Constitutional Court on 26 August 2004 and 30 August 2011. For more details and legal references, see South Korea: Constitutional Court Again Denies Right to Conscientious Objection, blog posted on War Resister’s International (5 September 2011), www​.wri​-irg​.org/​en/​story/​2011/​south​-korea​-constitutional​-court​-again​-denies​-right​ -conscientious​-objection, last accessed 24 January 2018. 61 Kim Hyung-bin, Decision On Objectors Near, Says Constitutional Court, The Korea Times (18 March 2018), www​.koreatimes​.co​.kr/​www/​nation/​2018/​03/​205​_245790​.html, 24 January 2018. 62 Amir Paz-Fuchs, The Fallacies of Objections to Selective Conscientious Objection, 36(3) Israel Law Review 111–43 (2002). 63 United Nations, supra note 7, at 58–59. This report mentions Australia, Germany and Norway. 64 On this debate, see Bribosia and Rorive, supra note 14, at 392–413. Note that the next two paragraphs are based on this paper (at 394–95). 65 In EU member states, conscientious objection to performing abortion is granted by law, except in countries such as Sweden, Finland, Bulgaria and the Czech Republic. Within the Council of Europe, the same applies, with a few exceptions such as Norway, Switzerland and Iceland. The lack of express regulation does not mean that there is no use of conscientious objection in practice. See Anna Heino, Mika Gissler, Dan Apter and Christian Fiala, Conscientious Objection and Induced Abortion in Europe, 18(4) Eur. J. Contraception & Reproductive Health Care 231–33 (2013).

380  Constitutions and religion Today, human rights defenders are denouncing the worrying trend of the erosion of abortion rights worldwide, which is putting women’s rights and gender equality at risk.66 Conscientious objection in reproductive healthcare can create structural obstacles to effective access to sexual and reproductive rights.67 Numerous issues stem from the fact that the use of conscientious objection is highly unregulated in many jurisdictions.68 Doubts persist regarding its scope – especially as regards who is entitled to object and with respect to what kind of activity. This is particularly salient in a context in which hospitals and corporations are also claiming a right to conscientious objection.69 Then again, military service is the only area in which conscientious objection has been recognized as a human right.70 As the ECtHR puts it, freedom of religion does not protect every act motivated or inspired by a religion or belief,71 and medical doctors cannot rely on their faith to escape from professional duties. In other words: States are obliged to organize their health service system in such a way as to ensure that the effective exercise of freedom of conscience by health professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.72

66 Nils Muižnieks, Women’s Rights and Gender Equality in Europe (2016), Human Rights Comment – CoE Commissioner for Human Rights’ Blog, § 48–53; Nils Muižnieks, Protect Women’s Health. At the global level, see the retrogressive measures denounced by the UN Committee for Economic, Social and Cultural Rights (CECSR) in its General Comment 22 on the right to sexual and reproductive health (Article 12 of the CECSR), 2 May 2016, E/C.12/GC/22, para 2. In the United States, see, for instance, House Bill 2 enacted in 2013 in Texas and struck down by the Constitutional Court in Whole Woman’s Health v Hellerstedt, 579 US (2016). 67 See the seminal case of (IPC)nts the European legislations and the disparities in the application of the different national legislationsargir une fois International Planned Parenthood Federation European Network (IPPF-EN) v Italy, Complaint no. 87/2012 (ECSR, decision adopted on 10 September 2013 and delivered on 10 March 2014). On this case, see Emmanuelle Bribosia, Ivana Isailovic and Isabelle Rorive, in Rewriting Integrated Human Rights (Eva Brems ed., 2017), 261–85. 68 See Social Health and Family Affairs Committee, Report on Women’s Access to Lawful Medical Care: The Problem of Unregulated Use of Conscientious Objection (Rapporteur: Christine McCafferty) (2010), www​.assembly​.coe​.int/​committeedocs/​2010/​20100621​_aah​%202010​_18​.pdf, last accessed 24 January 2018. 69 Ruth Fletcher, Conscientious Objection and Harm Reduction in Europe, in T-388/2009. Conscientious Objection and Abortion. A Global Perspective on the Colombian Experience (Women’s Link Worldwide and O’Neill Institute for National and Global Health Law 12346, 2014), Online: Queen Mary School of Law Legal Studies Research Paper, 228/2015, https://​ssrn​ .com/​abstract​=​2568409, last accessed 24 January 2018, p. 123; Bribosia and Rorive, supra note 16. 70 UNCCPR, General Comment No. 22: Article 18 (Forty-eighth session, 1993), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies (1994), UN doc HRI/GEN/1/Rev.1 at 35, § 11; Bayatyan v Armenia App 23459/03 (ECHR (GC), 7 July 2011); OHCHR, Conscientious Objection to the Military Service (2012), www​.ohchr​.org/​Documents/​ Publications/​ConscientiousObjection​_en​.pdf, last accessed 24 January 2018. 71 See, for instance, Pichon and Sajous v France App 49853/99 (ECHR, 2 October 2001). See also Adriana Lamacek, Conscientious Objection in Reproductive Health Care: Analysis of Pichon and Sajous v France, European Journal of Health Law 7 (2008). 72 RR v Poland App 27617/04 (ECHR, 26 May 2011), para 206. See also P and S v Poland App 57375/08 (ECHR, 30 October 2012), para 106.

Religious conscientious objection: a troubled path  381 And since a 2016 decision of the European Committee of Social Rights, it is clear that states parties to the European Social Charter are under no positive obligation to provide a right to conscientious objection for healthcare workers under the right to health.73 With the development of equality and anti-discrimination law based on religion and belief,74 it is striking to note the extent to which the use of conscientious objection is increasing, as it is somehow muddled with the concept of reasonable accommodation: Reasonable accommodation is based on a fundamental observation: some individuals, because of an inherent characteristic they have, such as disability or religion, are prevented from performing a task or from accessing certain spaces in conventional ways. Since society is organised primarily on the basis of people who do not share those traits, the former may be unable to access employment, services, or other activities.75

As the wording clearly indicates, the duty to accommodate has its limits: it must be ‘reasonable’, meaning that it cannot impose a disproportionate burden on the person that must bear it or on the rights of others.76 So far, the ECtHR has upheld the legitimacy of a public policy that requires employees to act in a non-discriminatory way despite their religious beliefs. This policy falls within the wide margin of appreciation that national authorities deserve when they strike a balance between competing rights.77 There was no obligation for the United Kingdom to accommodate the religious belief of a civil servant (Mrs Ladele) who was fired from the London Borough of Islington after repeated refusals to register same-sex civil partnerships based on her religious view of marriage. On the other hand, there is an obligation for the state ‘to introduce appropriate exceptions to the rule barring persons convicted of a serious crime from the profession of chartered accountants’.78 This case concerned Mr Thlimmenos, a Jehovah’s Witness who, despite having successfully passed the relevant exam, was refused appointment as a chartered accountant in Greece on the ground that he had been convicted five years earlier for refusing to do military service for religious reasons. Beyond the issue of civil servants who raise conscience claims to avoid participating in the celebration of same-sex unions, a real concern is the detrimental effect that accommodation policies could have on the overall operation of non-discrimination law.79 In the past few years, an emblematic line of cases in the United Kingdom, the United States and Canada has concerned for-profit companies with no religious corporate object that refused to provide services to LGBT customers based on the Christian beliefs of their managers.80 So far, most national courts have held that those denials of services based on sexual orientation were discriminatory;

73 Federation of Catholic Families in Europe (FAFCE) v Sweden, Complaint 99/2013 (ECSR, 17 June 2015). The right to health is enshrined in Article 11 of the European Social Charter. 74 In Europe, see Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation (OJ L 303 of 2 December 2000, at 16). 75 Emmanuelle Bribosia, Julie Ringelheim and Isabelle Rorive, Reasonable Accommodation for Religious Minorities: A Promising Concept for European Antidiscrimination Law?, 17 Maastricht Journal of European and Comparative Law 137–38 (2010). 76 Bribosia and Rorive (eds.), supra note 15. 77 Eweida and Others v United-Kingdom App 48420/10, 59842/10, 51671/10 and 36516/10 (ECHR, 15 January 2013), paras 104–06. 78 Thlimmenos v Greece App 34369/97 (ECHR, 6 April 2000), para 48 (our emphasis). 79 This point was already made in Bribosia and Rorive, supra note 14. 80 Many cases are discussed in Bribosia and Rorive, supra note 16.

382  Constitutions and religion but issues relating to free speech are still pending. Unequal treatment occurred, even if those customers could obtain the same service elsewhere with no additional cost. The crucial aspect of these cases is the injury to dignity and the humiliation suffered by a minority which has experienced structural prejudice for many years. There are major difficulties in trying to transpose the debate on conscientious objection beyond the military context. In this process, it is key to keep in mind the specific features of the military context. First, the issue arises with regard to military service which is mandatory by law. Second, a conscientious objector refusing to perform his or her legal duty to the military is in a particularly vulnerable situation, as he or she will often face criminal charges. Third, there is almost no impact on the rights of others when conscientious objection is raised in the military context. These aspects should be considered when the rhetoric of conscientious objection is used towards groups that have been fighting against structural discrimination for years. Otherwise, there is a significant risk that the human rights battle fought by military conscientious objectors will take a troubled turn and equality law will begin to unravel.

22. Constitutional law and the integration of Islam in Europe Christian Joppke

1. INTRODUCTION The paradox of Islamic integration in Europe is that, from a legal-institutional point of view, it has generally been a success, as this chapter shall demonstrate; but that it has also occurred within a context of persistent public hostility. Kai Hafez suggests that “liberal society” resembles Dr. Jekyll and Mr. Hyde – “respectable at first sight but essentially barbaric;” its institutions are inclusive or even multicultural, but its people are deeply mired in “Islamophobia.”1 A recent opinion poll conducted in various European countries revealed that at least one-third of interviewees considered Islam as “very threatening” or “rather threatening” – from the still moderate Swedes (35 percent) to the distinctly less moderate Swiss, Germans and Spanish, the majority of whom (52 percent, 53 percent and 61 percent, respectively) felt to various degrees threatened by Islam.2 Interestingly, the French and British are comparatively moderate in this respect: “only” 42 percent and 37 percent, respectively, share a threat perception. However, when asked whether “Islam fits into the Western world,” 57 percent of French and 46 percent of British also answered in the negative. Some 65 percent of Spanish, 60 percent of Swiss and 52 percent of German interviewees likewise gave negative responses; and even close to half of the generally more Islam-friendly Swedish interviewees (48 percent) were skeptical in this regard. The data suggests that, however successful Islam’s legal integration may have been, its cultural integration has trailed far behind – not only in the view of the non-Muslim majority society, but also from the perspective of Muslims themselves. Perhaps the most significant marker of difference is that Muslims hold far more fervently religious views than non-Muslim Europeans – often more so in the second immigrant generation. This widens the rift between Western Europe’s 17 million Muslims – most of whom are immigrants or the descendants of immigrants – and their strongly secularized host societies. A study by Ruud Koopmans of first and second-generation Muslim immigrants in five European countries, including the “big three” (Germany, Britain and France), found that no fewer than 44 percent held “fundamentalist” attitudes3 – the latter defined as agreement with the following statements: (1) “Muslims should return to the roots of Islam;” (2) “There is only one interpretation of the Quran and every Muslim must stick to that;” and (3) “The Rules of the Quran are more important than the laws of (the state).”4 In comparison, under 4 percent of “native Christians” agreed with the

Kai Hafez, Islam in “Liberal” Europe: Freedom, Equality, and Intolerance (2014). Kai Hafez and Sabrina Schmidt, Die Wahrnehmung des Islam in Deutschland (2015). 3 Ruud Koopmans, Religious Fundamentalism and Hostility against Out-groups, 41(1) Journal of Ethnic and Migration Studies 43 (2015). 4 Ibid., at 40. 1 2

383

384  Constitutions and religion analogous statements pertaining to their creed and could thus be considered “fundamentalist.” No wonder, then, that Muslims’ religious conservatism is accompanied by strong “out-group hostility:” over half of the Muslims surveyed (54 percent) agreed with the statement that the “West is out to destroy Muslims,” which suggests that European natives’ “Islamophobia” is mirrored by European Muslims’ “Occidentophobia.”5 Comparing Europe with the less conflicted North American context, Koopmans concludes: In Europe, therefore, a strongly secularized native population is confronted with a religiously conservative Muslim population, resulting in a large gap in religious attitudes between Muslims and natives. This is likely to be an important reason – next to the larger numbers and lower socioeconomic status of Muslims – why Muslims and Islam have become much more politically contested in Europe than in North America.6

When analyzing the deficit in Muslim cultural integration, both factors – Europeans’ Islamophobia and Muslims’ Occidentophobia – must be considered and calibrated. This is the approach in the most sophisticated study so far on the issue: “Why Muslim integration fails,” by Claire Adida, David Laitin and Marie-Anne Valfort.7 They argue that there is a “discriminatory equilibrium,” in which both host populations and Muslims play independent but “mutually reinforcing” parts. Yes, host populations are guilty of irrational “taste-based discrimination,” in addition to “statistical discrimination” that may be rationalized as a response to a real problem or threat; but Muslims, through their indigenous religious and gender norms, also self-segregate. Accordingly, there is “joint responsibility” for the failure of Muslim integration both in France – the primary focus of their study – and in Western Europe at large: “Muslims behave in a way that induces statistical discrimination, while rooted French distaste induces Muslims to sustain practices that the French find problematic.”8 While the difficulties of Muslim cultural and socioeconomic integration – whether due to discrimination, self-segregation or both – have been the subject of much discussion in the social science literature, the legal integration of Islam qua religion has been paid far less attention. As I shall argue, the picture here is more positive. Why? First, a liberal state adopts a principled (although not always actual) neutrality toward religion: no religion – not even that of the majority – may be favored. This even applies to states with an established church, such as England and most Scandinavian countries. Established church regimes are clearly more favorable environments for Islamic integration than strict separation regimes, like France, which has been the site of seemingly endless Islamic integration struggles. This is because, in an established church regime, certain privileges and public functions granted to the majority religion – such as ex officio seats for Anglican bishops in the British House of Lords – cannot be indefinitely withheld from clamoring minority religions. Even if there is a state church, the benchmark of religious minority integration is nothing less than equality. This is a specificity of Europe and the West in general, which invented the idea of the secular or liberal state in response to the intra-Christian warfare of the Reformation period. Certainly, establishment, as in England, is a status that no minority religion is ever likely to attain; and as yet, the British Ibid., at 53. Ibid., at 52. Claire Adida, David Laitin and Marie-Anne Valfort, Why Muslim Integration Fails Christian-Heritage Societies (2016). 8 Ibid., at 77–78. 7 5 6

in

Constitutional law and the integration of Islam in Europe  385 head of state remains “defender of the faith” (“the” referring to the Anglican faith). However, the fact that monarch-in-waiting Prince Charles has vowed to become “defender of faiths” (in the plural) signals a wind of change which may blow away what today have become vestigial and ceremonial majority privileges. Critics argue that liberal state neutrality is a myth that camouflages a tacit preference for Christianity. Saba Mahmood finds that “secularism” itself – the separation of religion and state – has “historically entailed the regulation and re-formation of religious beliefs, doctrines, and practices to yield a particular conception of religion (that is largely Protestant Christian in its contours).”9 The modern concept of “religion,” she argues, understood as “a set of propositions in a set of beliefs to which the individual gives assent,”10 is Protestant. Accordingly, if secular law protects religion, it protects mainly the Christian-Protestant variant. By contrast, a religion such as Islam, which – in her view – stresses orthopraxy over belief, is disadvantaged. However, this unduly exoticizes Islam, which of course is “belief;” and it glosses over the fact that modern state constitutions protect religious beliefs and practice, at the individual and collective level. Finally, critics make much of the fact that, in order to determine what a “religion” is (if only for the purpose of applying religious freedom clauses to individual claims), states adopt the position of quasi-theologians, thus abandoning their neutrality.11 This again is exaggerated, because in this tricky terrain, there has been a trend for states to rely more on subjective than objective definitions of religion, as provided by religious actors themselves. Alongside the principle of liberal state neutrality, an even more foundational factor in legal integration is the role of law itself. In particular, one function of constitutional law is to protect those who lose out in the political process and thus have no other recourse available: the structural minorities in society. As John Hart Ely puts it, “Courts should protect those who can’t protect themselves politically.”12 Constitutional law is a higher-level law that is immune to majority preferences in society, which are expressed through the political institutions of representative democracy. Constitutional law establishes “rights” in the true sense, as trumping democratic majority preferences,13 and is thus especially attuned to the protection of minorities. Importantly, in most cases these are individual, not collective rights, forfeiting the need for explicit “multiculturalism” schemes (as I have argued elsewhere, individual rights are no less multicultural in effect).14 This is not to say that legal integration is unaffected by the political process. Fueled by Islamist terrorism, “integration” has been a major public policy concern since the early 2000s. This is reflected in the ubiquitous “civic integration” courses and tests that have been introduced in many European countries for immigrants before arrival, when seeking residence and when obtaining citizenship. Failure to attend the courses or pass the tests jeopardizes one’s residence or new citizen status.15 Saba Mahmood, Religious Reason and Secular Affect, 35 Critical Inquiry 858 (2009). Ibid., at 843. 11 Saba Mahmood, Religious Difference in a Secular Age (2016); see also Winnifred Fallers Sullivan, The Impossibility of Religious Freedom (2009). 12 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 152 (1980). 13 Ronald Dworkin, Rights as Trumps, in Theories of Rights (Jeremy Waldron ed., 1984). 14 Christian Joppke, Is Multiculturalism Dead? Crisis and Persistence in the Constitutional State (2017). 15 See Sara Wallace Goodman, Immigration and the Politics of Membership in Western Europe (2014).

9

10

386  Constitutions and religion From a political perspective, certain aspects of legal integration are more contested than others. Here it is helpful to distinguish between two different types of religious minority claims: “parity” claims and “exemption” claims.16 Parity claims seek to bestow religious Muslims with the same rights and privileges that the Christian majority already enjoys – they are an “extension of existing church-state arrangements for Christian denominations,” as Carol and Koopmans put it.17 By contrast, exemption claims seek different treatment, in deviation from existing arrangements, to accommodate religious minority norms. Islamic parity claims are difficult to refute and are steadily advancing, even in a hostile political climate. This is a unique feature of secularized post-Christian societies, which require state neutrality toward religion. It doesn’t matter whether this neutrality is negative – as in the French or American separationist regimes, which exclude all religions from the ambit of the state; or positive – as in Germany, which includes religions in public affairs, but on the basis of their equality. Anti-Islam polemicists like to point out that this stance of equality is not found in Islamic majority societies, where the best a non-Muslim can hope for is second-class dhimmi status, and where religious minorities – including intra-Islamic ones – are often deprived of any rights and persecuted.18 While one may not like the messenger, the message is nonetheless in correspondence with facts. By contrast, exemption claims are more vulnerable to political backlash and interference, particularly in the context of heightened public concern about “failed” Muslim integration. However, parity claims are not without their own problems, though in the opposite direction: they may call into question established religious privileges that increasingly appear anachronistic in a secular and pluralistic society, in which the privileges enjoyed by some constitute “discrimination” to others – particularly the non-religious majority. It is often forgotten that the reverse side of secularization is increased autonomy and freedom from state interference on the part of religious organizations.19 In Germany, for instance, religious organizations – even if active in non-creedal sectors such as health or welfare – may hire and fire in openly discriminatory ways; one famous case involved a Catholic-clinic chef who was fired for divorcing his wife.20 Religious organizations’ right to discriminate, which is contested already, might become even more hotly contested if, say, an Islamic kindergarten were to fire a teacher

16 See Sarah Carol and Ruud Koopmans, Dynamics of Contestation Over Islamic Religious Rights in Europe, 13(2) Ethnicities 165 ff. (2013); Matthias Koenig, Gerichte als Arenen religiöser Anerkennungskämpfe, in Religionskonflikte im Verfassungsstaat (Astrid Reuter and Hans G. Kippenberg eds., 2010). A kindred typology can be found in Dieter Grimm, Conflicts between General Laws and Religious Norms, 30(6) Cardozo Law Review 2369 ff. (2009). See also Silvio Ferrari, Islam and the European System of State-Religions Relations Throughout Europe, in Cultural Diversity and the Law (Marie-Claire Foblets et al. eds., 2010), who distinguishes between three types of “problems” raised by Islam: a first type that is common to all religions and is easiest to resolve by simply extending existing privileges to Islam (e.g. the right to build places of worship); a second type that is shared by only some religions and where an extension is less automatic (e.g. the right to ritual slaughter); and a third type that is specific to Islam and thus most difficult to resolve (he mentions here the creation of an Islamic “church” umbrella as a presupposition to be integrated into existing church-state arrangements). 17 Carol and Koopmans, supra note 16, at 167. 18 See Rita Breuer, Im Namen Allahs: Christenverfolgung im Islam (2015). 19 René Rémond, Religion et société en Europe au XIXe et XXe siècles (1998). 20 See SVR (Sachverständigenrat deutscher Stiftungen für Integration und Migration), Viele Götter, ein Staat. Jahresgutachten 2016 124–34 (2016).

Constitutional law and the integration of Islam in Europe  387 for not wearing a headscarf. In a nutshell, Islamic inclusion could put established church privileges at risk (see below). In the following, I flesh out the different logics and dynamics of parity claims and exemption claims, with a specific (but not exclusive) focus on Germany. This focus is justified by the fact that Germany is home to Western Europe’s largest Muslim population, already numbering some 3.5 million before the Syrian refugee crisis of 2015 added another million. Furthermore, the paradox of advanced legal integration in a context of unwavering public hostility to Islam is perhaps more pronounced in Germany than in other countries. Note that Hafez has called the Germans “champions of Islamophobia”21 – a claim which may be exaggerated (particularly in light of its inclusive approach to refugees), but is not entirely unfounded.

2.

EXPANDING PARITY CLAIMS

To understand parity claims, it is helpful to distinguish between two different paths of legal integration: individual rights and collective recognition. These reflect the duality of religion as an individual faith whose rituals are nonetheless practiced collectively.22 Both paths proceed at different speeds and at different levels of inclusiveness. The individual rights path is immediate and symmetric, including everyone at once. It is activated by constitutional religious freedom clauses that apply to all believers, whatever their religion. By contrast, the collective recognition path is marked (or marred) by inertia and asymmetry. Its logic is corporatist, including only those who are strong and loud. Each European state has its own particular church-state regime with deep historical roots in late-medieval state building. In Europe, for over a millennium, state and church have competed for the control of souls and territory; and for a while, even the church had an army (indeed, the Vatican still has the Swiss Guard). In the process, compromises were made that are sticky and not easily extended to newcomers. While the notion of (neo)corporatism tends to be associated with the representation of industrial interests, especially labor, church and religious interests were the historical first.23 However, there is still a need for these corporatist regimes to treat all religions equally, because there are only two ways for the liberal secular state to address the issue of religion: either expel all religions equally from the ambit of the state, which is the French-American solution; or include all religions equally in the public realm, which is the German solution. 2.1

The Individual Rights Path

Article 4 of the German Basic Law protects the “inviolability” of the “freedom of belief,” as well as the “undisturbed practice of religion.” One of the strongest rights protections in the German Constitution, it applies to the private and public exercise of religion by individuals and groups, thus disproving the allegation of a Christian-Protestant bias of secular law. Moreover, it is a right enjoyed by all “persons” in the German territory, not only by “citizens” Hafez, supra note 1. See Christian Joppke, Europe and Islam, 37(6) West European Politics 1325–31 (2014). 23 For an application to Islam incorporation in Europe, see Jonathan Laurence, The Emancipation of Europe’s Muslims (2012). 21 22

388  Constitutions and religion of the state. It is granted universally to members of all religions and thus is perfectly symmetric. As a constitutional principle, it can be limited only at the level of the Constitution itself, by competing constitutional rights or principles. Finally, like all fundamental rights clauses in the Basic Law, the religious freedom clause is endowed with Ewigkeitsgarantie – no parliamentary majority, not even an absolute majority, could ever remove it. Commenting on the extensive religious freedoms that Muslims enjoy on the basis of this article, one Muslim leader has described Germany, tongue in cheek, as “more Muslim than Saudi-Arabia.”24 The power of Article 4 has played out in the notorious headscarf conflict which has erupted in Germany like in many other places in Europe. Headscarf restrictions – which have been introduced in a growing number of European countries – are often regarded as proof of the insensitivity of European secular law to the claims of minority religions, or even of a latent Christian bias of European nation states. At the regional level, the European Court of Human Rights (ECtHR) has unfailingly upheld national headscarf restrictions, arguing that national courts and legislatures have a wide “margin of appreciation” in dealing with this sensitive issue, on which there is no consensus among European states.25 However, at the national level, with the exception of France, the situation is more positive. In private workplaces, the religious rights of employees have in most cases trumped the profit interests of their employers, which might arguably be impaired by, for example, a headscarf-wearing salesperson in the perfume section of a department store, which was a celebrated case in German labor law (but see below). The most successful restrictions have been in the public sector, especially schools. In Germany, the right of pupils to wear a headscarf has never been in question – this already follows from Germany’s religion-friendly church state regime of “open neutrality.” The issue has rather been whether teachers should also be allowed to wear a headscarf. In its famous Ludin decision of September 2003,26 the German Constitutional Court decided that this was up to the sub-federal states (Länder) to decide, commensurate with German federalism. The move to a French-style strict separation regime was thus entirely at the discretion of the state legislatures. However, as long as there was no statutory law prohibiting the headscarf (which, the court insisted, would have to apply to all religious symbols), the religious freedom clause of Article 4 protected teachers who wear headscarves – in this case, an Afghan-origin naturalized German citizen. In response to this ruling, most German Länder quickly passed laws that prohibit public schoolteachers from wearing religious symbols in the classroom. Controversially, some of these laws – as in Bavaria, Baden-Württemberg and North-Rhine Westphalia – include exemptions for Catholic nuns. This is based on the contorted assumption that the nuns’ habit is not religious, but cultural – an expression of “Christian-Occidental” majority culture that public schools have not only the license, but also the mandate to pass on to the next generation. While several courts – including the Land constitutional court of Hesse and the Federal Labor Court – have upheld this Christian favoritism, it had always been unconstitutional; to repeat, the Federal Constitutional Court’s Ludin decision stipulated that any Land-level restrictions had to apply equally to all religions.

Mathias Rohe, Application of Shari`a Rules in Europe, 44(3) Die Welt des Islams 334 (2004). See Christian Joppke, Double Standards? Veils and Crucifixes in the European Legal Order, 54(1) European Journal of Sociology 97 ff. (2013). 26 2 BvR, 1436/02, September 24, 2003. 24 25

Constitutional law and the integration of Islam in Europe  389 In January 2015 the Federal Constitutional Court reversed course,27 declaring that “teachers are allowed to wear a headscarf,” whatever a Land might think about it, because of the power of Article 4. In particular, the court declared that the Länder restrictions were “disproportionate” in seeking to avert a hypothetical, “abstract” threat to school peace. Instead, it ruled that a headscarf restriction is permissible only if there is a “concrete threat,” whose existence must be proved on a case-by-case basis. This could be decided only by the school itself – that is, at the local level. Interestingly, the Islamic headscarf was thus demoted from “always problematic” to at best “sometimes problematic,” which bears testament to a significant mainstreaming of Islam in the past decade or so. Certainly, the Ludin court had already exhibited a relaxed attitude to the headscarf, citing Turkish-French Islam scholar Nilüfer Göle’s assertion of its “multiple meanings.” This liberal course was continued here: a “general conclusion” that the headscarf “violates human dignity, equality, etc.” is “impermissible.”28 Indeed, the court went further and declared unconstitutional the Christian exemptions in the religious symbol restrictions of some Länder, which patently violated the constitutional equality principle (Article 3 of the Basic Law). The “privilege” of “representing” the “Christian and Occidental educational and cultural values or traditions” amounted to an “equality-impairing discrimination on the basis of faith and religious views.”29 This repudiated the Federal Labor Court’s strange distinction between the (permissible) “representation” (Darstellung) of the named values and traditions and their (impermissible) “profession” (Bekundung). “The court has – thankfully – clarified without a doubt that there is no space in the Basic law for the privileging of Christianity,” said one legal commentator.30 The German Constitutional Court’s 2015 headscarf decision was a milestone in the accommodation of this single-most contested Islamic claim in the West through constitutional law. However, in several respects it was also a perplexing decision that attracted significant criticism from some constitutional lawyers, and from two dissenting justices.31 At the procedural level, how could the First Senate of the court so blatantly contradict the earlier decision of the same court’s Second Senate, which normally would require the convocation of both chambers – the so-called “Plenum”?32 Most importantly, the decision completely disregarded competing constitutional rights – that is, the negative religious rights of children and the educational rights of their parents – while absolutizing the right to religious freedom of the teacher. This teacher, however, was a civil servant, with a special professional commitment to uphold the neutrality mandate of the state, which might require her to moderate her personal religious leanings in respect of the office. Thus, the rights of primary school children, who were forcibly exposed to the power of the state through their obligation to attend school, were slighted; while the rights of teachers qua citizens, who had voluntarily sought proximity to the state through their employment, were absolutized. This is problematic. Conversely, if a local headscarf 1 BvR 471/10 and 1 BvR 1181/10, January 27, 2015. Ibid., para. 118. 29 Ibid., para. 123. 30 Ute Sacksofsky, Kopftuch als Gefahr – ein dogmatischer Irrweg, 13 Deutsches Verwaltungsblatt 808 (2015). 31 See Sacksofsky, supra note 30; Hans Michael Heinig, Ein neues Kapitel in einer unendlichen Geschichte?, 10 Göttinger E-Papers zu Religion und Recht (GöPRR) (2015); Christine Langenfeld, Fängt der Streit um das Kopftuch jetzt erst an?, 60 Zeitschrift für evangelisches Kirchenrecht 420 ff. (2015). 32 See Heinig, supra note 31. 27 28

390  Constitutions and religion conflict did erupt, this would give free rein to third parties (disgruntled students or parents) who might have artificially provoked the conflict, contradicting the established jurisprudence that in such cases the Störer (disturber) is always to blame, and never the victim. In this way, the “scope of the exercise of basic rights was placed under the proviso of being accepted by Third Parties.”33 From this perspective, the teacher was suddenly the victim. Last but not least, as pointed out by the teachers’ associations that strongly opposed the decision, local schools might become overburdened with the responsibility thrown on them by the state, leading to regional disparities between calm and conflicted areas that would undermine the rule of law and orderly pedagogical business. The German Constitutional Court’s 2015 liberal line was subsequently affirmed in decisions involving private kindergarten teachers34 and, more delicately (because touching on the state’s sovereignty function), apprentice justices.35 By contrast, two recent rulings of the Court of Justice of the European Union (CJEU) seem to point in a different direction. In these first-ever decisions on religious discrimination under the 2000 EU Employment Equality Directive, the CJEU first held that a headscarf-wearing receptionist in a Belgian firm, whose work involved direct client contact, violated the firm’s official neutrality policy.36 Accordingly, the employee’s dismissal did not constitute “direct discrimination” under EU law, because the firm’s policy applied to all religions equally. Moreover, as the dismissal was in pursuit of a “legitimate aim” on the part of the employer – in this case, a neutrality policy in service of the entrepreneurial freedom to maximize profit – it did not constitute unlawful “indirect discrimination.” This decision had the paradoxical result (at least for Germany, as an EU member state) of establishing a stricter regime for regulating religion in the private sector than in the public sector, which one would presume to be more dependent on the liberal neutrality principle.37 However, in effect, the CJEU’s decision matters little, because most employers – at least in Germany – tend to tolerate Islamic headscarves in the workplace. Indeed, since a landmark 2002 decision of the German Federal Labor Court in a case involving an employee who worked in the perfume section of a department store, which required the demonstration of a “concrete disturbance of the work peace (Arbeitsfrieden)” to impose a valid headscarf restriction, German firms have become “rather liberal with respect to the headscarf,” as one labor lawyer puts it.38 In a second decision issued on the same day, the CJEU held that contingent “customer preferences,” unrelated to the objective nature of the work to be performed, were not a sufficient reason to fire a French design engineer who had insisted on wearing a headscarf. The CJEU declared this to be a case of unlawful direct discrimination.39 Taken together, these decisions of the CJEU suggest that “a ban on the Islamic hijab in the workplace will amount to unjustifiable direct discrimination [...], unless it relies on a company neutrality policy, in which case it

See Langenfeld, supra note 31, at 427. 1 BvR 354/11, October 18, 2016. 35 2 BvR 1333/17, January 14, 2020. 36 CJEU, Samira Achbita v. G4S Secure Solutions NV, C-157/15, March 14, 2017. 37 See Helen Bubrowski, Unternehmerische Religionsfreiheit, Frankfurter Allgemeine Zeitung (March 14, 2017). 38 Cited in Alexander Hagelüken et al., Deutsche Firmen verzichten auf Richtlinien zum Tragen von Kopftüchern, Süddeutsche Zeitung (March 15, 2017). 39 CJEU, Asma Bougnaoui v. Micropole SA, C-188/15, March 14, 2017. 33 34

Constitutional law and the integration of Islam in Europe  391 will be characterized as justifiable indirect discrimination.”40 While admittedly there are some internal inconsistencies in both CJEU decisions,41 they seem to be a reasonable compromise between religious rights and other rights – in this instance, the right to entrepreneurial freedom – in a complex society; they do not shift into reverse gear the constitutional empowerment of Islam in Europe. 2.2

The Collective Recognition Path

Whereas the individual rights path is immediate and symmetric, the collective recognition path, which follows the logic of corporatism, is marked by inertia and asymmetry. Achieving equality here takes much longer and may perhaps be impossible. Moreover, the collective recognition path is not available in a strict separation regime. In principle, the latter is characterized by a “wall of separation” (T. Jefferson) between the state and organized religion. In reality, the only true separation regime is that created by the “Establishment Clause” in the First Amendment to the U.S. Constitution. By contrast, France, despite its reputation as the archetype of a “laicist” separation regime, notoriously violates the separation norm with its persistent “Gallican Church” tradition, which involves the state in the “controlling and regulating and supporting [of] recognized religions,”42 lately with respect to Islam also. Silvio Ferrari43 argues that the “cooperation between states and religion” specific to the “European-model” is “selective” in nature: the state cooperates only with those religions that agree to its liberal-democratic values and principles. This makes true “symmetry” impossible. Moreover, the “neutral” state would have to abandon its neutrality and evaluate religious creeds and practices for their alignment with liberal-democratic principles, thus adopting the position of quasi-theologian.44 In Germany at least, as we shall see, this problem had been understood and the Federal Constitutional Court has forced the state to abandon this position. Reflecting the “European model”45 of church-state relations, in the German system of “open neutrality” – which is a self-conscious rejection of the French model of “strict” or “separationist” neutrality – the state cooperates with recognized religions in the fulfillment of public functions, such as creedal education in public schools (which is a constitutional requirement, according to Article 7 of the Basic Law) and the control of public media. However, this cooperation is not based on Article 4 of the Basic Law, the religious freedom clause, but on Article 140, which incorporates into the Basic Law the so-called “Church Articles” of the 1919 Weimar Constitution. While negating, with its Weimar predecessors, the principle of a “state church,” Article 140 confers the special status of “corporation under public law” on recognized religions. So how does a religion (more precisely, a religious organization) acquire this privileged status, which, for instance, includes the right to charge members a “church tax?” The Christian churches and the General Council of Jews (Zentralrat der Juden) acquired this status automat40 Myriam Hunter-Henin, Lessons from the European Court’s Hijab Rulings (April 6, 2017), www​ .ucl​.ac​.uk/​european​-institute/​analysis/​2016​-17/​religious​-discrimination, last accessed May 25, 2020. 41 Ibid. 42 John Bowen, A View from France on the Internal Complexity of National Models, 33(6) Journal of Ethnic and Migration Studies 1003 (2007). 43 Ferrari, supra note 16, at 483. 44 As has been the accusation by Mahmood, supra note 11. 45 Ferrari, supra note 16.

392  Constitutions and religion ically or early on, as they had already enjoyed it under the Weimar Constitution. Importantly, however, following the equality principle of the liberal secular state, the public law status is in principle open to all comers, as long as certain conditions – which are referred to in Article 140 of the Basic Law as “Gewähr der Dauer” (“permanence guarantee”) – are fulfilled. This sounds formal, and it is indeed formal: the respective religious organization must be of a certain size and duration, encompassing not necessarily all, but a good proportion of the adherents to a creed, and fulfilling singularly religious or “soul-caring” (seelsorgerische) functions. However, for many years it was held that “loyalty to the state” was also required, under the rubric of substantive “unwritten” conditions. For obvious reasons, this was long the main argument for excluding organized Islam from the German church-state regime. However, since the Constitutional Court issued its landmark decision on Jehovah’s Witnesses in 2000,46 this excuse is no longer possible. In that case the court held, in Kantian fashion, that the liberal state must observe the distinction between law and morality, and that all that may be expected of a religious organization – as of any individual or group in society – is formal “Rechtstreue” (fidelity to the law), and not “loyalty” to or moral identification with the state. Moreover, the court held, the corporate-focused Article 140 must be read through the lens of the individual-protecting Article 4, as a “means to secure religious liberty.” This was the point at which the old corporatist “Staatskirchenrecht” (state church law) was transformed into the younger, individual-centered “Religionsverfassungsrecht” (constitutional law of religion).47 The Constitutional Court’s Jehovah’s Witnesses decision had the paradoxical result of requiring the German state to “cooperate” with a religion that is openly hostile to the democratic state, calling it an “instrument of Satan” and requiring members to stay away from it. Importantly, the decision opened the door to the recognition of organized Islam as a corporation under public law. Thus far, however, only one small Islamic sect – the Ahmadiyya Muslim Jamaat, which is repudiated and even persecuted by the Islamic mainstream as “heretic” – has acquired this status. If this status continues to be denied to the Islamic mainstream, this is for merely formalistic reasons stipulated by the “permanence guarantee” requirement. The main problem to overcome is the notorious lack of central organization in Islam, which by nature, in the classic Weber-Troeltsch terminology, is not a “church,” but a “sect.” In Germany, there are four large Islamic organizations, divided not so much by creedal differences as by national origins, language and political leanings; moreover, they represent only one-fifth of German Muslims. The three most important are the Turkish-Islamic Union for Religious Affairs (DITIB), which is the Turkish state Islamic organization directly controlled by Ankara’s Ministry for Religious Affairs (the Diyanet); the Islam Council (Islamrat), constituted by the Turkish Milli Görüs; and the Central Council of Muslims (Zentralrat der Muslime), which is Arab-dominated, with suspected connections to the Muslim Brothers. A notorious rift among German Muslims, as among all Muslims in Europe, is between the large majority of at best weakly organized “secular” Muslims, and the minority – 20 percent in Germany – of “religious” Muslims, who themselves are internally divided by national origins and political predilections, and are often suspected of subordinating the religious care of souls to their political agendas. A recent position paper by the Green Party, co-written by the charismatic Turkish-origin member of the Bundestag, Cem Özdemir, advocates that 2 BvR 1500/97, December 19, 2000. See Hans Michael Heinig and Religionsverfassungsrecht? (2007). 46 47

Christian

Walter

(eds.),

Staatskirchenrecht

oder

Constitutional law and the integration of Islam in Europe  393 public corporation status be denied to any of these organizations on this ground: “The four big Muslim organizations are shaped more by national background, language, or political orientation than by creed. They are religious associations (Vereine) but not religious communities (Gemeinschaften) [...] as required by Article 140.”48 However, this position is controversial, because “the ideal of unpolitical religion is foreign to the Basic Law.”49 While the continued denial of public corporation status to Islam is often cited as proof of ongoing institutional discrimination, the institutional integration of Islam is nonetheless in full gear. Note that the right of creedal instruction in public schools is contingent not on formal corporation status, but merely on the existence of a “religious community” (Religionsgemeinschaft). This is an easier requirement to meet: basically, to comprise people rather than organizations, and to meet their religious needs in a holistic fashion.50 Accordingly, there is already Islamic creedal education in the public schools of three Länder, performed by Islamic organizations (DITIB in Hesse) or by specially appointed Islam councils (as is the case in North Rhine-Westphalia and in Lower Saxony). Furthermore, funded by the federal government, Islamic theology is currently taught at ten public universities, modeled on the existing faculties for Protestant and Catholic theology, with no fewer than 35 Islamic creedal professorships – their mandate being the training of imams and, more generally, of an indigenous German Islamic religious elite. However, these integration successes on the collective recognition path also call into question some essential features of the German church-state regime. In particular, four problems connected to the incipient “cooperation” between state and Islam may be identified.51 First, has not the construct of creedal religious instruction in public schools, whereby pupils are sorted and segregated according to faith, become anachronistic and ill-suited to fulfill the state’s integration objective? Should not all religions be taught in school to all students, from a cognitive or universal-ethical, rather than parochially creedal, perspective? Second, how appropriate is the religious control of (publicly funded) university theology, considering that “liberal” Islam professors have already been forced out after protests by staunchly conservative Islamic organizations?52 Third, the prospect of Islamic Tendenzbetriebe (a German legal term for religious or other “weltanschauliche” [ideological] employers that are exempt from the strictures of non-discrimination), such as kindergartens and health or welfare organizations, brings into sharp relief their tension with anti-discrimination law: what if an Islamic kindergarten ordered all of its female employees to wear a headscarf, even if this was not their individual preference? Fourth, how appropriate is the strong religious presence in the control of public media (Rundfunkräte), considering that other interests (e.g. of atheists, humanists, the lesbian, gay,

Volker Beck and Cem Özdemir, Den Islam einbürgern (2015). Patrick Bahners, Mir gäbet nix, Frankfurter Allgemeine Zeitung 9 (November 25, 2015). 50 In constitutional lawyer Gerhard Anschütz’s classic formulation, a Religionsgemeinschaft is defined by “encompassing fulfillment of the tasks set by the shared faith” (quoted by Stefan Muckel, Muslimische Gemeinschaften als Körperschaften des öffentlichen Rechts, 8 Die öffentliche Verwaltung 312 (1995)). 51 See also the (cautious) critique in SVR, supra note 20, at 105–34. 52 See the case of Mouhanad Khorchide, Islam professor at the University of Münster, who was asked to “repent” for his liberal interpretation of the Koran and had to live under police protection (see SVR, supra note 20, at 216-8). 48 49

394  Constitutions and religion bisexual and trans community) which more strongly mirror secular pluralism are not represented here? In sum, the collective recognition path preserves privileges for religious interests that are increasingly difficult to justify in an increasingly secular German (and European) society. Despite this problem, Islamic parity claims – understood as extending to religious Muslims, both as individuals and collectively, the rights and privileges that pertain to the Christian majority – are incontrovertible and increasing.

3.

RESTRICTED EXEMPTION CLAIMS

The story is different with respect to Islamic claims for exemption from general laws that conflict with their perceived religious obligations. From a legal point of view, the distinction between parity and exemption claims may appear odd or even wrong, because exemption claims derive from some of the same legal sources as parity or extension claims – in particular, constitutional religious freedom rights. The parity/exemption distinction is not legal, but empirical, pointing to different sociopolitical dynamics surrounding both types of claims. With respect to exemption claims, it would perhaps be more precise to view them as clashes between equal-level constitutional rights or principles, like human or animal rights, or the educational mandate of the state, which may contradict and conflict with religious freedom rights. Interestingly, where a Jewish precedent exists, Islamic exemption or immunity claims have mostly succeeded. One example is the ritual killing of animals, which conflicts with animal protection laws (that now enjoy constitutional status in Germany). Because a Jewish exemption for the production of kosher meat already existed, it was impossible to refuse a parallel exemption of halal butchery from the legal norm to stun animals before killing them (which, in fact, triggered the animal rights lobby’s successful campaign to elevate the principle of animal protection to constitutional status). A second example is the permission of male circumcision for ritual reasons, which conflicts with the child’s right to physical integrity.53 In 2012, federal legislation introduced at record speed a special regime for religious circumcision, immunizing its practitioners from the normal scope of penal law. This followed a nationwide debate surrounding a medical incident that had led the local court of Cologne to classify circumcision by a Muslim doctor as “bodily injury.” Epitomizing the unequal powers of Jewish and Muslim organizations in Germany, the pro-religious side in this conflict was dominated by Jewish, rather than Muslim claimants.54 However, the situation is more complicated where no Jewish precedent exists or, more importantly still, where an exemption claim contradicts the new imperative of immigrant integration, which is near-identical to Islamic or Muslim integration. A case in point is the increasing rejection of exemption requests from co-educational sports and swimming lessons in public schools. This involves a clash of two principles, each endowed with constitutional dignity: on the one hand, the freedom of religion and parental education rights; and on the other, the state mandate to educate autonomous and responsible citizens (enshrined in Article 7(1) of the Basic Law, which places schools – including private schools – “under the super53 See the legal analysis by Holm Putzke, Die strafrechtliche Relevanz der Beschneidung von Knaben, in Strafrecht zwischen System und Telos (R.D. Herzberg et al. eds., 2008). 54 See SVR, supra note 20, at 145–48.

Constitutional law and the integration of Islam in Europe  395 vision of the state”). Until the mid-1990s, the freedom of religion always prevailed in this conflict. A famous decision of the German Federal Administrative Court (which has parallels in other continental European states) explicitly supported the Muslim parents’ wish not to see their daughter “emancipated as Westerners understand that term.”55 Laxist court practice coalesced with ever more extreme demands of Muslim parents to see even pre-puberty girls and boys exempted from co-educational sports or swimming lessons. In 2013, in the context of mounting political debate over “failing” Muslim integration, the German Federal Administrative Court reversed course in its so-called “burkini” decision. This case involved a Moroccan fifth grader, aged 11, who refused (or whose parents refused to allow her) to swim in a “burkini” – an all-body swimming costume which had been accepted by the school, in agreement with the large majority of Muslim parents, as an alternative to a smaller swimsuit. The court’s reasoning provides a good example of the case-sensitive “balancing” of competing constitutional commitments that is required in such cases. The court declared as “equal-level” the two constitutional principles of the state’s educational mandate and the right to religious freedom. These must be balanced according to the principle of “practical concordance.” For the first time, the right to religious freedom lost out against the non-religious interest. The court pointed to the fact that the school had offered a “burkini” as a compromise, which had been accepted by most Muslim parents. Accordingly, the function of the school to “form responsible citizens [...] (in) a pluralistic and individualistic society” had to be prioritized. Moreover, in such a society, there is no right to be protected from the sight of males in “tightly cut swimming trousers.” The function of the school is not just to educate, but also to integrate through “the confrontation of pupils with the diversity of behavioral styles in society, to which belong different styles of dress,” as the court held.56 This argument is strikingly similar to the Constitutional Court’s defense of the teacher’s headscarf in 2015: both decisions view schools as a microcosm of a pluralistic society. Just as secular pupils must live with the reality of headscarf-wearing teachers, pious (female) pupils must cope with boys in swimsuits. There is one difference, though. While the relationship between Muslim and non-Muslim pupils is symmetric, much like any civil society encounter, the relationship between pupils and their teachers is an asymmetric power relationship. Pupils, like their parents, are “irremediably and not only fleetingly” exposed to teachers as representatives of the state, through the legal obligation to attend school. This suggests that constitutional religious and parental rights should be taken more seriously than they actually were in the court’s 2015 headscarf decision.57 Comparing the teacher-pupil relationship to an “everyday encounter on the street,” involving equal citizens, “misses social reality.”58 As it were, the Constitutional Court erred in favor of the rights-bearing (but also power-wielding) Muslim teacher. Overall, the harsher line of national and European courts when dealing with religious exemption requests, as in the “burkini” decisions, should not cause concern as to the future of 55 Hans Albers, Glaubensfreiheit und schulische Integration von Ausländerkindern, Deutsches Verwaltungsblatt 987 (September 1, 1994). 56 The Federal Constitutional Court rejected an appeal in November 2016. The thrust of the 2013 burkini judgment of the German Federal Administrative Court was confirmed in a similar decision of the ECtHR, which involved two Swiss-Turkish schoolgirls, aged seven and nine respectively, in the Swiss canton of Basel (Affaire Osmanoglu et Kocabas c. Suisse, January 10, 2017). 57 See Langenfeld, supra note 31, at 425. 58 Heinig, supra note 31, at 10.

396  Constitutions and religion religious freedom in Europe. These decisions only pertain to a radical practice of Islam that is not condoned by the vast majority of Muslims in Europe.

4.

LEGAL-POLITICAL DYNAMICS

The case of restricted exemption claims shows that the legal system does not exist in a vacuum. It is influenced by a political context in which the “integration” of Islam and of Muslims has become a major, perhaps inflated issue. One might summarize the tension between law and politics within a three-stage model of Islamic integration. In Stage 1, in a context of low or no politicization, the courts are way ahead of, or even contrary to, (mostly unarticulated) public sentiment in boldly mobilizing constitutional religious freedom clauses to accommodate Islamic claims. The mostly liberal-inclusive decisions of the French Conseil d’Etat on pupils’ headscarves in public schools from the late 1980s to the early 2000s are telling examples of this.59 In Germany too, Islamic organizations – in particular, the legally savvy Milli Görüs, whose young leaders have become “constitutional patriots” of sorts60 – have staged a veritable “march through the courts.”61 There is an instructive difference here with the emancipation of another contemporary minority – gays and lesbians – which has likewise played out through the legal-constitutional process. However, in this case legal empowerment has been in sync with, rather than ahead of, evolving cultural sensibilities that have favored this process.62 In Stage 2, a toxic confluence of Islamist violence and nationalist populism makes Islamic integration a high-profile issue and vote-seeking politicians seek to counterbalance the legal integration of Islam with restrictive legislation. Accordingly, the liberal jurisdiction of the French Conseil d’Etat was ended by the statutory prohibition of “ostentatious religious symbols” in public schools in 2004, which was passed by a center-right government, but supported by an even more emphatically “laic” socialist opposition. However, such restrictions must pass the hurdle of constitutional law and politicians must consult legal experts to avoid legal opposition. A textbook case is the parliamentary “Burka Commission” established in 2009 under French President Nicolas Sarkozy, which was almost exclusively a dialogue between politicians (of all parties) and constitutional jurists about the limits of the legally possible in a liberal European constitutional state.63 The constitutional hurdles seemed so high that the Commission did not recommend a “general and total” burka prohibition. If such a prohibition was passed nevertheless in 2010, it must be seen as a rebellion of politics against the “dictates” of the Constitution and of “unelected” judges.64

See Christian Joppke, Veil: Mirror of Identity 37–45 (2009). See Werner Schiffauer, Nach dem Islamismus: die Islamische Gemeinschaft Milli Görüs (2010). 61 See Christian Joppke and John Torpey, Legal Integration of Islam: A Transatlantic Comparison 59–66 (2013). 62 See Christian Joppke, Multiculturalism by Liberal Law: The Empowerment of Gays and Muslims, 58(1) European Journal of Sociology 1–32 (2017). 63 See Joppke and Torpey, supra note 61, Chapter 2. 64 Ibid., at 42–46. 59 60

Constitutional law and the integration of Islam in Europe  397 In Stage 3, judges and courts adopt more prudent stances and refuse to resolve a sociopolitical conflict by legal fiat. The new perception is that it is the task of the democratic process to decide on the integration of Islam as a religion and of Muslims as a minority, and that the law must not stand in the way of politics. This is the cautious, non-interventionist position that the ECtHR has always taken on Islamic integration.65 On the domestic scene, it is more of a novelty. As public policy moved from de facto multiculturalism toward “civic integration” almost everywhere in Western Europe,66 courts began to take “integration” concerns more seriously, allowing them to trump previously absolute rights of religious freedom. This is the story of restricted exemption claims told in the previous section of this chapter.

5.

BY WAY OF CONCLUSION: RIGHTS IN ISLAM AND THE TRAP OF “CORRECT THINKING”

Any account of the legal integration of Islam must address the paradox that the notion of individual rights as a fulcrum of legal-political order is entirely foreign to the Islamic tradition, which – like Christianity – is not merely a religious, but also a societal force. “The entire edifice of individual rights [...] is alien to the structure of Islamic reasoning,” argues prominent Islamic intellectual and statesman Ali Allawi.67 He sharply demarcates the “West” with its cult of the individual, from “Islamic civilization” and its “God-centred community,” in which there is no rift, but rather “a continuum between individual and the group, with little possibility of ethical atomization at the individual level or an oppressive conformity at the group level.”68 Yes, there are “rights” in Islam; but they pertain to God and, when applied to human beings, they are “in the nature of obligations.”69 Accordingly, the “right to free expression” exists, but only as “a duty to seek the truth and its fulfilment.”70 One might dismiss the Muslim world’s central human rights document, the 1990 Cairo Declaration on Human Rights in Islam, as a cynical ploy of autocratic states. But its “Islamic” imprint cannot be denied. Its preamble does not contain the word “right” at all; instead, it mentions “obligations,” “responsibilities,” and “subordination to Allah.” A curious list of “rights” in other Islamic human rights documents can be found in Ann Elizabeth Mayer’s well-researched study Islam and Human Rights:71 they include the “right” not to be made fun of or not to be insulted by nicknames (derived from a verse of the Koran); the “right” not to have one’s corpse mutilated; the “right” of women not to be surprised by male family members approaching them unannounced; and the “right” not to be tied up before being executed. Who would disagree that in such pronouncements there is “no sure grasp of what the concerns of human rights really are”?72 In fact, considering the “Sharia proviso” that accompanies the more serious “rights” stipulated in the Cairo Declaration, such as the “right to life” in Article 2, one also must agree with the conclusion that “Islam is not conceived of as offering the basis for See Joppke, supra note 22. See Goodman, supra note 15. 67 Ali A. Allawi, The Crisis of Islamic Civilization 11 (2009). 68 Ibid., at 12. 69 Ibid., at 194. 70 Ibid. 71 Ann Elizabeth Mayer, Islam and Human Rights (1999). 72 Ibid., at 62. 65

66

398  Constitutions and religion protecting rights but solely as the basis for limiting [...] rights.”73 It is therefore surprising that Mayer seeks to erase the role of “Islam” in this: “Islamic (sic) human rights schemes” should rather be understood as “attempts by elites – the beneficiaries of undemocratic and hierarchical systems – to legitimize their opposition to human rights by appealing to supposedly distinctive cultural traditions.”74 And as “Islam” is a “very decentralized religion,” with a “wide range of dissimilar opinions,”75 nothing fixed can be said about it. However, this cornerstone of academic bien pensé is abandoned when the central event in the “Islamic tradition” is considered: the early medieval victory of the voluntarist Asharis over the rationalist Mutazilas.76 Since then, “Islamic thought tended to stress not the rights of human beings but, rather, their duties to obey God’s perfect law [...] whatever God willed was ipso facto just.”77 But then, “Islam” is undeniably involved in the oddities of the Cairo Declaration and similar Islamic “human rights” documents. “Correct thinking” stands in the way of tackling the tensions between Islamic and secular legal precepts. “In Islam,” states a noted academic Islamic jurist (who is very much reform-minded), “God is the only sovereign and ultimate source of legitimate law.”78 Some correct thinkers initially deny this fact, but then let it slip in through the backdoor. In a reflection on “Islam and the Basic Law,” a German human rights expert finds the entire question of whether “Islam” is “compatible with the liberal-democratic constitutional order” not only “not legitimate,” but an “expression of culturally racist exclusion.”79 But then, he also finds that the “priority (Geltungsvorrang) of democratic secular law [...] as liberal achievement should not be put to disposition.”80 From here, it is a small step to the exactly opposite position that “only a religion that accepts the secularity of the state and with it the priority of the state over religion enjoys the protection of the basic right of religious freedom.”81 Les extrêmes se touchent. The conservative anti-Islamist is as misguided as the progressive correct thinker. The notion of “verfassungsfeindliche” (anti-constitutional) religion – to be excluded as an enemy, as once communism was – is obnoxious. Religious rights in the constitutional state are universal and not contingent on the “liberal” pedigree of religious dogma. Which religion has ever been “liberal”? In this polarized field, French Islam specialist Olivier Roy82 is correct in his assertion that the principle of liberal neutrality forbids the state from evaluating religious dogma, so that the question of compatibility does not arise – at least, not most of the time. Hence the remarkable capacity of the liberal constitutional order to integrate a religion that is, in no small way, inimical to its principles. Ibid., at 71. Ibid., at 192. 75 Ibid., at xiii. 76 Ibid., at 44. 77 Ibid., at 45. 78 Khaled Abou El Fadl, Islam and the Challenge of Democracy, Boston Review 1 (April/May 2003), http://​bostonreview​.net/​archives/​BR28​.2/​abou​.html, last accessed May 25, 2020. 79 Heiner Bielefeld, Islam und Grundgesetz, in Paradigmenwechsel in Einwanderungsfragen? 153 (Ulrike Davy and Albrecht Weber eds., 2006). 80 Ibid., at 158. 81 Karl Albrecht Schachtschneider, Grenzen der Religionsfreiheit am Beispiel des Islam 101 (2010). See also the conservative German jurist Karl Doehring, Islam in Deutschland: Niemand kann zwei Herren dienen, Frankfurter Allgemeine Zeitung (September 23, 2010). 82 Olivier Roy, La laicité face à l’Islam (2007). 73 74

23. Blasphemy, freedom of expression and the role of constitutional rights: the case of Ireland Neville Cox

1. INTRODUCTION In the middle of 2009, the Irish government – following numerous recommendations from various law reform agencies, as well as a protracted period of political negotiation – published in bill form what would later become the Defamation Act of 2009.1 This legislation abolished the previous governing statute (the Defamation Act of 1961), codified various developments that had emerged from the courts and introduced some largely procedural reforms. Undoubtedly the most remarkable development, however, was the fact that Section 36 of the Act also made provision for a statutory crime of blasphemy.2 Thus it defined the offence, outlined the defences that were available to someone charged thereunder and set out the maximum penalties (a fine) that could be imposed following conviction. As is discussed below, the public reaction to this new law was, for the most part, one of incredulous outrage.3 This legislative development was, however, not unforeseeable – certainly on one level. This is both because the 1961 Act, to be repealed by the new legislation, had made provision for blasphemy4 and − far more importantly – because at the time, the Irish Constitution, while it protected the right to freedom of expression in a highly conditioned way,5 also required that blasphemy be a crime punishable by law.6 As we shall see, the public clamour against the statutory encapsulation of the crime of blasphemy in 2009 Act was more appropriately aimed at the ongoing constitutional reference to blasphemy.

1 See, generally, Eoin O’Dell, Does Defamation Value Free Expression, 12 Dublin University Law Journal (ns) 50 (1990); Neville Cox and Eoin McCullough, Defamation Law and Practice 4 ff. (2014); Irish Law Reform Commission, Report on the Civil Law of Defamation 54 (1991) and also the Report of the Minister for Justice’s Advisory Group on the Tort of Defamation (2003) at paras 6−15. 2 See Katherine Jacob, Defending Blasphemy: Exploring Religious Expression under Ireland’s Blasphemy Law, 44 Case W Res J Int’l L 803 (2012). 3 See Patsy McGarry and Conor Pope, Blasphemy Provisions Seen as Irish Solution to Irish Problem: Minister for Justice in 2009 Said he Never Had so Many Outraged Emails as on This Issue, Irish Times (8 May 2017), www​.irishtimes​.com/​news/​crime​-and​-law/​blasphemy​-provisions​-seen​-as​ -irish​-solution​-to​-irish​-problem​-1​.3075496​?mode​=​sample​&​auth​-failed​=​1​&​pw​-origin​=​https​%3A​%2F​ %2Fwww​.irishtimes​.com​%2Fnews​%2Fcrime​-and​-law​%2Fblasphemy​-provisions​-seen​-as​-irish​-solution​ -to​-irish​-problem​-1​.3075496, last accessed 27 May 2020. 4 Section 13 of the 1961 Act had laid down penalties following conviction for blasphemy. 5 Article 40.6.1 Bunreacht na hEireann. 6 Article 40.6.1(i). See Neville Cox, Blasphemy and the Law in Ireland 47 ff (2000); Courtney Kenny, The Evolution of the Crime of Blasphemy, 1 Cambridge Law Journal 127 (1922); Paul O’Higgins, Blasphemy in Irish Law, 23 Modern Law Review 151 (1960); and Neville Cox, Sacrilege and Sensibility: The Value of Irish Blasphemy Law, 19 Dublin University Law Journal (ns) 87 (1997).

399

400  Constitutions and religion This position continued for nine years, until in October 2018 – and with very few dissenting voices – the Irish people voted to remove the reference to blasphemy from their Constitution.7 Finally, in early 2020, the Blasphemy (Abolition of Offences and Related Matters) Act 2019 was officially commenced, and had the effect of repealing the 2009 statutory criminalisation of blasphemy. Thus, at the time of writing, Ireland no longer criminalizes blasphemy at either constitutional or statutory level. It is possible that certain forms of speech that might be considered blasphemous might also be illegal, but now, this will not be because they are blasphemous, but rather because they have some other effect – because they constitute incitement to hatred or defamation, for example. What Ireland presents us with, however unintentionally, is something interesting: a constitutional model that existed well into the twenty-first century and that was at variance with the now settled principle in Western, liberal, secular democracies (as well as within the allegedly international human rights order)8 that individual rights should always take precedence over religious sensitivities and over religion itself. This is not, incidentally, a principle that individual rights cannot be limited in the name of public morality – restrictions on speech that offend against secular (public) moral norms (hate speech laws and the like) are nowhere near as controversial as blasphemy laws. Rather, it is a more specific principle that blasphemy laws (and the public moral visions that underpin them) are universally unacceptable. The former Irish constitutional model, with its reference to blasphemy, appeared to take a different approach – to prioritize religion over individual rights – and, as is discussed below, it was widely criticized as such. Crucially, however, as is discussed shortly, for roughly 30 years, this model was also manifestly at odds with the reality of the nature of an increasingly secularized Irish society. Much of the vociferous reaction against the 2009 statutory enshrinement of the crime of blasphemy is best explained as outrage not against the substance of the law, but rather against what it symbolized: namely, the falsehood that the Ireland of 2009 was still profoundly religious and that the Irish people as a whole supported the notion of individual rights being limited in the name of religious doctrine. Indeed, perhaps the most notable aspect of the referendum in October 2018 that removed the reference to blasphemy from the Irish Constitution is not that it was passed by a significant majority, but rather how little work the government of the day needed to do to ensure that it passed.9 What, though, of the proposition that a blasphemy law is an inherently unacceptable interference with the right to freedom of expression irrespective of where in the world it is enforced? This is an interesting issue because the unequivocally religious concern of a blas-

7 See Patsy McGarry, Ireland Votes as One to Remove Blasphemy from the Constitution, Irish Times (28 October 2018), www​.irishtimes​.com/​news/​social​-affairs/​religion​-and​-beliefs/​ireland​-votes​-as​ -one​-to​-remove​-blasphemy​-from​-constitution​-1​.3678935, last accessed 27 May 2020. 8 Thus, for example, the United Nations Human Rights Committee (UNHRC) has concluded, albeit in unreasoned fashion, that blasphemy laws inherently violate the right to free speech in Article 19 of the International Covenant on Civil and Political Rights (ICCPR). See Para 48, UNHRC General Comment No 34 on Freedom of Opinion and Expression (CCPR C/GC/34) (12 September 2011), www2​.ohchr​.org/​ english/​bodies/​hrc/​docs/​gc34​.pdf, last accessed 27 May 2020. For discussion, see Michael O’Flaherty, Freedom of Expression: Article 19 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment No. 34, 12 Hum Rts L Rev 627 (2012). 9 See Colum Kenny, Hell No. Blasphemy Vote is Facile, Irish Times (9 October 2018), www​ .irishtimes​.com/​opinion/​hell​-no​-blasphemy​-vote​-is​-facile​-1​.3656024, last accessed 27 May 2020.

Blasphemy, freedom of expression and constitutional rights in Ireland  401 phemy law means that any assessment of its conceptual legitimacy reveals deeper concerns pertaining to: (1) the relationship between individual rights and public morality in a modern constitution; and (2) the extent to which it is legitimate for a concern with some aspect of religion or religious doctrine to form part or all of a nation’s public morality. These concerns are the focus of this chapter. My argument is that there is no principled reason, either conceptually or as a matter of human rights law, why a concern with the sacred should not play into a nation’s public morality and, therefore, why individual rights cannot be constitutionally limited on this basis. This is not to justify any particular blasphemy law – and a law that is excessively draconian or that operates without concerns for due process will be illegitimate for these reasons. It is simply to say that a constitutional or statutory prohibition of blasphemy is not inherently problematic. On the other hand, such a law would be appropriate only as a response to a genuine aspect of the state’s public moral vision.10 This is why the Irish constitutional treatment of blasphemy, certainly between 1990 and 2018, was so inappropriate; and this fact, more than any other, explains the outraged reaction of many Irish people to the statutory encapsulation of blasphemy in 2009.

2.

FREEDOM OF EXPRESSION AND PUBLIC MORALITY

Freedom of expression is, of course, regarded as a core right within the Western constitutional paradigm,11 both because of its connection with democratic government and because of its importance for individual autonomy generally. In the first context, it is argued (albeit somewhat rhetorically) that freedom of expression underpins the concept of intelligent self-government12 and, in addition, enables corruption and bad government to be outed and exposed.13 This is the reason why, for example, the European Court of Human Rights (ECtHR) is so keen to protect the role of the media as the ‘bloodhounds and watchdogs of society’.14 In the second, it is

10 For analysis of the difficulty in proving and disproving that a particular proposition forms part of a nation’s public morality, see Roberto Perrone, Public Morals and the European Convention on Human Rights, 47 Israel Law Review 361, 369 (2014). 11 See Malcolm Evans, From Cartoons to Crucifixes: Current Controversies Concerning the Freedom of Religion and the Freedom of Expression before the European Court of Human Rights, 26 Journal of Law and Religion 345, 346 (2010−11) for the view that ‘human rights law has generally championed the case for maximising the scope of the freedom of expression’. 12 See, for example, Alexander Meiklejohn, Free Speech and its Relation to Self-Government (1972); Id., Political Freedom (1965). 13 See Vincent Blasi, The Checking Value in First Amendment Theory, 2 Am B Found Res J 521 (1977). 14 See, among many, Lingens v Austria (No 2) [1986] ECHR 7 at para 42; Bladet Tromso v Norway 21980/93 [1999] ECHR 29 at para 59; Bergens Tidende v Norway [2000] ECHR 190 at para 49; News Verlags GmbH & CoKG v Austria 31457/96 [2000] ECHR 5 at para 55; Scharsach v Austria 39394/98 [2003] ECHR 596 at para 29; Perna v Italy 48898/99 [2001] ECHR 485 at para 39; Pedersen v Denmark 49017/99 [2004] ECHR 693 at para 65; Cumpana & Mazare v Romania 33348/96 [2004] ECHR 692 at para 93; Busuioc v Moldova 61513/00 [2004] ECHR 695 at para 57; Novaya Gazeta and Borodyanskiy v Russia [2013] ECHR 251; Kania and Kittel v Poland [2011] ECHR 978; Mahmudov and Agazade v Azerbairjan [2008] ECHR 1739.

402  Constitutions and religion claimed that by ensuring a vibrant marketplace of ideas,15 freedom of expression assists people in finding their own truths;16 and, in doing so, it also benefits society in finding new truths and in rejecting those things that were once believed to be truths, but are later demonstrated to be falsehoods.17 Thus, the right to freedom of expression − with its inherent characteristic of allowing the individual the freedom to ‘shock offend and disturb’18 (ie, to stand outside social orthodoxy and challenge that orthodoxy) − encapsulates the essence of liberal theory. On the other hand, the right to freedom of expression is clearly not an absolute thing – a fact that is manifest in the constitutional structures of individual states19 and in the operation of international human rights law. One may not commit libel or blackmail (or in some other way disturb the rights and freedoms of others) or threaten the peace or disturb social order. But in addition – and this is the principal focus of this chapter – many societies, either explicitly or implicitly, will in principle permit speech that is profoundly offensive from a public morals standpoint to be restricted, and international human rights law expressly endorses the legitimacy of this approach.20 This is, of course, a complex and potentially rather dangerous proposition – especially when set against the reality that it may be virtually impossible to resist a state’s claim that something is part of its public moral vision. In essence, what it asserts is the possibility that the moral quality of speech might be a reason not to permit it, and, at least in theory, this seems to justify censorship. On the other hand, the dangerousness of the proposition is limited by the fact that – certainly as a matter of constitutional law and international human rights law – a government must generally show more than merely the fact that a restriction on freedom of expression serves a legitimate purpose. Rather, it must also demonstrate that it is necessary – and this will mean both that there must be a level of proportionality between the restriction and the purpose and also, even if that restriction is proportionate, that the restriction is also appropriate having regard to the nature of a democratic society. What remains, in other words, is not any kind of a blanket exoneration for states that wish to suppress ‘immoral’ speech, but simply the principle that protection of public morality is a legitimate purpose that might underpin a justified restriction of rights – including the right to freedom of expression. Typically, the legal prohibition of ‘immoral speech’ will serve two purposes; in the first place, it represents a stern societal moral judgement against both the speech itself and, on occasion, the ideas that that speech represents. Of course, this judgement should not be, and in practice is not, made lightly; but when what I have previously termed the ‘soul of the nation’21 is disturbed by speech, it may well be that such a judgement is warranted – even inevitable. 15 For discussion, see the dissenting judgment of Holmes J in Abrams v United States 250 US 616 (1919) at 630. 16 See, for example, Richard Wollheim, Crime, Sin and Mr Justice Devlin, Encounter 34 (November 1959); Peter F. Strawson, Social Morality and Individual Ideal, 36 Philosophy 1 (1961); Ronald Dworkin, Objectivity and Truth, 25 Philosophy & Public Affairs 87 (1996). 17 See, for example, the views of John Stewart Mill in relation to the stagnancy of the China of his day – something that he attributed to constraints on freedom of expression in On Liberty and Other Essays 79 (Gertrude Himmelfarb ed, 1985). 18 Handyside v UK [1976] ECHR 5. 19 See, for example, the detailed construction of Article 5 of the German Grundgesetz. 20 This is expressly mentioned in, for example, Article 19(3) of the ICCPR and Article 10(2) of the European Convention on Human Rights (ECHR). 21 Neville Cox, Blasphemy, Holocaust Denial and the Control of Profoundly Unacceptable Speech, 62 American Journal of Comparative Law 739 (2014).

Blasphemy, freedom of expression and constitutional rights in Ireland  403 Second, in practice, people get offended22 by speech because of its (im)moral quality. Hence, by targeting speech that is outrageous as a matter of public morality, a state is also protecting a large part of the population from being profoundly offended.23 Of course this idea of prohibiting ‘immoral speech’ either per se or because it is also ‘offensive speech’ may be repugnant to particular states – and it is clear, for example, that this is not possible under American constitutional law.24 Equally, as was mentioned above, it is possible as a matter of international human rights law; nor is there any inherent constitutional difficulty with such an approach. Naturally, what becomes critical in this regard is the assessment of what kind of speech actually has the capacity to strike at the soul of any particular nation – that is, to be outrageous as a matter of public morality. This involves an evaluation of the content of that nation’s public morality and, insofar as twenty-first century Western Europe is concerned, this is a tricky business, because the public moralities of so many European states have altered dramatically over the last 70 years. Historically founded on Judaeo-Christian principles, and often with a highly religious focus, many (though obviously not all) European societies traditionally integrated around a vision that emphasized sexual restraint and, more generally, individual deference to a strict and conservative moral code. Fast forward 70 years and these conservative values have been largely replaced both with a view that it is morally wrong to condemn someone for acting in accordance with his or her sexual desires or identity, and with an overarching concern for equality and dignity – especially of people who have been historically disadvantaged. The moral code is still a very strict one, but its (liberal and secular) contents are virtually the opposite to those of its (conservative and religiously influenced) predecessor. These developments are also reflected in the types of speech that might be restricted in the name of public morality. Whereas previously, in various European states, blasphemy might have been offensive from the standpoint of a nation’s public morality (and consequently generated profound offence for many people), now it will be hate speech or any kind of abuse or mockery on grounds such as race or sexual orientation25 that is more likely to have this effect. Furthermore, it is not necessary for this speech to have any tangible impact on the interests of those whom it targets (beyond offending them) in order for it to outrage public morality. Thus, the mere utterance of certain words – the ‘n word’, for example – is regarded as horrific by contemporary moral standards, even if no one is targeted or injured as a result. This brings us to two key points insofar as this chapter is concerned. First, no matter how deeply it is held or how fundamental it is to a person or a society, a moral belief is not capable of being empirically proved to be objectively or universally correct. In other words, the key legitimizer of morality is the sincerity with which it is believed to be true – and not the fact that it can be shown actually to be true. This proposition also lies at the heart of the distinction between a fact (which is provable or disprovable) and an opinion or value judgement (which is

22 In this regard, I am speaking of what Joel Feinberg termed ‘profound offence’ – that is, where someone is morally offended by something that he or she believes should not happen (rather than simple offence, where one’s senses – for example, of smell or hearing – are disturbed). See Joel Feinberg, Offense to Others 50−97 (1985). 23 This was, for example, a concern of the ECtHR in Otto-Preminger-Institut v Austria [1994] ECHR 13470/67 (20 September 1994). 24 See, for example, the decision of the Supreme Court in Texas v Johnson 491 US 397 (1990). 25 Clearly there may be yet more localized concerns, deriving from history or culture that will play into a nation’s public morality. This explains, for example, Germany’s revulsion at holocaust denial.

404  Constitutions and religion not).26 Second, any fair analysis of the history of all European states (including the reasonably recent history) leads to a very clear conclusion that ‘European public morality’ – to the extent that such a thing exists – is largely relativist. Moral ideas that are held sacred in one era are rejected as falsehoods in another and may indeed regain their sanctity in yet another – the European attitude to homosexuality over the centuries is testament to this fact. In other words: (1) the contemporary public morality of a secular European state, while no doubt sincerely endorsed, cannot be proven to be true – or even to be ‘truer’ or better than that which preceded it or another competitor morality; and (2) historical experience suggests that this public morality may well be rejected by a future generation. This is unsettling within the European zeitgeist because of its historical (and arguably contemporary) tendency to assume that it has a clear grip on objective truth. Europe’s history of colonial imperialism is testament to this – based as it was, in many cases, on ideals that were ideological as well as economic.27 There is a clear European tendency to see its way of doing things and its view of moral priorities as the only game in town, and to regard those who have different moral priorities or who think differently as backward, laughable or evil. Such a viewpoint is, however, built on entirely shaky foundations, for all of the reasons identified in the previous paragraph. What this means for the purposes of this chapter, of course, is that if we (1) accept the principle that it is legitimate as a matter of principle to restrict speech because it offends profoundly against a nation’s public morality, and (2) accept that we cannot prove that our contemporary public morality is universally right or true, then we must concede that this principle will also legitimately be applicable in countries whose public moralities are different from the contemporary public moralities with which many of us are familiar and which we endorse. In other words, it applies equally to an Islamic, theocratic society as much as it does to a secular European one – and this brings us neatly to the issue of blasphemy laws.

3.

THE PURPOSE OF A BLASPHEMY LAW

Different forms of speech can generate a multiplicity of different concerns at the same time – thus, speech might simultaneously be defamatory and also incite to hatred. Blasphemous speech is no different in this regard, and this is one of the reasons why blasphemy as a concept has proved difficult to define. Historically, this has played out in the fact that blasphemous speech has been targeted under laws which, while they were called blasphemy laws, were in fact targeting the speech in question for different reasons. This in turn played into the legal and, subsequently, the popular definition of ‘blasphemy’ in those states. So most obviously, the old common law of blasphemy, developed and interpreted in the English courts, was first, in effect, a law against 26 See, for example, Lingens v Austria (No 2) [1986] ECHR 7 at para 46; Bladet Tromso v Norway [1999] ECHR 29 at para 66; Feldek v Slovakia [2001] ECHR 463 at para 75; Pedersen v Denmark [2004] ECHR 693 at para 64; Selisto v Finland [2004] ECHR 634 at para 55; Turhan v Turkey [2005] ECHR 311 at para 24; Ukrainian Media Group v Ukraine [2005] ECHR 198 at paras 59−62; Wirtschafts-Trend Zeitschriften-Verlags Gmbh v Austria [2005] ECHR 862 at para 32; Semik-Orzech v Poland [2011] ECHR 923; Sorguc v Turkey [2009] ECHR 979; Bodrozic v Serbia [2009] ECHR 978; Dlugolecki v Poland [2009] ECHR 345. 27 See, for example, John Laffey, Imperialism and Ideology: An Historical Approach (1999); Andrew Hussey, The French Intifada: The Long War Between France and its Arabs (2015).

Blasphemy, freedom of expression and constitutional rights in Ireland  405 treason28 (in that it operated on the basis that, as the Church of England was part of the law of the land, denial of church doctrine was quasi-treasonous); and thus the speech that was defined as ‘blasphemy’ was speech with this effect. Latterly, the law focused on the interests of those who might be profoundly offended by blasphemous speech and thus, once again, the definition of the offence became conditioned by the focus of the law.29 Equally, the key point to make is that these laws, while they operated under the banner of blasphemy laws and may indeed have targeted speech that was blasphemous, were what they were – namely, laws that were not concerned with the moral quality of the speech, but rather with whether it would have the kind of negative impacts (treason in the one case and interference with the sensitivities of others in the other) on which the law was focused. In other words, these laws may well have targeted some blasphemous speech; but they were not really blasphemy laws, because, by definition, the concern of a blasphemy law should be with the blasphemous nature of the speech simpliciter (and not with the secondary impacts thereof), in the same way as the focus of a defamation law is on the defamatory nature of particular speech. What then is the concern arising out of blasphemous speech? In order to answer this question, we must first consider what we mean by ‘blasphemy’. This is difficult, given that there is no clear and consistent definition of the term; but at a minimum, it involves morally inappropriate treatment of sacred things – with the definitions of what is inappropriate and what is sacred being uncertain, and upon which different people and different societies in different eras will have different views.30 Thus, at least in theory, when a state legislates against blasphemy, this entails a societal judgement that, insofar as the (public) moral standards of the society in question are concerned, this kind of irreverent speech is simply unacceptable. It goes without saying that a society that makes this kind of judgement will inevitably have a religiously based public morality – in other words, it will be a society that is very different from the kind of liberal secular society that exists in virtually all European states. It will also inevitably be a society that is at odds with the highly secularized vision of rights interpretation that characterizes the approach of bodies like the ECtHR and the United Nations Human Rights Committee (UNHRC). Critically, however, and for the reasons considered in the previous section, it is not possible, objectively, to deem the moral priorities of that state to be wrong or even less right than that of the secular European countries; indeed, as I have argued elsewhere, a judgement of this kind: (1) is open to the criticism that it reflects a deeply engrained sense of moral superiority on the part of Western states; and (2) when it is made by bodies that have responsibility for enforcing international human rights, runs the risk of exposing the entire international human rights machinery to the potentially fatal criticism that the norms that it enforces are not international at all, but are instead the embodiment of whatever moral standards happen to be in vogue in powerful Western states at a particular time.31 28 Taylor’s Case (1676) 1 Vent 293; 3 Keble 607 (1676). See Leonard W. Levy, Treason Against God: A History of the Offense of Blasphemy 312 (1981); Louis Blom-Cooper, Blasphemy: An Ancient Wrong or a Modern Right 3 (1981); Richard Webster, A Brief History of Blasphemy 23 (1990); Kenny, supra note 6, at 130 ff. 29 Bowman v Secular Society [1917] AC 406; R v Bradlaugh (1883) 15 Cox CC, 23; R v Ramsay & Foote (1883) 15 Cox CC 217. 30 See Neville Cox, Pourquoi Suis-Je Charlie? Blasphemy, Defamation of Religion, and the Nature of Offensive Cartoons, 4 Oxford Journal of Law and Religion 343 (2015). 31 Neville Cox, The Freedom to Publish ‘Irreligious’ Cartoons, 16 Human Rights Law Review 195 ff. (2016); Justifying Blasphemy Laws: Freedom of Expression, Public Morals, and International Human Rights Law 35(1) Journal of Law and Religion 33 (2020).

406  Constitutions and religion Once again, let us remember that a moral evaluation is a sincere, but objectively unprovable determination as to the difference between right and wrong. For a state that does not have a religiously grounded morality, the basis for that evaluation will, obviously, be something other than God; and the basis for moral evaluation in secular European states has tended to be the primacy of the individual and of individual dignity. Naturally, also this evaluation is localized and conditioned by history – thus, the contemporary Western vision that particular kinds of racist, misogynistic or homophobic speech are, morally, beyond the pale derives from the historical oppression of African Americans, women and homosexuals in Western countries. The impact of history on public morality is reflected even more obviously in the German reaction of moral outrage to holocaust denial. For a state whose public morality reflects a belief in a monotheistic God, on the other hand, it is God and God alone that is the source of all moral truth – and when this is believed to be true, it changes absolutely everything. Moreover, once again, those individuals and societies who do not share this moral vision (ie, who do not believe in that kind of God or, if they do, who still believe in a strict church/state separation) cannot prove that it is less true than that which they endorse, and are left merely with the self-evident reality that different societies have different, sincerely held moral priorities. This is a crucial point, and one that is difficult for someone who does not believe in God fully to comprehend – precisely because religious devotion is unique within the human paradigm and thus analogies to and from different situations of ideological loyalty simply do not work. For many religious devotees – either individuals or societies – a monotheistic God is the source of their entire moral compass (and the beginning and end of truth); God directs them to do things that they might otherwise prefer not to do; and God is their eternal judge who will determine whether they spend eternity in paradise or in torment. A society that has God at the centre of its public morality may seek to enforce this overarching moral proposition through its laws; and, insofar as freedom of expression is concerned, it will be speech that offends against God that will also be repugnant to its public morality and thus might be legally targeted. It will, in other words, be blasphemy. What this means, therefore, is that, in a religious society (and in 2020, that almost inevitably means an Islamic society), blasphemy is akin in its impact and its perceived moral awfulness to racism and hate speech in a contemporary, European secular society, in that both offend against the core source of the public moral vision (God in one case and human dignity in the other). In other words, the principle that grounds the legitimacy of hate speech laws in some countries is identical to the principle that grounds the legitimacy of blasphemy laws in others, and the difference between the two kinds of laws reflects the application of that principle in countries that, for historical and other reasons, have different, deeply held and empirically unprovable moral visions. Of course, many will respond that there is a clear difference between blasphemy and hate speech (or even holocaust denial) namely that the latter but not the former has the capacity to generate tangible harm for individuals whereas the latter, at worst, is insulting to God. This may be true, but I would suggest that it is not an unanswerable argument. In the first place, there can be a distinction between speech that constitutes incitement either to hatred or to violence and hate speech and thus I am referring to those kinds of hate speech which, while insulting and offensive, does not directly constitute either of these forms of incitement (and as I have noted, it is perfectly possible for blasphemous speech also to represent, indirectly, a form of incitement to hatred). Secondly, and more importantly, the view that speech which targets or has effects on individuals is necessarily more morally repugnant and offensive than

Blasphemy, freedom of expression and constitutional rights in Ireland  407 speech that targets God, is itself a moral proposition – one that may be entirely at variance with the worldview of a person or a society whose moral vision is conditioned by submission to that God. What remain, therefore are two realities: (1) that certain countries prohibit blasphemy for the same reason that many secular European countries prohibit racist hate speech (that does not directly incite to violence or hatred) – because it offends against public morality; and (2) that this notion of a restriction on speech being justified in order to uphold public morality is one that is well known as a constitutional concept and is also expressly permitted within the text of international human rights treaties. In other words, the prohibition of blasphemy can, at least theoretically, play into a constitutional paradigm, provided that a concern with preserving the sacred is a pressing element of a nation’s public morality.

4.

THE CASE OF IRELAND

This brings us back to the former constitutional position of Ireland in relation to blasphemy and, more specifically, to the public reaction to the creation of a new and streamlined form of the crime of blasphemy in the 2009 Defamation Act. The reaction was one of horror and embarrassment that such a development would happen.32 It was, moreover, repeated in the summer of 2017, when the media broke a story that well-known comedian and TV personality Stephen Fry was under investigation for blasphemy33 for comments made two years previously on a well-known Irish television programme in which, with characteristic eloquence and passion, he suggested that a God who could create or tolerate contexts of intense human suffering must be a monster.34 At the core of the reaction were three distinct concerns. First, it was suggested that the Irish law was dangerous because it could be used to stifle freedom of expression (and it was argued that the Stephen Fry controversy was indicative of this in practice).35 Second, it was suggested that the law gave comfort to countries such as Pakistan to operate brutal and draconian blasphemy laws and was manifestly in breach of UN standards.36 Third, it was suggested that the 32 As an example see Padraig Reidy, Who Asked for Ireland’s Blasphemy Laws?, Guardian (9 July 2009), www​.theguardian​.com/​commentisfree/​libertycentral/​2009/​jul/​09/​ireland​-blasphemy​-laws, last accessed 27 May 2020. 33 Cathal McMahon, Gardai Launch Blasphemy Probe into Stephen Fry comments on ‘The Meaning of Life’, Irish Independent (6 May 2017), www​.independent​.ie/​irish​-news/​news/​garda​-launch​ -blasphemy​-probe​-into​-stephen​-fry​-comments​-on​-the​-meaning​-of​-life​-35684262​.html, last accessed 27 May 2020. 34 See Henry McDonald, Stephen Fry Calls God an ‘Evil, Capricious Monstrous Maniac’, Guardian (1 February 2015), www​.theguardian​.com/​culture/​2015/​feb/​01/​stephen​-fry​-god​-evil​-maniac​ -irish​-tv, last accessed 27 May 2020. 35 See Conor Pope, Referendum on Blasphemy Being Prepared as Complaint Made Against Stephen Fry, Irish Times (6 May 2017), www​.irishtimes​.com/​news/​ireland/​irish​-news/​referendum​-on​-blasphemy​ -being​-prepared​-as​-complaint​-made​-against​-stephen​-fry​-1​.3074334​?mode​=​sample​&​auth​-failed​=​1​&​pw​ -origin​=​https​%3A​%2F​%2Fwww​.irishtimes​.com​%2Fnews​%2Fireland​%2Firish​-news​%2Freferendum​ -on​-blasphemy​-being​-prepared​-as​-complaint​-made​-against​-stephen​-fry​-1​.3074334, last accessed 27 May 2020. 36 See, for example, Roy Greenslade, Why Ireland Must Get Rid of its Disgraceful Blasphemy Law, Guardian (11 April 2016), www​.theguardian​.com/​media/​greenslade/​2016/​apr/​11/​why​-ireland​-must​-get​ -rid​-of​-its​-disgraceful​-blasphemy​-law, last accessed 27 May 2020.

408  Constitutions and religion law was embarrassing in the message that it conveyed to the world about the nature of modern Irish society.37 The first two of these propositions can be dealt with relatively simply; but the third both reveals the reason why the then Irish constitutional balance in relation to free speech and blasphemy was inappropriate, and reinforces the points made in the previous section about the potential legitimacy of blasphemy laws within a constitutional paradigm. 4.1

A Substantively Dangerous Law?

Whatever the blasphemy law contained in Section 36 of the Irish Defamation Act might have been, it was certainly not substantively dangerous. This is both because of its terms and because of the motivations of the legislature that brought the law into effect. Let us take the second of these issues first. There were two related reasons why the government of the day included reference to blasphemy in its new defamation legislation and, critically, neither was ideological. The first is the foundational one: the government legislated for blasphemy because the Constitution required that blasphemy be a crime punishable by law. Furthermore, in Corway v Independent Newspapers38 (an unsuccessful application for leave to bring a private prosecution for blasphemy), the Irish Supreme Court had, quite remarkably, held that the concept of blasphemy was so uncertain that it could not give effect to the constitutional clause in the absence of legislative clarification. Finally, as was mentioned above, the 1961 Defamation Act, to be replaced by the 2009 law, had made provision for the operation of blasphemy cases. Thus, the government had a constitutional obligation to legislate for blasphemy, the highest court in the land had strongly implied that this was necessary and, because its statutory predecessor had dealt with the issue and was now to be abolished, failure to reference it in the 2009 Act might be seen as an unconstitutional abolition of the constitutional crime of blasphemy by stealth. This leads to the second underlying motivation of the government in 2009. If the reason why it had to legislate for blasphemy was because of a constitutional obligation, and if it had no interest in doing so, why did it not instead hold a referendum to amend the Constitution to remove the reference to blasphemy? The answer is because the constitutional clause had never had any substantive impact, and hence holding a referendum to abolish it was regarded, at the time, as a waste of money when Ireland was going through a deep economic recession. As the then minister for justice commented some years later: I decided that there was no way I was going to recommend to the Cabinet, in the economic climate that we had in 2009, when the Government were cutting people’s wages, where people were losing

37 See Kevin Doyle, Ireland’s Blasphemy Laws are “Embarrassing” and Need to be Repealed, Minister Harris, Irish Independent (8 May 2017), www​.independent​.ie/​irish​-news/​news/​irelands​ -blasphemy​-laws​-are​-embarrassing​-and​-need​-to​-be​-repealed​-minister​-harris​-35691694​.html, last accessed 27 May 2020; Emer O’Toole, I’m not Just Embarrassed My Country Invited Stephen Fry on TV then Investigated Him for Blasphemy – I’m angry, Independent (7 May 2017), www​.independent​ .co​.uk/​voices/​stephen​-fry​-irish​-tv​-investigated​-blasphemy​-laws​-ireland​-embarrassed​-secularism​-angry​ -a7722906​.html, last accessed 27 May 2020. 38 [1999] 4 IR 484; [2000] 1 ILRM 426. For analysis see Neville Cox, 22 Dublin University Law Journal (ns) 201 (2000); Stephen Ranalow, Bearing a Constitutional Cross – Examining Blasphemy and the Judicial Role in Corway v. Independent Newspapers, 3 Trinity College Law Review 95 (2000).

Blasphemy, freedom of expression and constitutional rights in Ireland  409 their jobs [...] to have an expensive referendum solely on the issue of blasphemy. I’d be laughed out of court [...].39

The government, in other words, needed to legislate for blasphemy; but the last thing that it wanted was an effective law. The compromise that it appeared to reach was to enact a law that would have precisely no practical application.40 Thus, Section 36 reads as follows: (1) A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding €25,000. (2) For the purposes of this section, a person publishes or utters blasphemous matter if – (a) he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and (b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage. (3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates. (4) In this section “religion” does not include an organisation or cult – (a) the principal object of which is the making of profit, or (b) that employs oppressive psychological manipulation – (i) of its followers, or (ii) for the purpose of gaining new followers.

The crime therefore involves three elements: (1) publication of material that causes outrage among a substantial number of adherents; (2) intention to cause such outrage; and (3) a defence if the publication has any kind of redeeming social importance. But the point is that virtually no publication (and certainly no publications that have been at the root of blasphemy controversies over the last 200 years in Europe) could fall foul of this law. The law, in other words, was decorative rather than substantively effective – although, as is discussed below, this is probably the main reason why people objected to it. In this regard, the overblown furore surrounding Stephen Fry in 2017 is worth mentioning. This was widely reported as a situation where the entertainer was being investigated,41 even 39 See www​.broadsheet​.ie/​2017/​05/​08/​we​-believed​-that​-we​-would​-never​-see​-a​-prosecution​-for​-it/​, last accessed 27 May 2020. 40 In 2017, in the context of a radio discussion about the Stephen Fry controversy, the 2009 minister for justice had discussed a comment previously made by the current author to the effect that the then government had rendered blasphemy law ‘completely unenforceable’ and was asked whether this had been the government’s intention. He replied: ‘To a certain extent it was [...] we put in so many hurdles within in order to ground the prosecution that we believed that we would never see a prosecution for it.’ www​ .broadsheet​.ie/​2017/​05/​08/​we​-believed​-that​-we​-would​-never​-see​-a​-prosecution​-for​-it/​, last accessed 27 May 2020. See also Ryan Nugent, We Made Blasphemy Law ‘Almost Impossible to Prosecute’ Former Minister Says About Stephen Fry Garda Investigation, Irish Independent (8 May 2017), www​ .independent​.ie/​irish​-news/​we​-made​-blasphemy​-law​-almost​-impossible​-to​-prosecute​-former​-minister​ -says​-about​-stephen​-fry​-garda​-investigation​-35690071​.html, last accessed 27 May 2020. 41 See, for example, John Shaman, Stephen Fry under Police Investigation for Blasphemy after Branding God an ‘Utter Maniac’, Independent (6 May 2017), www​.independent​.co​.uk/​news/​world/​ europe/​stephen​-fry​-blasphemy​-god​-utter​-maniac​-ireland​-gardai​-rte​-meaning​-of​-life​-atheist​-a7722081​ .html, last accessed 27 May 2020; Robert Mendick, Stephen Fry under Police Investigation for Blasphemy after Branding God an ‘Utter Maniac’, Telegraph (6 May 2017), www​ .telegraph​ .co​

410  Constitutions and religion prosecuted (with activist groups arguing that this indicated the dangerousness of the law); but this is simply not true. What had happened was that, some two years after the relevant broadcast, a member of the public went to a local police station and reported that, in his view, a crime had been committed during the broadcast in question. Some time later, having heard nothing from the authorities, he wrote to the police commissioner, at which point he was telephoned and reassured that his complaint was under investigation. The matter was then reported in the Irish Independent newspaper42 and, thereafter, the global media – with many such reports inaccurately conveying the impression that this was a full-blown police investigation with the likelihood of a prosecution.43 Finally, a couple of days later, the police confirmed that, as there was precisely no evidence that anyone had been outraged by the comments and thus that the crime had been committed, the matter would be dropped.44 In other words, the situation − far from demonstrating that the law was dangerous − indicated that it was ineffective. Indeed, it is notable that in August 2017, a report by the US Commission on International Religious Freedoms found that Ireland had the least restrictive blasphemy law in the world.45 4.2

The Link with the Pakistani Law

Opponents of the Irish law argued that it linked to and provided support for the draconian law in Pakistan in two ways. It was suggested first that, in pushing for an international blasphemy standard, Pakistan had used the Irish law as a model;46 and second, that the mere existence of

.uk/​news/​2017/​05/​06/​stephen​-fry​-police​-investigation​-blasphemy​-branding​-god​-utter/​, last accessed 27 May 2020; James Brennan, Stephen Fry may be fined €25,000 for Blasphemy in his “Meaning of Life” Interview with Gay Byrne, The Liberal (7 May 2017), http://​theliberal​.ie/​stephen​-fry​-may​-be​-fined​ -e25000​-for​-blasphemy​-in​-his​-meaning​-of​-life​-interview​-with​-gay​-byrne/​, last accessed 27 May 2020; Stephen Fry Under Investigation by Irish Police for Alleged Blasphemous Remarks, Irish Central (7 May 2017), www​.irishcentral​.com/​culture/​entertainment/​stephen​-fry​-under​-investigation​-by​-irish​ -police​-for​-alleged​-blasphemy, last accessed 27 May 2020. 42 McMahon, supra note 34. 43 Indeed, following the decision not to proceed with the investigation, an English broadsheet newspaper reported that: Stephen Fry Blasphemy Prosecution in Ireland Reportedly Dropped, Telegraph (10 May 2017), www​.telegraph​.co​.uk/​news/​2017/​05/​09/​stephen​-fry​-blasphemy​-prosecution​-ireland​ -reportedly​-dropped/​, last accessed 27 May 2020, which carries the entirely incorrect inference that a blasphemy prosecution had ever been taken against him. 44 Cathal McMahon, Stephen Fry Blasphemy Probe Dropped after Gardaí Fail to Find a Substantial Number of Outraged People, Irish Independent (8 May 2017), www​.independent​.ie/​irish​-news/​ stephen​-fry​-blasphemy​-probe​-dropped​-after​-garda​-fail​-to​-find​-substantial​-number​-of​-outraged​-people ​ -35692915​.html, last accessed 27 May 2020; No Blasphemy Investigation into Stephen Fry’s Comments, RTE (9 May 2017), www​.rte​.ie/​entertainment/​2017/​0508/​873567​-no​-blasphemy​-investigation​-into​ -stephen​-frys​-comments/​, last accessed 27 May 2020. 45 See www​.uscirf​.gov/​sites/​default/​files/​Blasphemy​%20Laws​%20Report​.pdf, last accessed 27 May 2020. 46 See Pakistan’s submissions to the Ad Hoc Committee on the Elaboration of Complementary Standards in 2009 (which would play into its report on Racism, Racial Discrimination, Xenophobia and All Forms of Discrimination: Comprehensive Implementation of and Follow-Up to the Durban Declaration and Programme of Action). See report to the Human Rights Council A/HRC/13/55, www​ .article19​.org/​data/​files/​pdfs/​publications/​racism​-racial​-discrimination​-xenophobia​-and​-all​-forms​-of​ -discrimination​.pdf, last accessed 27 May 2020.

Blasphemy, freedom of expression and constitutional rights in Ireland  411 the Irish law undermined international efforts to condemn the Pakistani law.47 Both propositions, however, are ill founded. In the first place, the international model suggested by Pakistan had used only one element of the Irish law (that blasphemy would be committed if a publication caused gross outrage among a substantial number of adherents). It did not, however, refer to the other two elements of the Irish law – that there must be intention to offend and that the publication could be defended by showing that it had value. These two elements, were, however, fundamental to the Irish law and are strong protections for freedom of expression (and indeed rendered the law unworkable). They were, moreover, so fundamental that it is simply a misnomer to say that the proposed Pakistani standard was actually based on the Irish model. Indeed, it is also notable that the maximum penalty for committing blasphemy under the Irish law was a fine – in other words, that there could be no question of imprisonment or worse following conviction. This leads to the second point. What is outrageous about the nature and especially the operation of Pakistan’s law is not that it targets blasphemy simpliciter, but that the penalties are draconian (the penalty for insulting the Prophet is a mandatory death sentence), and that the law itself operates in a spirit of vigilante justice and regularly with complete disregard for the right to fair procedures.48 There was, of course, no question of either of these concerns arising with the Irish law. Thus, the correct response, if Pakistan were to argue that its law was genuinely buttressed by the Irish law, should have been to point out the differences between the two – in that these differences are the principal reason why the former is unacceptable from a human rights standpoint. The fact that the international human rights movement failed to do so begs many questions. 4.3

The ‘Embarrassing’ Nature of the Law and the Link to Public Morality

This leads us, however, to the more significant reason why the enactment of the law and the Stephen Fry situation generated such a reaction of outrage and brings us back to the proper role of a blasphemy law within a constitutional balance. It was suggested earlier that freedom of expression can legitimately be restricted in the name of public morality; and that where reverence for God forms part of a state’s public morality, blasphemous speech can be restricted on this basis (in the same way as hate speech or racist speech or holocaust denial may be restricted where opposition to racism or homophobia or the need to preserve and reinforce the memory of the awfulness of the holocaust forms part of the public morality of a state that prohibits these things). By the same token, however, it is not constitutionally acceptable to prohibit speech in the name of public morality where that speech (like blasphemy in 2009 Ireland) does not offend against that public morality. This is a critical point. In 1937, when the Irish Constitution with its clause deeming blasphemy to be a crime was promulgated, there was an unmistakably religious feel to Irish

47 Jeremy Patrick, The Curious Persistence of Blasphemy, 23 Florida Journal of International Law 187 (2011). 48 See, for example, Asad Hashim, Living in Fear Under Pakistan’s Blasphemy Law, Al-Jazeera (17 May 2014), www​.aljazeera​.com/​indepth/​features/​2014/​05/​living​-fear​-under​-pakistan​-blasphemy​ -law​-20145179369144891​.html, last accessed 27 May 2020.

412  Constitutions and religion public morality.49 The connection between Roman Catholic teaching and Irish society, Irish law and Irish social policy was undeniable and readily evident. The Irish Constitution itself is shot through with confessional, religious language and, certainly in 1937, this was not merely symbolic; rather, it had clear substantive impact. In particular, it meant that the operation of constitutional rights, including the right to freedom of expression, was often contingent on the question of whether it would offend against Roman Catholic doctrine. Thus, to take a few of multiple examples, divorce was constitutionally prohibited; a Thomistic view of natural law infused the process of constitutional interpretation; there appeared to be a constitutional enshrinement of distinct societal roles for men and women;50 young women who had had children outside of wedlock often had their children taken from them and were condemned into a life of near slavery;51 and, most insidiously, child sexual abuse by Roman Catholic priests was routinely covered up.52 This state of affairs continued up until the early 1990s − at which point, in a quite remarkable ‘revolution’, the situation very quickly changed almost completely.53 There are, no doubt, multiple reasons for this change, an evaluation of which is beyond the scope of this chapter; but what is clear is that this was a revolution to secularism that altered the legal and societal landscape irrevocably. Thus, again by way of a few examples, in 1996 the constitutional ban on divorce was lifted; there was and is unanimous condemnation of former Roman Catholic practices in relation to covering up abuse scandals and in relation to the treatment of single mothers (with a widely expressed − though obviously not unanimous − view that this is evidence that the Roman Catholic Church is irretrievably flawed);54 in 2015, Ireland became the first country in the world to legalize same-sex marriage as a result of a popular referendum; in May 2018, the Constitution was amended to remove the constitutional protection for foetal life; and finally, in October 2018, as discussed above, the constitutional reference to blasphemy was removed. These tangible changes, however, do not do full justice to what happened. More intangibly, but more notably, the old approach of deference to Roman Catholic teaching at a societal level was replaced by one that regards Roman Catholic doctrine with suspicion and is uncomfortable with the idea that the church should have any direct control over ‘non-religious’ elements

49 Tom Inglis, Moral Monopoly: The Rise and Fall of the Catholic Church in Ireland (1998); Louise Fuller, Irish Catholicism since 1950: The Undoing of a Culture (2004); Bryan Fanning, Histories of the Irish Future 174 ff. (2015); Tony Fahey, The Catholic Church and Social Policy, 49 The Furrow 202 (1998); William Crotty, The Catholic Church in Ireland and Northern Ireland: Nationalism, Identity and Opposition, in The Catholic Church and the Nation-State: Comparative Perspectives (Paul Christophe Manuel et al. eds., 2006). 50 Article 41.2 of the Constitution appears to idealize the role of women within the home. 51 www​.justice​.ie/​en/​JELR/​Pages/​MagdalenRpt2013, last accessed 27 May 2020. 52 See Paul Cullen, 30 Years of Church and State Cover Up of Child Sex Abuse, Irish Times (27 November 2009), www​.irishtimes​.com/​news/​30​-years​-of​-church​-and​-state​-cover​-up​-of​-child​-sex​-abuse​ -1​.779070, last accessed 27 May 2020. 53 Inglis, supra note 49; Fuller, supra note 49; Jean-Christophe Penet, From Idealised Moral Community to Real Tiger Society: The Catholic Church in Secular Ireland, 3 Estudios Irlandeses 143-153 (2008); Mary Kenny, The End of Catholic Ireland, Guardian (8 May 2012), www​.theguardian​ .com/​commentisfree/​belief/​2012/​aug/​08/​end​-of​-catholic​-ireland, last accessed 27 May 2020. 54 See Nick Bramhill, Byrne Describes Catholic Church as ‘Force for Evil’, Irish Times (31 March 2013), www​.irishtimes​.com/​news/​byrne​-describes​-catholic​-church​-as​-force​-for​-evil​-1​.1344551, last accessed 27 May 2020.

Blasphemy, freedom of expression and constitutional rights in Ireland  413 of Irish life such as healthcare and education.55 This is not, of course, to say that everyone shares this belief; but simply that, insofar as Irish society broadly is concerned, things have changed radically. Confessionalism has been replaced by secularism as the touchstone for moral judgement with a strong focus on the liberty of the individual, inter alia where private matters of sexuality are concerned. This is hugely important to our blasphemy discussion, because of what it says about the nature of modern Irish public morality. The old, religious, public morality – that which existed at the time that the blasphemy clause in the Constitution was promulgated – has been replaced by a secular, individual focused and somewhat anti-clerical public morality. The old public morality is the kind that, on my analysis, is necessary if a blasphemy law is to be justified. The new public morality, far from sustaining a blasphemy law, actually condemns it. This is the reason why the reaction to the enactment of a manifestly ineffective blasphemy law in 2009 was so strong and so outraged. A blasphemy law can only be justified by a religious public morality; thus, the 2009 Act carried the symbolic message that Irish public morality in 2009 was highly religious. From the standpoint (however subconscious) of many people, this represented a huge misstatement of the reality of modern Ireland. Indeed, it was not simply a technical misstatement; it was an offensive one, because the old public morality was not regarded as a mere historical artefact − rather (unsurprisingly, given the nature of morality), the view was that Ireland had moved from a situation of moral error into something that was better and truer. In other words, the symbolic message conveyed by the 2009 Act was particularly insidious: it implied to the world that the moral change of which people were proud had not happened, and that Ireland was still rooted in a public moral vision that was increasingly regarded with loathing.56 This is the real reason why the retention, up until January 2020 of a ‘crime of blasphemy’ was inappropriate in Ireland. A blasphemy law restricts speech in the name of public morality, but has no justification where, as in modern Ireland, public morality does not demand (and even objects to) that restriction. On the other hand, this is a localized conclusion specific to Ireland: in other words, any move from this proposition to the broader view that a blasphemy law can never be constitutionally justified or can never pass muster as a matter of international human rights law either must be based on a principle that would also condemn hate speech and holocaust denial laws (ie, a principle that speech cannot be limited in the name of public morality), or must derive from the view that any society whose public morality demands reverence for God must simply be wrong. For all the reasons discussed in the previous section about the empirical unprovability of morality, however, this latter conclusion − when presented as an objective, factual proposition − is simply unsustainable.

55 See, for example, Poll Shows Overwhelming Opposition to Catholic Church Involvement in New Maternity Hospital, Irish Examiner (24 April 2017), www​.irishexaminer​.com/​breakingnews/​ireland/​ poll​-shows​-overwhelming​-opposition​-to​-catholic​-church​-involvement​-in​-new​-maternity​-hospital​ -786989​.html, last accessed 27 May 2020. 56 See, for example, Anna O’Donoghue, Hozier Says He’s ‘Mortified’ Over Stephen Fry Blasphemy Probe, Irish Examiner (8 May 2017), www​.irishexaminer​.com/​breakingnews/​entertainment/​hozier​ -says​-hes​-mortified​-over​-stephen​-fry​-blasphemy​-probe​-788794​.html, last accessed 27 May 2020.

414  Constitutions and religion

5. CONCLUSION It seems fair to suggest that there is no real prospect of another European state legislating for blasphemy in the near future. In other words, we can speak of an emerging constitutional consensus in Europe against the acceptability of blasphemy laws − something that may eventually play out in the approach of the ECtHR to the issue. The risk, however, is that Europe (and indeed the Western world generally) will mistake this regional consensus either for global consensus or, worse, for objective truth. The point is that in different parts of the world – and especially in those Islamic countries that argued for defamation of religion resolutions before the United Nations between 1999 and 201157 – God is central to a nation’s public morality, and this naturally plays out in its laws and in the way in which its society does business. The secular West and, more importantly, the international human rights movement, faced with these very different models, has the choice either of accommodating the views of these countries within international rights discourse (and thus ensuring that that discourse is genuinely international) or rejecting it as wrong. The former course of action is ideologically difficult because it implicitly recognizes the relativist nature of the moral evaluations of all societies; but the unprovable nature of moral judgement arguably means that it is necessary and that the alternative is far more dangerous. This is why the blasphemy issue is such a poignant one: far from merely being an anachronism, the ongoing existence of blasphemy laws in many countries represents the most dramatic context in which the West must deal with its history of cultural superiority and its relationship with the Islamic world, and the international rights movement must assess whether it has the courage and humility genuinely to be international.

57 See Robert Blitt, Should New Bills of Rights Address Emerging International Human Rights Norms? The Challenge of ‘Defamation of Religion’, 9 North Western University Journal of International Human Rights 13 ff. (2010–2011); Joshua Foster, Prophets, Cartoons and Legal Norms: Rethinking the United Nations Defamation of Religion Provisions, 48 Journal of Catholic Legal Studies 30 ff. (2009); Jeroen Temperman, Blasphemy, Defamation of Religions and Human Rights Law, 26 Netherlands Quarterly of Human Rights 530 (2008).

24. Pluralism and personal laws in India Farrah Ahmed1

1. INTRODUCTION Personal law systems regulate family matters by applying different ‘personal laws’ – ostensibly based on religious doctrine – to people depending on the religious group with which they are identified. One-third of the world’s population lives under personal law systems;2 they are therefore a very significant constitutional response to religious pluralism. This chapter interrogates a particularly important personal law system – that of India – against the values that are often invoked by defenders of personal laws. While the study is restricted to India, it has implications beyond the Indian context. Parts of Indian personal law are in force in other jurisdictions: the Dissolution of Muslim Marriages Act 1939 is in force in Pakistan and Bangladesh, with some modifications and alterations, as well as in India.3 Aspects of the Indian personal law system have influenced those of other states, such as Pakistan,4 Uganda and Kenya.5 Commentators on the South African personal law system learn from aspects of the Indian system.6 Comparisons between the personal law system of India and the millet system in Israel are thought to be helpful in addressing the human rights concerns raised by both.7 Personal law systems are important even to states which do not have them. Even states that do not have personal law systems sometimes recognize personal laws through private international law.8 English courts have had to adjudicate on personal laws, including Indian personal laws – especially with respect to the family matters of immigrants from Asia and

1 This chapter draws on Farrah Ahmed, Religious Freedom Under the Personal Law System (2016). 2 Yuksel Sezgin, Human Rights Under State-Enforced Religious Family Laws in Israel, Egypt, and India 3 (2013). 3 See Rohit De, Mumtaz Bibi’s Broken Heart: The Many Lives of the Dissolution of Muslim Marriages Act, 46 Indian Econ & Soc Hist Rev 105 (2009); Javaid Rehman, The Sharia, Islamic Family Laws and International Human Rights Law: Examining the Theory and Practice of Polygamy and Talaq, 21 Int’l JL Pol’y & Fam 108, 121 (2007). 4 For example, Hindu Community Leaders Disagree on Divorce Clause, Express Trib (17 October 2011). 5 See Prakash A. Shah, Attitudes to Polygamy in English Law, 52 Int’l & Comp L Q 369, 371 (2003); PK Virdi, The Grounds for Divorce in Hindu and English Law: A Study in Comparative Law 39–42 (1972). 6 See Christa Rautenbach, Phenomenon of Personal Laws in India: Some Lessons for South Africa, 39 Comp & Int’l LJS Afr 241, 246 (2006). 7 See Marc Galanter and Jayanth Krishnan, Personal Law Systems and Religious Conflict: A Comparison of India and Israel, in Religion and Personal Law 270 (Gerald Larson ed, 2001). 8 See Pascale Fournier, Dossier 27: The Reception of Muslim Family Laws in Western Liberal States, Women Living Under Muslim Laws (December 2005), www​.wluml​.org/​fr/​node/​504, last accessed 7 May 2019; Archana Parashar, Polygamous Marriage in Conflict of Laws, 2 Islam & Comp LQ 187, 192–93 (1982); Shah, supra note 5, at 371.

415

416  Constitutions and religion Africa.9 French courts are frequently called upon to adjudicate upon the validity of marriage,10 divorce,11 mahr and maintenance12 under the personal law of Algeria and Morocco. The German13 and Dutch14 courts have faced similar issues. This study of the Indian personal law system may contribute to the question of when jurisdictions which recognize personal laws should and should not do so. The Indian personal law system has been influential in debates about religious arbitration, religious tribunals and Sharia councils in Europe and North America.15 It occupies an important space in the background of key debates on multiculturalism. It is often cited as a model of toleration16 and as a model for integrating minorities.17 Commentary on how multiculturalism affects women often uses the (Indian) personal law system – particularly the Shah Bano case – as a case study. The system is used to illustrate the dangers that multiculturalism poses for women.18 It is used to illustrate the importance that personal law can have for religious identity.19 It is used to argue that a majority should not force an oppressed group to confirm to human rights norms.20 It is used to illustrate how a deliberative model of multiculturalism would work.21 This chapter’s assessment of the Indian personal law system could therefore prove useful for a range of issues and jurisdictions. In what follows, the chapter evaluates the Indian personal law system against values to which it is sometimes thought to contribute. These include respect for diversity (Section 2); choice and freedom (Section 3); community life and group autonomy (Section 4); recognition of religious identities (Section 5); and religious freedom (Section 6).

Shah, supra note 5, at 371. Fournier, supra note 8, at 68. 11 See Gilles Cuniberti, French Muslims Getting Divorced Back Home, Conflictoflaws.net (12 February 2008), http://​conflictoflaws​.net/​2008/​french​-muslims​-getting​-divorce​-back​-home/​, last accessed 7 May 2019. 12 See Pascale Fournier, Muslim Marriage in Western Courts: Lost in Transplantation 52 (2010). 13 Fournier, supra note 8, at 70–72. 14 Maurits Berger, Sharia Law in Canada – Also Possible in the Netherlands?, in Crossing Borders: Essays in European and Private International Law, Nationality Law and Islamic Law in Honour of Frans Van Der Velden 173 (P. van der Grinten and T. Heukels eds, 2006). 15 John Eekelaar, From Multiculturalism to Cultural Voluntarism: A Family‐Based Approach, 81 Pol Q 344, 349 (2010); Bas Tönissen and Jochem Gerritsen, The Road Not Taken – Islamic Shari’a Courts in the Netherlands, Scribd (14 December 2010), www​.scribd​.com/​doc/​49194046/​The​-Road​-Not​-Taken​ -Islamic​-Shari​-a​-Courts​-in​-the​-Netherlands, last accessed 7 May 2019. 16 Wendy Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire 9, 33, 44 (2006); Michael Walzer, On Toleration (Castle Lectures in Ethics, Politics, and Economics) 14–19 (1997). 17 Bhiku Parekh, Integrating Minorities, in Race Relations In Britain: A Developing Agenda 1, 5 (Tessa Blackstone, Bhiku Parekh and Peter Sanders eds, 1998). 18 Seyla Benhabib, The Claims Of Culture: Equality And Diversity In The Global Era 100 (2002). 19 Jeff Spinner‐Halev, Feminism, Multiculturalism, Oppression, and the State, 112 Ethics 84, 99 (2001). 20 Id. 21 Siobhan Mullally, Feminism and Multicultural Dilemmas in India: Revisiting the Shah Bano Case, 24 OJLS 671 (2004); Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights 81–83 (2001). 9

10

Pluralism and personal laws in India  417

2.

RESPECT FOR DIVERSITY

The rules for working out which personal law group (if any) a person falls into are complex. It is difficult to predict how the courts will deal with cases that do not fit neatly into the established personal law groups.22 In many cases, personal laws are applied to those who do not subscribe to the interpretation of religion that the personal laws claim to codify. Personal laws are based on an understanding of these religions that glosses over even strong differences in interpretation of religious doctrine.23 The personal law system’s understanding of the Hindu religious doctrine is applied even to those who dissent from this understanding. For example, the Hindu Adoption and Maintenance Act 1956 recognizes a particular form of adoption known as dattaka, in preference to other customary forms of adoption practised by Hindus.24 There are customary forms of Hindu adoption that allow married women to adopt in their own right. But the Hindu Adoption and Maintenance Act 1956 does not permit such adoptions, except in unusual circumstances.25 Furthermore, there are customary Hindu forms of adoption that allow the adoption of an unlimited number of children, while the Hindu Adoption Act permits the adoption of only two children.26 Similarly, the courts have interpreted the Hindu Marriage Act 1955 to mean that saptapadi (ie, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire) and datta homa (invocation before the sacred fire) must be performed in order to validate a Hindu marriage. However, these ceremonies are not customarily performed in many Hindu communities.27

22 See Jacob Levy, Three Modes of Incorporating Indigenous Law, in Citizenship in Diverse Societies 315 (Will Kymlicka and Wayne J. Norman eds, 2000). 23 See Marc Galanter, The Displacement of Traditional Law in Modern India, 24 J Soc Issues 65 (1968); Kumkum Sangari, Gender Lines: Personal Laws, Uniform Laws, Conversion, 27 Soc Sci 17 (1999). All those associated with these religions have this single state-endorsed interpretation applied to them. See Madhu Kishwar, Codified Hindu Law: Myth and Reality, 29 Econ & Pol Wkly 2145 (1994). Some have argued that this homogenizing trend in the personal laws was motivated by Hindu and Muslim nationalism. 24 See Kishwar, supra note 23, at 2153. 25 See the Hindu Adoptions and Maintenance Act, 1956, 8(c). 26 Hindus cannot, under the Act, adopt a boy if they already have a son, or adopt a girl if they already have a daughter. 27 See Flavia Agnes, Hindu Men, Monogamy and Uniform Civil Code, 30 Econ & Pol Wkly 3238 (1995); Werner F. Menski, Comparative Law in a Global Context: The Legal Systems of Asia and Africa 253 (2006); Nagalingam v Sivagami AIR 2001 SC 3576 (India) (‘it has been held that if the parties to the second marriage perform traditional Hindu form of marriage, “Saptapadi” and “Datta Homa” are essential ceremonies and without there being these two ceremonies, there would not be a valid marriage’). The latter reading, however, is a questionable interpretation of the Act (Werner F. Menski, The Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda, 9 Ger LJ 211, 286–88 (2008)).

418  Constitutions and religion Even more surprising is that Sikhs, Buddhists, and Jains28 – who generally do not think of themselves as Hindus – are regarded as such by Hindu personal law.29 They are also, therefore, governed by this state-sanctioned interpretation of Hindu law, even though they have religious beliefs quite distinct from Hindus.30 Some Sikhs, as well as Hindus, who disagree with the state’s understanding of Hindu doctrine have requested exemptions from Hindu personal law; but so far these requests have been denied.31 Similarly, Muslim personal law applies regardless of ‘peculiarities in belief, orthodoxy or heterodoxy’.32 But, like Hindu law, Muslim personal law sometimes accommodates custom33 and the courts will generally apply the law of the sect or ‘school’ to which at least one of the parties belongs,34 thereby recognizing and accommodating differences in the religious belief within a tradition. However, it is unclear what criteria, if any, would be used by courts in deciding whether to recognize a sect or school for the purpose of applying personal law. Thus, an important concern about personal law systems is that ‘syncretic, ambiguous or localised’ identities are unlikely to receive special legal recognition, and are more likely to be subsumed under a larger, legally recognized religious sect or school.35

3.

CHOICE AND FREEDOM

The personal laws apply to children,36 who are generally presumed to follow the religion of their father,37 and even foetuses.38 Even an adult has only limited control over which of the personal laws or general family laws, or which combination of these laws, applies to him or her. For instance, a person may renounce Hinduism and still be governed by Hindu personal 28 See Shuganchand v Prakash Chand AIR 1967 SC 506 (India); Bal Patil & Anr v Union of India & Ors on 8 August, 2005, indiankanoon​.org/​doc/​502741/​, last accessed 7 May 2019, on Jains as a minority; Ronojoy Sen, The Indian Supreme Court and the Quest for a “Rational” Hinduism, 1 South Asian Hist & Culture 18 (2010). 29 See Hindu Marriage Act 1955, Section 2; Hindu Succession Act 1956; Hindu Adoptions and Maintenance Act 1956. 30 However, some tribal people are exempted from Hindu law (Poonam P. Saxena, Family Law Lectures: Family Law II 6–7 (2007)). 31 See Kishwar, supra note 23, at 2151; Menski 2008, supra note 27, at 293; Partap Singh v Union of India AIR 1985 SC 1695; Menski 2006, supra note 27, at 250. Also, see Centre Says No to Separate Sikh Marriage Act, SAD to Meet PM, Indian Express 2011. 32 See Paras Diwan, Muslim Law In Modern India 1 (8th ed 2000); Asaf A. A. Fyzee and Tahir Mahmood, Cases in the Muhammadan Law of India, Pakistan And Bangladesh 46 (5th ed 2008). 33 See Diwan, supra note 32, at 8; Fyzee and Mahmood, supra note 32, at 51. Hindu personal law does as well (Hindu Marriage Act 1955, ss 5,7). 34 See Diwan, supra note 32, at 11; Fyzee and Mahmood, supra note 32, at 54; Mahomedan Law 27 (M. Hidayatullah and A. Hidayatullah eds, 18th ed 1977); State of Bombay v Narasu Appa Mali AIR 1952 Bom 84 [20] (Gajendragadkar J) (India); Rajah Deedar Hossain v Ranee Zuhoornussa (1841) 2 MIA 441. 35 See Michael R. Anderson, Islamic Law and the Colonial Encounter in British India, in Women Living Under Muslim Laws, supra note 8; Sen, supra note 28, at 117. 36 See Hindu Marriage Act 1955, Section 2; Hindu Succession Act 1956, Section 2; Hindu Adoptions and Maintenance Act 1956, Section 2; Fyzee and Mahmood, supra note 32, at 46. 37 See A.M Bhattacharjee, Hindu Law and the Constitution 139 (2nd ed 1994); Fyzee and Mahmood, supra note 32, at 46. 38 See Hindu Succession Act 1956, Section 20.

Pluralism and personal laws in India  419 law.39 It is unlikely that renunciation of all religion will allow someone to escape the system; it is more likely to lead to his or her being classified as a Hindu.40 Which personal law, if any, is applicable to an individual is decided by the state system of courts.41 In some circumstances a person subject to a personal law can choose to be governed by one of the general codes of family law. For instance, the Special Marriage Act 1954 is an ostensibly secular42 enactment43 which allows the registration of marriages solemnized according to both civil and traditional or religious ceremonies.44 The Special Marriage Act allows two people of the same or different faiths to marry;45 does not recognize polygamous marriages;46 does not grant men a more expansive power of divorce than it does women;47 and gives courts the power to grant alimony or maintenance to the woman.48 So, two people who meet the requirements have the option of marrying under the Special Marriage Act 1954 and thereafter their marriage will be governed under that Act. On the other hand, if the very same people were to marry under a personal law – which appears to be much more usual49 – either of them does not have the option to later choose to be governed by the Special Marriage Act 1954 instead.50 This significantly undermines the power of each party in a marriage to opt out of the system.51 It is also noteworthy that the main means of escaping the system involves getting married. Moreover, the Special Marriage Act 1954 has major limitations. Only those marriages registered under the Act are governed by its provisions.52 The Act has not been well publicized and only a small number of marriages are actually registered under it.53 Besides a lack 39 See Hindu Marriage Act 1955, Section 2; Hindu Succession Act 1956, Section 2; Hindu Adoptions and Maintenance Act 1956, Section 2; Bhattacharjee, supra note 37, at 138. 40 This is because of the wide definition of ‘Hindu’ in Section 2 of the Hindu Marriage Act 1955. 41 See Family Courts Act 1984. 42 That is, not based on conventional religious norms. 43 But the Special Marriage Act 1954, Section 21A creates an exemption from the general rule that those marrying under the Act will be governed by the Indian Succession Act 1925. Instead, if ‘a marriage is solemnized under [the] Act [by] any person who professes the Hindu, Buddhist, Sikh or Jain religion with a person who professes the Hindu, Buddhist, Sikh or Jain religion’, religious personal law will govern instead of secular law. The object of this exemption is to protect coparcenaries. It has been argued that it is discriminatory and intended to act as a disincentive to Hindus who want to marry a person from another personal law group. It also leaves such Hindus without the power to choose not to be governed by the Hindu personal law of succession. See Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India 98–99 (1999). 44 See Special Marriage Act 1954, Sections 4, 12(2). 45 Typically, people can only marry others of a particular faith under personal laws. However, Muslim men can marry Christian or Jewish women under the Muslim law. 46 See Special Marriage Act 1954, Section 4(a). 47 Special Marriage Act 1954, Chapter 6. 48 Special Marriage Act 1954, Section 37. 49 See Flavia Agnes, Family Law Volume I: Family Laws and Constitutional Claims 97 (2011). 50 Special Marriage Act 1954, Section 15 provides for the application of the Act to marriages solemnized under a personal law on the application of both parties. 51 On the importance of freedom to change one’s mind, see ‘Enhancing Religious Practice?’ (Ahmed, supra note 1, at 151–52) on autonomy and binding oneself. 52 See Special Marriage Act 1954, Section 21. 53 See Agnes, supra note 49, at 97; Gurpreet Mahajan, Can Intra-Group Equality Co-Exist with Cultural Diversity? Re-Examining Multicultural Frameworks of Accommodation, in Minorities Within Minorities: Equality, Rights And Diversity 105–06 (A.I. Eisenberg and J. Spinner-Halev eds, 2004).

420  Constitutions and religion of awareness about the existence of this enactment, there are serious practical difficulties in having a marriage solemnized under the Act.54 One account of an attempt to register a marriage under the Act suggests that it is impossible to do so without identifying the religion(s) of the couple.55 The provisions of the Act, and their implementation, make it difficult for people who wish to marry against the wishes of their families to do so. Moreover, if a Hindu marries someone identified by the personal law system as non-Hindu under the Act, his or her property rights might be adversely affected.56 Even if one were willing to convert to another religion in order to escape the provisions of one’s personal law, there are still obstacles.57 The Caste Disabilities Removal Act 185058 prevents courts from enforcing some of the disabilities and forfeiture of rights that are associated with renunciation or conversion from a religion. But significant costs continue to attach to conversion, as conversion can affect marital status;59 the right to receive maintenance payments;60 the power of guardianship;61 the power to give a child up for adoption;62 the power to stop one’s spouse from giving one’s child up for adoption;63 and the inheritance rights of third parties, such as children of converts.64 Further, those identified as belonging to the ‘Scheduled Castes’65 – who are the beneficiaries of affirmative action measures by the state – no longer qualify for these measures on conversion to any religion which is not Hinduism, Sikhism or Buddhism.66 While the Constitution guarantees freedom of religion,67 in practice, several state-level enactments regulate conversions in a way that arguably amounts to an impediment to conversion.68 Even if one were willing to accept these disadvantages of, and practical obstacles to, conversion, recent case law suggests that, even on conversion, one’s former personal

54 See Coomi Kapoor, Act of Vigilantism, Indian Express (17 April 2007), http://​ archive​ .indianexpress​.com/​news/​act​-of​-vigilantism/​28598, last accessed 7 May 2019. 55 ‘When I presented my daughter’s fiancé’s documents with the column for religion left blank, the marriage officer took great offence and snapped that he had never heard of anyone doing such a thing in all his years’ (Kapoor, supra note 54). 56 See Special Marriage Act 1954, Sections 19, 21A. 57 See Laura D. Jenkins, Legal Limits on Religious Conversion in India, 7 Law & Contemporary Problems 109 (2004); See also Sangari, supra note 23, at 36. 58 Also known as the Freedom of Religion Act. 59 It can provide an additional ground for divorce (eg, Hindu Marriage Act 1955, Section 13), and can cause the marriage to be dissolved, ipso facto, if both parties are Muslims who have been married under Muslim personal law and the man renounces Islam. See Fyzee and Mahmood, supra note 32, at 138–39; A.M. Bhattacharjee, Muslim Law and the Constitution 98–107 (2nd ed 1994). 60 See Hindu Adoptions and Maintenance Act 1956, Section 24. 61 See Hindu Minority and Guardianship Act 1956, Section 6; Helen Kinner v Sophia 14 MIA 309. 62 See Hindu Adoptions and Maintenance Act 1956, Section 9. 63 See Hindu Minority and Guardianship Act 1956, Section 9(3); D. Derrett, Religion, Law and the State in India 332–33 (1999). 64 See Bhattacharjee, supra note 37, at 126–27; Hindu Succession Act 1956, Section 26 (disqualification of children of converted parents); Agnes, supra note 49, at 94. 65 These are castes mentioned in the Indian Constitution which are entitled to certain benefits and affirmative action. 66 See Sen, supra note 28, at 117; The Constitution (Scheduled Castes) Order 1950, Section 4. 67 See ‘Religious Freedom under the Indian Constitution’ (Ahmed, supra note 1, at 35–36). 68 See Constitution of India 1950, Article 25; J.A. Redding, Human Rights and Homo-Sectuals: The International Politics of Sexuality, Religion, and Law, 4 Northwestern University Journal of International Human Rights 436, 461–66.

Pluralism and personal laws in India  421 law may continue to apply in some respects.69 In any case, proving conversion in court can be difficult, especially since the courts will often question bona fides.70 A pretended conversion for the purpose of eluding the personal law of the parties will be considered a ‘fraud upon the law and will not be permitted by the courts’.71 Thus, Indian religious freedom doctrine is slow to recognize disassociation or exit from a religion.72 This tendency to override an individual or group’s identification or disassociation with a religion is very much a characteristic of the personal law system. Thus, movement between the personal laws and general family laws can be complicated and unpredictable. Individuals living under the personal law system have little choice in what kind of law they are governed by.

4.

RELIGIOUS COMMUNITY AND GROUP AUTONOMY

The personal law system is often defended in the name of its contribution to ‘religious communities’.73 Socialization in a community can support autonomy with respect to cultural or religious group life. Socialization in a community gives individuals many of the skills and capacities required for autonomy. A community can also provide support – material and psychological – that can facilitate autonomy. It can bolster and protect individual self-respect, which is essential for autonomy.74 Moreover, if the community is associated with a culture or sub-culture, this could give members access to a range of meaningful options, thus facilitating autonomy.75 Many of the contributions that communities make to autonomy generally apply mutatis mutandis to religious communities. Communal practices are important to many religious individuals; without them, several facets of religious practice are unattainable.76 So, how do these remarks on religious communities affect our evaluation of the personal law system? Let us consider a narrative in support of this defence of the system. (This narrative is not meant to be historically accurate or applicable to all religious traditions, but only a thought experiment.) See Sarla Mudgal v Union of India (1995). See, for example, V.M. Ramakrishna Mudaliar v Smt Nagammal MANU/TN/0812/1995; Redding, supra note 68, at 461–66. 71 See Skinner v Orde (1875) ILR 1 All 230; Sarla Mudgal v Union of India (1995) 3 SCC 635; Lily Thomas v Union of India (2000) 6 SCC 224; Fyzee and Mahmood, supra note 32, at 47. 72 See Sastri Yagnapurushdasji v Muldas Bhundaras Vaishya AIR 1966 SC 1119; DAV College, Bhatinda v State of Punjab AIR 1971 SC 1731; Bramchari Sidheshwar Shai v State of West Bengal AIR 1995 SC 2089. 73 ‘The right of a group or a community of people to follow and adhere to its own personal law is among the fundamental rights and this provision should really be made amongst the statutory and justiciable fundamental rights’ (Mahboob A.B. Sahib Bahadur, Constituent Assembly of India Debates (1948)), http://​164​.100​.47​.194/​loksabha/​writereaddata/​cadebatefiles/​C14071947​.html, last accessed 7 May 2019. 74 See Chapter 5 (Ahmed, supra note 1, at 57–58, 105–31). 75 ‘It is only by being socialized into a culture that one can tap the options which give shape and content to individual freedom’ (Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics 170, 177–78 (1994); Will Kymlicka, Liberalism, Community, and Culture 162–82 (1989)). 76 See ‘Freedom from Religion’ (Ahmed, supra note 1, at 135–39). See also Rex Ahdar and Ian Leigh, Religious Freedom and the Liberal State 325–27 (2005). 69 70

422  Constitutions and religion Ravi lives in a largely Hindu village. He visits the local temple often, as do others in the village. He is confident that the gods worshipped by his village are adequately propitiated. (This ameliorates his fear of drought, floods and disease.) The priest is sincere. The priest’s welfare lies in the welfare of the village, as he depends on villagers’ offerings for his survival. If the village is hit by famine, they will have no offerings to make to him. In general, the villagers are generous in their offerings and do not break religious rules of conduct. They know each other and when Ravi is troubled, he asks the community to pray for him during communal prayer sessions. Thus, the way that this religious community functions plays a very important role in allowing Ravi to successfully practise his religion. At some point, Ravi hears that factory workers in the closest city make far more than he can hope to make by working his land. So he moves to the city with his family. The many challenges of city life are compounded by spiritual unease. He lives in a diverse neighbourhood without a common priest or a common temple. There are small shrines around his neighbourhood where he worships sometimes, but rarely in the company of his neighbours. He does not know them or their religious practices. He finds a priest in another neighbourhood who will carry out invocations for him, but this priest does not know him at all. He performs rituals in return for payment77 for hundreds of people he does not know, many of whom do not even share a neighbourhood. The priest’s success does not depend on the success of a geographically or socially bounded community. If Ravi’s neighbourhood were to be afflicted by a disease or if he were to lose his job, the priest would lose little. Ravi can no longer depend on the spiritual support of the other villagers or the sincerity of his priest. His former manner of religious self-identification (as resident of the village, a member of a certain caste and sect) is now meaningless to those around him. Without his religious community, he cannot have the same relationship with his gods as in the past. His view of the metaphysics of worship makes his individual invocations pointless, or at best quite weak.78 When he moved out of the village, he lost his ‘plug-in’ to a spiritual powerhouse whose energy he cannot generate by himself. Since he is unaware of the religious practices of his immediate neighbours, he also worries that their sins or irreverence might make him guilty by association – and a victim of their divine retribution. In other words, Ravi’s lost connection with his religious community significantly compromises his ability to practise his religion. If there is any sense in which Ravi has lost a connection to his religious community by moving to the city, can the personal law system ameliorate this loss? Aspects of the system, Hindu and Muslim law in particular, have been accused of promoting communalism79 and

This payment might be describing as an offering to the temple. Taylor writes of the Dinkas: ‘This collective action is essential for the efficacy of the ritual. You can’t mount a powerful invocation of the Divinities like this on your own in the Dinka world. This importance of corporate action by a community of which the individual is really and traditionally a member is the reason for the fear which individual Dinka[s] feel when they suffer misfortune away from home and kin’ (Charles Taylor, The Future of the Religious Past, in Religion: Beyond a Concept 181 (Hent de Vries ed, 2008). 79 The term is meant pejoratively; see Rochana Bajpai, The Conceptual Vocabularies of Secularism and Minority Rights in India, 7 J Pol Ideologies 179, 184 (2002). Gerald Larson defines it as ‘the selfish and separatist efforts of a particular religious group to act in ways contrary to the larger community or nation’ (Gerald Larson, Introduction to the Secular State in a Religious Society, in Religion and Personal Law in Secular India: A Call to Judgment 7 (Gerald Larson ed, 2001). Also see Agnes, supra note 43, at 117–18). 77 78

Pluralism and personal laws in India  423 undermining national unity by strengthening religious identity.80 Both laws clearly bring individuals into the ‘Hindu’ and ‘Muslim’ fold who might not otherwise be identified or self-identify as such.81 Diversity within all the religious groups in the personal law system is ignored.82 While there are problems that these features raise for religious autonomy, might these same features give Ravi some of what he lost when he left his village? In other words, could the categories Hindu, Muslim, Christian, Jew or Parsi give Ravi an imagined village, with some of the advantages that his former village had? Let us flesh out this potential line of defence of the personal law system. As a part of the system, Ravi has an identified community. He knows that all members will be governed by the same personal law and that many of them will follow the law. Moreover, the process of enumeration of religious communities through the census, mapping, mass media, democratic processes and political movements (including Hindu nationalism) make community members much more ‘visible’ to each other.83 When members of this community all follow a common set of rules, this might enable them, collectively, to act as Ravi’s village did. After all: [T]hese abstract communities were seen as increasingly agentive in character: they were viewed as gigantic collective actors, involving all their innumerable constituent members, such that an act of an individual or a group of Muslims came to be regarded as an ‘act of Muslims’ as a putative group in which all unacting members were in some sense involved, or at least implicitly subsumed.84

In a recent judgment on the Ayodhya dispute85 and commentary on it, for example, ‘Hindus’ and ‘Muslims’ were litigants and often cast as such agentive communities. It might be argued that the agentive nature of such a community might allow for the collective spiritual action that Ravi has lost. There will be those who are sceptical about any such argument. The best the personal law system can offer, they might say, is an assurance that a number of people will follow the law – probably because of the material consequences of not following it. This does not constitute a religious community of the kind Ravi has lost. It is a necessary condition of a religious community that its members believe in the religion in question. It is not enough that they follow rules of the religion. However, the religious beliefs of many of those identified by the personal law system as ‘Hindu’ are unknown, although we do know that many who do not believe in Hinduism are identified as Hindu.86 Therefore, Ravi could not be assured that those identified as Hindu by the personal law system actually share his beliefs. Without this assurance, it is

80 See Mohammed Ahmed Khan v Shah Bano Begum AIR 1985 SC 945; Agnes, supra note 43, at 117–18. 81 Such as Jains, Buddhists, Sikhs and various Muslim groups which used to be governed by separate laws – for example, the Khojas, the Kachi Memons and the Malsan Muslims. See Susanne Rudolph and Lloyd Rudolph, Living with Difference in India: Legal Pluralism and Legal Universalism in Historical Context, in Larson, supra note 79, at 52. 82 See ‘Response to Internal Diversity’ (Chapter 2) (Ahmed, supra note 1, at 19–21). 83 Where religious groups try to form or ally themselves with religious majorities to garner power (Sudipta Kaviraj, On Thick And Thin Religion: Some Critical Reflections On Secularisation Theory in Religion and the Political Imagination (Ira Katznelson, and Gareth Stedman Jones eds, 2012) 336. 84 Kaviraj, supra note 83, at 14. 85 See Q&A: The Ayodhya dispute (BBC News 2010). 86 See ‘Response to Internal Diversity’ (Chapter 2) (Ahmed, supra note 1, at 19–21).

424  Constitutions and religion unclear that the system could serve the same function for Ravi as his spiritual village community did. Even if following the law, regardless of belief, could replace Ravi’s religious community, one might argue that this at least requires that those following the law do so willingly.87 But, as noted previously, it is very difficult to change or opt out of personal laws. Furthermore, many personal laws are overbroad; they include within their fold people who do not identify with the religion that is associated with the personal law in question.88 It is difficult, then, to know how many of those governed by Ravi’s personal law had no choice in the matter and how many of those would have chosen differently had they a choice. This feature of the personal law system – that it is impossible to be sure that those who follow it do so willingly – creates a problem of transparency. Ravi cannot know whether members of the Hindu personal law community are willing members as easily as he can know this about other villagers.89 Moreover, the personal law system does not necessarily coordinate or facilitate religious worship, even though it does sometimes require the observance of religious forms to obtain certain benefits.90 Nor does the system give those subject to it the autonomy-enhancing support of, or benefits of socialization in, a religious community. For this, a much thicker religious community than anything the personal law system could build would be required. But any religious community (if it can be called that) built or supported by the personal law system would be too thin to meet these conditions. Similarly, the argument that the personal law system promotes the autonomy of religious groups is unfounded. Although some commentators think that the personal law system is a form of group religious autonomy,91 it is unlikely that the personal law system promotes religious group autonomy. The personal law system is not the same as a millet system.92 Unlike the latter system, under the personal law system, the religious group has no representatives or leaders. The personal laws are applied by state courts and, generally speaking, administered by state officials. Under the personal law system, the state, rather than the religious group, decides on who qualifies as a member. If religious group autonomy means anything, surely it means that the group should decide the norms by which it is governed for itself? But the personal law system ossifies one interpretation of each religion into law, diluting pluralism. The state, and not the group, answers the question of what norms the group should have. Further, the system does not recognize a leader elected by the group in any formalized process. The personal law system does not allow groups to decide on the boundaries of their own membership, which is a necessary feature of

87 It might seem strange that someone would willingly follow a law based on a religion to which he or she does not subscribe; but he or she might have reasons to do so. For example, this might seem like the equivalent of an atheist participating in a church service by singing in the choir. 88 See ‘Response to Internal Diversity’ (Chapter 2) (Ahmed, supra note 1, at 19–21). 89 Of course, there are limits to how well we can understand the state of mind of others; the comparison is one of degree. 90 See ‘Freedom from Religion’ (Chapter 6) (Ahmed, supra note 1, at 135–39). 91 See Arend Lijphart, The Puzzle of Indian Democracy: A Consociational Interpretation, 90 American Pol Science Review 258, 260–61 (1996). 92 On the millet system, see Will Kymlicka, Two Models of Pluralism and Tolerance, 14 Analyse & Kritik 33 (1992). This is not to say that a millet system necessarily promotes group autonomy either. For more on the millet system, see the Introduction and Chapter 7 in Ahmed, supra note 1.

Pluralism and personal laws in India  425 group autonomy.93 Since under the personal law system the norms, leaders and membership of religious groups94 are identified by the state rather than the religious groups themselves, it is difficult to argue that the system promotes, or is a form of, religious group autonomy.95 It is equally clear that the personal law system does not provide an opportunity for deliberation. Rather, it ossifies the religious norms of religious groups, leaving very little space for deliberation by the groups themselves. Commentators complain that the state, if it changes the personal laws at all, does so based on the views of only patriarchal and orthodox sectors of the religious group.96 There is no opportunity for debate or deliberation among the wider religious group, associated with group autonomy.97

5. RECOGNITION The Indian Constitution recognizes a right to freedom of religion and describes India as a secular state.98 It also has a long tradition of religious toleration.99 While India might appear to have been largely successful in its attempt to guarantee religious freedom for its citizens in the face of great religious diversity, it also faces problems on this front. Religious hatred, hate speech and even violence are not unknown in India. For instance, ‘the Hindu Right’ are accused of using the ‘personal law issue’ to portray Indian Muslims as ‘obscurantist and fundamentalist’ and ‘barbaric’.100 The Hindu Right itself comprises a number of diverse movements, parties, wings and individuals.101 We therefore need to be cautious in characterizing ‘its’ actions in a unified manner. But it is clear that some elements of the Hindu Right propagate religious hate. Muslims are denounced as inhuman, terrorists, oppressors of Hindus, 93 ‘If outsiders intervene in disputes between internal dissidents and the rest of the group, they are usurping the power to decide the ultimate membership criteria of the group. It interferes with the autonomy of the group to determine for itself its cultural direction. Autonomy must include the power to reject change as much as to embrace it’: Denise Reaume, Justice Between Cultures: Autonomy and the Protection of Cultural Affiliation, 29 University of British Columbia Law Review 117, 121 (1995). 94 Better described as personal law groups. 95 It is perhaps unsurprising to those familiar with personal law systems in other jurisdictions that the Indian personal law system does not enhance religious autonomy. Entrenching religious understandings in law generally appears to lead to the reinforcement of group hierarchy and stagnation of the group’s norms (Ayelet Shachar, Group Identity and Women’s Rights in Family Law: The Perils of Multicultural Accommodation, 6 Journal Of Political Philosophy 285 (1998)); Madhavi Sunder, Cultural Dissent, 54 Stanford Law Review 495, 495 (2001); Y. Tamir, Siding with the Underdogs, in Is Multiculturalism Bad For Women? (S.M. Okin and others eds, 1999). 96 Such as the All-India Muslim Personal Law Board website, www​.aimplboard​.in, last accessed 7 May 2019. Also see Shachar, supra note 95, at 285. 97 The exclusion of women from religious leadership positions has led to the formation of groups such as the Women’s Muslim Personal Law Board; but it is difficult to know how influential these groups are likely to be in shaping the law. 98 See Rajeev Bhargava, The Promise of India’s Secular Democracy (2010); Donald Smith, India as a Secular State (1963). 99 See Ashis Nandy, A Billion Gandhis, Outlook (21 June 2004), www​ .outlookindia​ .com/​ magazine/​story/​a​-billion​-gandhis/​224252, last accessed 7 May 2019; T.N. Madan, Modern Myths, Locked Minds: Secularism And Fundamentalism In India (2nd edn 2010). 100 Notes 77 to 78 of the Introduction to Ahmed, supra note 1. 101 See generally, Thomas Hansen, The Saffron Wave: Democracy and Hindu Nationalism in Modern India (1999).

426  Constitutions and religion uncivilized and disloyal to India.102 Christians are described as ‘a foreign threat’.103 There is thus a problem of hate speech104 against religious minorities in India – propagated through mass media, pamphlets, public rallies and schools. And there have been notable instances of violence against religious minorities, including Christians, Muslims and Sikhs.105 However, this account is left oversimplified and incomplete because it is provided for a very limited purpose: to demonstrate that there is a degree of hatred towards religious groups, especially minorities, in India; and that they are, in fact, exposed to hate speech and violence. The personal law system, its supporters might argue, is today a remedial measure to the hatred that religious groups face in India today (even if this was not its purpose in the past). In support of the system, it might be said that by identifying individuals as members of a religious group and by applying to them, as far as practicable, the religious doctrine of that group, the state recognizes an aspect of their identity – namely their membership of that religious group.106 This kind of recognition by the state, it might be argued, helps to maintain their self-respect. The personal law system can also be seen as showing esteem for religious minorities and their ways of life. The state, through the system, applies to individuals what it takes the norms of their religion to be. This could be thought of as countering the adverse effects on religious groups by validating minority groups. The personal law system might thus serve to validate – in the sense of affirming as good or valuable – these religious ways of life and their adherents. If the state could be said to be validating all religious options represented in the personal law system, then the system could be said to support the self-respect of the members of the minority religious groups. This might make the argument that the personal law system serves the purpose of validating religious groups seem attractive. For if the personal law system did in fact serve this purpose, it would explain the worry that the abolition of the personal law system might imply an ‘anti-Muslim/Christian agenda’. But while the argument in favour of the personal law system based on its recognition and its validation of religious minorities is attractive because of its resonance with much of the rhetoric that surrounds the debate, it faces important problems, as discussed further below.

See Brenda Crossman and Ratna Kapur, Secularism’s Last Sigh?: Hindutva and the (Mis) Law 7–11 (2001). 103 See Crossman and Kapur, supra note 102, at 10. 104 ‘Hate speech’ here roughly refers to ‘speech expressing hatred or intolerance of other social groups’, especially on the basis of religion. See Robert Post, Hate Speech, in Extreme Speech And Democracy 123 (2009). 105 For example, there have been instances of violence against Christians (Somini Sengupta, Hindu Threat to Christians: Convert or Flee, New York Times (12 October 2008), www​ .nytimes​ .com/​ 2008/​10/​13/​world/​asia/​13india​.html, last accessed 7 May 2019; Celia Dugger, 47 Suspected Militants in India Charged in Missionary’s Death, New York Times (25 January 1999), www​.nytimes​.com/​ 1999/​01/​25/​world/​47​-suspected​-militants​-in​-india​-charged​-in​-missionary​-s​-death​.html, last accessed 7 May 2019). There has been violence targeting Muslims (Concerned Citizens Tribunal, Crimes against Humanity: Incidents and Evidence Volume 1 (Gujarat), www​.sabrang​.com/​tribunal/​volI/​index​.html, last accessed 7 May 2019; National Human Rights Commission, Proceedings (31 May 2002), atnhrc​.nic​ .in/​guj​_finalorder​.htm, last accessed 7 May 2019), as well as Sikhs (Stanley Tambiah, Reflections on Communal Violence in South Asia, 49 Journal Of Asian Studies 741, 744–48 (1990)). 106 On how colonial courts forged Parsi identity, see Mitra Sharafi, Bella’s Case: Parsi Identity and the Law in Colonial Rangoon, Bombay and London, 1887–1925, PhD dissertation (2006). 102

rule of

Pluralism and personal laws in India  427 The demand for recognition is primarily a demand for an end to non-recognition and misrecognition.107 Non-recognition and misrecognition are damaging, disrespectful and among the most grating insults to which we could subject a person. Non-recognition comes in many forms. Treating a person as if he or she does not exist, were invisible or makes no mark on the world at all can have a devastating effect. Misrecognition or non-recognition can be particularly wounding because it may suggest that the person in question is so insignificant that it is not worth the trouble of finding out or remembering even the most basic facts about him or her. It may seem that the personal law system provides valuable recognition; it may seem that it recognizes religious aspects of individual’s identities. But the system treats individuals with the kind of misrecognition and non-recognition described earlier. Many individuals are not recognized, but rather misrecognized and misrepresented.108 The personal law system shows little regard for how people identify themselves and what their understanding of their religion really is. It often identifies people in terms different from those in which they identify themselves.109 By applying a single, state-endorsed religious interpretation to all those who fall within a personal law group, it ignores the fact that the religious interpretations of many people within this personal law group may well deviate from those of the state. For instance, a Hindu who does not believe that ‘coparcenary’ is part of the Hindu religion is nevertheless governed by Hindu personal law, which treats this belief as if it is an essential part of the Hindu religion. By bundling together a religious label – ‘Hindu’, ‘Muslim’ or similar – with a certain interpretation of that religion, the personal law system misrecognizes or fails to appropriately recognize those who identify with that religion, but do not share the personal law system’s interpretation of religious doctrine.110 Despite the fact that a person’s understanding of his or her religion may be central to their identity and self-perception, it is not important enough (it may seem) for the state to take the trouble to do more than paint everyone in one personal law group with the same brush.  Others are misrecognized even more dramatically. Sikhs, Jains and Buddhists, who do not generally think of themselves as Hindu, are identified as ‘Hindu’ by the personal law system. In this case, there is evidence that this is perceived as insulting and disrespectful.111 The displeasure of the Sikh community at not having its own marriage law,112 as well as the Indian law minister’s comments that having a separate Sikh family law ‘would invite similar demands from other religious denominations’ (presumably Jains and Buddhists), indicates that its non-recognition by the personal law system has worrying consequences. Thus, Sikhs, 107 See Charles Taylor, Multiculturalism and the Politics of Recognition, in Multiculturalism: Examining the Politics of Recognition (C. Taylor, A. Gutmann and J. Habermas eds, 1994). 108 See Redding, supra note 68, at 454–55. 109 Also see Kwame Anthony Appiah, The Ethics of Identity 62–65 (2005) for an account of the ‘Robbers Cave Experiment’, which suggests how important the terms in which people are identified can to be to their identity formation. 110 For example, consider the differences in opinion in the content of the model ‘nikahnamas’ (or marriage contracts) endorsed by the (more powerful, mainstream) All India Muslim Personal Law Board (AIMPLB) and the All India Women’s Muslim Personal Law Board (‘Women Personal Law Board Unveils New “Nikahnama” 2008). 111 Sangari, supra note 23, at 29. There have also been demands from the Jains for recognition as a separate religion and as a minority. 112 See Centre Says No to Separate Sikh Marriage Act, SAD to Meet PM, supra note 31. However, following a 2012 amendment, Sikhs can now register marriages under the Anand Marriage Act 1909 (Sikhs can Register Marriages Under Anand Marriage Act Now, Indian Express (2012)).

428  Constitutions and religion Jains and Buddhists and heterodox113 members of all the religious groups in the system are misrecognized by being subsumed under existing personal law categories. But at least Sikhs, Jains and Buddhists are mentioned by name in Hindu personal law. Others – Baha’is, atheists, agnostics and members of smaller and newer religious movements – are even worse off, for they are neither mentioned nor recognized by the personal law system. While some of those who are not even mentioned by the system might be subsumed under an existing personal law category,114 the law applicable to others might be decided based on the residuary principle of ‘justice, equity and good conscience’.115 Both those subsumed by other personal law categories and outsiders are non-recognized or misrecognized by the system. While there might be religious groups who benefit from the system through its recognition of their identities, there are many others who are harmed by its misrecognition and non-recognition.

6.

RELIGIOUS FREEDOM

Religious autonomy implies the freedom to be agnostic, undecided, indifferent, silent or uncommunicative on religious matters, and to refrain from any form of practice.116 But the assertion that religious autonomy presupposes these freedoms may not mean much to those who think that religious autonomy should not necessarily be bilateral (ie, include freedom from religion). It is important to consider, therefore, the implications of the absence of this freedom for religious autonomy. Denial of freedom from religion is potentially just as harmful to religious autonomy as a denial of freedom to engage in a religion. Consider a state that bans the wearing of religious dress in all public places, at all times. Most people would consider this a denial of religious freedom. But what if this state, apart from the ban, also required all persons in the state territory to wear a particular religious dress (eg, a nun’s habit or a burka) in all public places at all times? In the first case, the state is undoubtedly harming religious autonomy by denying people potentially significant (for expressive and other reasons) options of dress. But what the state does in the second case is just as bad for autonomy – by imposing this restriction, it eliminates all options but one in the matter of dress. Thus, if someone does not have freedom from religion, they might be religious, but they cannot possess religious autonomy. Given the importance of freedom from religion for religious autonomy, certain features of the personal law system appear problematic. There are serious impediments to exit from the system, which means that when some people subject to

113 By ‘heterodox’ here is meant anyone whose religious beliefs do not coincide with those in the personal laws. 114 Atheistic or agnostic Hindus will be treated as Hindus. 115 See Waghela Rajsanji v Shekh Masluddin ILR 11 Bom 551, 561. The category ‘Hindu’ is not residual. Section 2(c) of the Hindu Marriage Act 1955 provides that Hindu law shall apply ‘to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed’. The italicized clause should apply to Baha’is or other groups as Hindu law (before the passing of the Hindu Code acts) would not have been applied to them. 116 For some helpful discussions in the context of the US constitutional law, see Lee v Weisman 505 US 577 (1992); Torcaso v Watkins 367 US 488, 489 (1960).

Pluralism and personal laws in India  429 the personal law do the things that most people do during their lifetimes, they often have to do them (if they are to do them at all) in accordance with religious norms.117 Often people cannot choose to be governed by generally applicable family laws instead of personal laws. Some supporters of the personal law system argue that the limited movement that the system allows between personal law and the general family law alleviates other concerns that one might have about the system’s effect on autonomy.118 However, as already pointed out, those subject to the personal law system often do not, as a matter of law, have the option to switch to general family law or another personal law. In addition, even when general family laws are presented (as a matter of law) as an alternative to the personal laws, this is not sufficient to guarantee that individuals, in fact, have a choice between the two. The fact that there is a legal right of exit from a personal law group does not guarantee that remaining in the group is voluntary, especially because of the high costs associated with such an exit. People sometimes have to make decisions on matters around which there tends to be fairly intense pressure to do and think as most other people are doing and thinking, especially within a community.119 Religion is generally one of those matters, at least in India. People are therefore unlikely to be able to make autonomous decisions about religious matters if they are subject to public scrutiny and pressure to conform. Particularly on the choice between personal law and general family law, in many communities in India, if an individual chooses general family law, this will be interpreted as a denunciation or rejection of the community. Other members of these communities are likely to react negatively to such a choice. Specifically, it is likely that they will think less of a member who chooses the secular law, try to convince him or her not to make this choice and – at least in some cases – threaten him or her with some degree of ostracism. It is difficult to provide further evidence of this claim, because the personal law system as it functions at present often does not allow a choice between generally applicable family law and personal law; and even when it does, people are often unaware of the existence of an option apart from the personal law. However, the very low levels of usage of the Special Marriage Act 1954 fit with, and may be partly explained by, the pressure to conform to personal law. Moreover, anecdotal evidence – including the much-discussed reaction of one community to Shah Bano, a case involving a woman who claimed maintenance from her husband under general family law when she was also governed by Muslim personal law120 – supports this claim.

117 As an example, consider the fact that the testamentary power of Muslims (to whom the general law, the Indian Succession Act 1925, is unavailable unless they are married under the Special Marriage Act 1954) is limited by quantum and has restrictions on bequests to heirs. Consider also the limitations on marriages that can be contracted under the Special Marriage Act 1954, Section 4(a). Similarly, although it is (sometimes) possible for a Hindu born into a family that follows the coparcenary system to ask for a partition, the norms of Hindu personal law may govern such a person from birth until the partition request. Such a partition is itself effected according to Hindu personal law. Further, a marriage under a personal law can only be governed (and, therefore, ended) by its norms, which can be problematic: first, because it is not unusual for people in India to marry so young that they cannot be assumed to have freely chosen the norms of personal law; and second, because of the problems that being ‘bound’ in this way can pose for free choice. Additionally, the social pressure to conform to personal law means that people are often forced to act in accordance with personal law. 118 Redding, supra note 68, at 436. 119 Of course, this claim is not likely to be true of all communities. 120 See Mohammad Ahmed Khan v Shah Bano Begum AIR 1985 SC 945.

430  Constitutions and religion The personal law system does not affect religious profession; those subject to the personal laws can profess any religion or none. However, although this feature is often overlooked, the system interferes with religious practice. It obliges people to organize their lives according to certain religious norms; this means that those who endorse other religious norms (ie, the norms of other religions as well as different interpretations of the religious norms applied to them) are prevented from organizing their lives in accordance with the latter norms. To enjoy religious autonomy, a person must have the option to express, through the variety of forms that human expression can take, all attitudes, values and opinions on religious matters and the freedom to engage in rituals, rites, ceremonies, forms of worship or other religious acts.121 Consider the case of ‘H’, who disagrees with the personal law’s understanding of Hinduism. Such a person is likely to have aspects of his life governed by the norms of Hindu personal law despite his views. To begin with, rights and liabilities associated with the coparcenary of a Hindu joint family accrue to him as a foetus.122 If he were to try to exit the system, he would probably face heavy exit costs. When he marries, he chooses to marry under the Special Marriage Act 1954, as he knows that usually when parties marry or register their marriage under this Act, they are governed by the Indian Succession Act 1925 (which he considers less objectionable than Hindu personal law). However, he finds that, since he is marrying another Hindu, he continues to be governed by Hindu succession law. This means he has no choice but to be governed by Hindu personal law in matters of succession.123 Thus, the law insists that H organize his life according to certain ostensibly religious rules, which he disbelieves in and even finds distasteful. This prevents him from living according to the religious norms that he would like to follow. By diminishing his ability to practise or realize in his chosen religious option – especially given the features of religious options noted earlier – the personal law system diminishes his religious autonomy. An objection might be raised to the argument so far. The objection is that most personal laws are voluntary power-conferring rules. Power-conferring rules dictate how a person marries, makes a will, adopts and so on, and enable him or her to create new duties or modify old ones.124 If the personal laws are all voluntary power-conferring rules – that is, if they only enable individuals to create and change their legal duties – then, arguably, they should not be viewed as affecting autonomy or reducing options. After all, it is difficult to view them as constraints. It is important to emphasize first that not all personal laws are voluntary power-conferring rules. Many personal laws – notably those relating to inheritance, the division of property125 and maintenance payments – are not power conferring, but mandatory and duty imposing. The objection considered in this section does not apply at all to these rules. It is, therefore, at best a partial objection to the argument outlined earlier. Moreover, even voluntary power-conferring rules in general, and voluntary power-conferring personal laws in particular, can raise problems for religious autonomy by affecting options.

121 For the relationship of freedom to autonomy more generally, see The Liberty Reader (David Miller ed, 2006); Joseph Raz, The Morality of Freedom 401–30 (1986); Jeremy Waldron, Autonomy and Perfectionism in Raz’s The Morality of Freedom, 62 Southern California Review 1097 (1989). 122 See Hindu Succession Act 1956, Section 20. 123 See Agnes, supra note 43, at 98–99. 124 See H.L.A. Hart, The Concept of Law 81 (1994). 125 Especially in a ‘Hindu undivided family’.

Pluralism and personal laws in India  431 Finally, having the option to choose a personal law, it might be argued, gives the person who wants to make a commitment to his or her faith the kind of expressive opportunity that marriage vows can. Such an option may be particularly important for religious autonomy because making a commitment, especially an irrevocable one, to a religion can have great symbolic value for some. In their daily lives, religious people may not have much of an opportunity to promote or aid their religion. They may have to work and raise their families, leaving them little time for proselytizing or fund raising for their church (assuming that these are activities that promote their religion). In the face of such inability to create positive consequences for their religion, deeply religious people trapped by commitments to family or other responsibilities may turn to symbol. If they cannot do anything for their religion, at least they can express that they are for their religion. The scope for martyrdom or similar grand symbolic acts is limited in tolerant societies, where the religious may not be persecuted for their beliefs. But making an irrevocable commitment to live by the tenets of one’s religion, insofar as they are reflected in the personal laws, could be a way for people to express this sentiment. This expression is an expression of people’s autonomy in a significant sphere of their lives. The passion and conflict that surround the ‘personal law question’ in India are symptomatic of this expressive aspect. While the personal laws as well as the act of choosing to be governed by the personal law can have symbolic value in the lives of some religious people,126 other symbolism that could be associated with the personal law could harm the religious autonomy of those whose understanding of a religion deviates from the understanding enforced by the personal laws. This is because the personal laws are based on an understanding of these religions that glosses over even strong differences in interpretation of religious doctrine. As elaborated earlier, codified Hindu law applies not only to those who identify as Hindu, but also to Buddhists, Jains and Sikhs, and some others who may not consider themselves Hindu.127 Similarly, Muslim personal law applies regardless of ‘peculiarities in belief, orthodoxy or heterodoxy’.128All those who are associated with these religions have this single state-endorsed interpretation applied to them. By giving effect to only one understanding of religious doctrine for each personal law group, the state could be seen as making a judgement on what positions are most authentic within those religious traditions. It might thereby be seen as implying that those individuals who subscribe to a different understanding of that religion are doctrinally misguided or insincere. The expression of such a view, coming as it does with the authoritative voice of the state, is likely to harm the self-respect and, therefore, the religious autonomy of all whose understanding of a religion deviates from that of the personal laws.

7. CONCLUSION The Indian personal law system does not respond appropriately to the internal diversity of those subject to it. It offers people limited ability to exit or move between personal laws. The

126 Certainly it has great symbolic value for organizations such as the AIMPLB. The stated aims of this organization are to ‘defend’ and ‘protect’ Muslim personal law, and to subvert ‘the conspiracy’ against it (AIMPLB website, introduction). 127 See Hindu Marriage Act 1955, Section 2; Hindu Succession Act 1956; Hindu Adoptions and Maintenance Act 1956. 128 See Diwan, supra note 32, at 1; Fyzee and Mahmood, supra note 32, at 46.

432  Constitutions and religion personal law system does not enhance community life or group autonomy. It misrecognizes and fails to recognize religious identities, and it diminishes religious freedom. Other work on personal laws129 suggests that at least some of these problems are associated with personal law systems more generally. These findings may therefore prove useful for research and practical problems beyond the Indian context, for the many variations of the millet and personal law systems found in, for example, Pakistan, Bangladesh, Sri Lanka, Singapore, Malaysia, Israel and South Africa; for the private international law of a number of jurisdictions; for contemporary transnational debates on religious arbitration and tribunals; and for debates on multiculturalism, in which the Indian personal law system has featured heavily.

Sezgin, supra note 2, at 3.

129

Index

Abī al-Ḍiyāf, Aḥmad Ibn 64 Abū al-Majd, Aḥmad Kamāl 66 A, B and C v Ireland 340 Abbasid dynasty 175 Abd al-Rāziq, Alī 65 Abduh, Muḥammad 64 Abington School District v. Schempp 125 abortion and religion and conscientious objection 371 in Latin America 155 in Russia 246–9 in the EU legal order 310 Acevedo, Deepa Das 234 Acharya Jagadishwarananda v. Police Commissioner, Calcutta 230 Adelaide Company v. Commonwealth 227 ADF see Alliance Defense Fund Adida, Claire 384 African Charter on Democracy, Elections and Governance 160, 164 African Charter on Human and Peoples’ Rights 160, 163, 378 African constitutions and religion civilizing mission 168 future prospects of 168–70 general religious rights provisions general impact of 160–161 religious freedom and traditional African religions 163–4 religious freedom in context of state/ preferred religion 162–3 religious rights in secular state 161–2 Government Restrictions Index (2015) 171 historical background and influences 158–60 limitations and restrictions 165–8 overview of 157–8 post-secular era 157 protection of religious freedom equality clauses 164–5 non-discrimination 164–5 Regional Economic Communities 164 religious missions 168 renaissance 164 African Court of Human and Peoples’ Rights 334 agnostic secularist model 31–3 Agudat party 281 Ahmadiyya Muslim Community 343 Ahmed, Farrah 19 Ahmed, Leyla 347, 350

AKP see Turkish Justice and Development Party al-Ṭahṭāwī, Rifāʿa 64 al-ʿAwwa, Muḥammad Salīm 67–8 al-Bannā, Hasan 65 Alberta Human Rights Commission v. Central Dairy Pool 119 Alberta v. Hutterian Brethren of Wilson Colony 120 al-Bishrī, Ṭāriq 68 al-Ghannūshī, Rāshid 67 al-Kawākibī, Abd al-Raḥmān 64 Allawi, Ali 397 Alliance Defending Freedom 15, 340 Alliance Defense Fund (ADF) 339 All India Muslim Personal Law Board 48 al-Muṭīʿī, Muḥammad Bakhīt 65 al-Qaraḍāwī, Yūsuf 67 al-Sanhūrī, Abd al-Razzāq 60, 65 al-Turābī, Hasan 67 Ambedkar, B.R. 223 American Bill of Rights 112 American Center for Law and Justice 339, 341 American Center for Law & Justice 15 American Civil Liberties Union 337–8 American constitutional secularism 25 American Convention on Human Rights 378 American Humanist Association (2014) 123 American Islamic Congress 343 American Islamic Forum for Democracy 343 American Legion v. American Humanist Association 122 American Revolution 25 Americans United for Separation of Church and State 338 American United for Life 340 Anglican Church of England 240 An-Na‘im, Abdullahi Ahmed 17 Anthony, Frank 225 anticlericalism 145–6 anti-discrimination law 316–18 anti-essentialism 327 anti-revisionist approach 329–30 Arat, Yesim 366 Archbishop of Canterbury 8 Aristotle 187 Aryanized Sinhalese identity 202 Aryan theory of linguistic and racial origins 202 Arya Samaj 233 Asad, Muhammad 67 Asad, Talal 81, 350

433

434  Constitutions and religion Asokan Empire 195–6 Ataturk, Kemal 364 Aurelius, Marcus 1 Auroville (Emergency Provisions Act) Act (1980) 233 Austrian Protestant Church 241 authorization of religion 213, 214, 216, 217 Ayan, Tutku 365 Badoni v. Higginson 117 Baird, Robert 232 Bakr, Abu 175 Bandaranaike, Sirima 203 Barak, Aharon 268 Barlas, Asma 348 Bayatyan v Armenia 377 Becket Fund 339, 340 Belcacemi et Oussar v Belgium 362 belief-practice dichotomy 227 Belize Criminal Code 342 The Benedict Option (Dreher) 242, 250 Benin Constitution 1990 Article 10 of 164 Article 14 of 169 Bennoune, Karima 363 Berger, Julia 335, 336 Berger, Peter 3 Bharatiya Janata Party (BJP) 280 Bhargava, Rajeev 223, 224 Bhargava, Thakur Das 225 Biagi, Francesco 18 BJP see Bharatiya Janata Party Blackburn, Simon 327 Blasphemy (Abolition of Offences and Related Matters) Act 2019 400 blasphemy law 400–401 conceptual legitimacy 401 constitutional/statutory prohibition 401 crime of 400, 413 definition of 404–5 hate speech 406 principle of 400 prohibition of 407 purpose of 404–7 religious public morality 413 Blondel, Charles 261 Bodu Bala Sena (Buddhist Power Force) 205 Bolívar, Simón 140, 143 Bombay Harijan Temple Entry Act (1948) 231 A Book of Genesis (Davids) 194 Botswana Constitution 1996, Section 11(5)(b) of 167 bottom-up process, constitution-making processes 259–60 Brazilian Constitution (1988) 262

Brinkhof v the Netherlands 375 British House of Lords 384 Bruker v Marcovitz 358 Buddhadhamma 190 Buddhahood 188 Buddha Sāsana Commission report 1959 203 Buddhism 4, 26, 232 Buddhist constitutionalism as ancient constitution 185, 186, 188, 191 antagonistic symbiosis 191 contemporary 193 contemporary horizon of 185 contemporary scholarship 192 cosmological sovereignty Asokan Empire 195–6 Contra Western rationalist interpretive approach 193 Mauryan Empire 195–6 Mount Meru functions 194 Theravāda Asia kingship 193 deleterious impact of 185 epistemological violence ancient constitution 199 Buddhist modernism 205 Colebrooke-Cameron Reforms of 1832 200, 201 European colonial rule 200 fluid model of shifting jurisdictional authority 200 Kandyan monarch 200 LTTE 204–5 at policy level 206 pre-colonial history of Theravāda Buddhism 199 re-sacralizatio 202 Kantian normative ethics 187 kingship 187, 190–192 mandala state ancient constitution 199 asymmetrical movement 198 contemporary constitutional theory 196 cosmic sovereignty 198 definition of Buddhist polity 197 galactic centre-oriented space 197 galactic sovereign par excellence 198 galaxy-type structure 196 Mauryan Empire 196 religious difference management 199 modernist turn 186, 192 monks and interest groups 184, 193 performative logic 187 Pāli Canon 189–90 reductive foci of 185–6 reimagining of 184–93 tense co-dependence 191

Index  435 Vajji “republics” 188 Vedic legal world 186 Buddhist Temporalities Ordinance 200 Buddhist Theosophical Society 202 Burger, Warren 162 Cádiz Constitution (1812) 141 Cady, Linell E. 349 Cairo Declaration on Human Rights in Islam (1990) 397 The Caliphate (al-Khilāfa) (Riḍā) 60 Calo, Zachary 330 camp party 281–2 Canada Christian Evangelical University 114 constitutional conversation 112 end-of-life decisions 131–7 freedom of religion 112 marriages 126–31 religion, definition of 113 religious diversity 111 religious prayers in political institutions 121–5 in public institutions 120–121 in public schools 125–6 Supreme Court of Canada 113–14 transversal frameworks Indigenous spiritualities 114–17 reasonable accommodation 117–20 Canadian Charter of Rights and Freedoms 113, 324 Canadian Council of Muslim Women 344 Canadian Islamic Congress (CIC) 344 Carter v. Canada (Attorney General) 133 Casanova, José 5, 208, 238, 350 Caste Disabilities Removal Act (1850) 420 Catholic Church colonial period 141 as historical and majority religion 140 independence of 143 as sovereign entity 140 Spanish 142 Catholicism 23, 31 confessional constitutions 142 conversion of indigenous peoples 141 as culturally homogenous status quo 294 Italian public schools 106 in Italian society 107 Catholic transformations 147–50 Central Untouchability (Offences) Act (1955) 231 Chakri dynasty (King Mongkut) 200, 201 Charter of Fundamental Rights of the European Union 376 chimera of neutrality 239 Christian Democrats 266 Christianity 38

absolutist culture of 3 colonialism 159 culturalization of 3, 7, 11 Hungarian Constitution 106 intellectual Christian origins 23–7 liberal interpretations of 34–5 majority religion in Europe 105–7 Christian nationalism 11 Christian pro-bono legal organizations 15, 339 Church of Latter Day Saints 244 CIC see Canadian Islamic Congress Cicero 1 Citizenship Amendment Act 2019 50 citizenship, structurally gendered 2, 349 civic integration 385 civic republicanism 29 civil disobedience 372 civil enlightenment strategy 80 civilization Islamic 10 Western 11 civil society 257–8 CJEU see Court of Justice of the European Union Coalition for Defence of Human Rights in the Muslim World 343 Cohen, Asher 281 Cohen, Elena 19 Cold War 5, 147 Colebrooke-Cameron Reforms (1832) 200 collective recognition path 387, 391–4 Colorado Civil Rights Commission 131 Commissioner, Hindu Religious Endowments, Madras v Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt 226 Commission v Poland 310, 311 communal religious movements 5 comparative constitutionalism 16, 139 confessional constitutions 140–143 confessional secularism 34 confessional secular model 33–4 Confucianism 4 Connolly, William 89 conscience clause 379 conscience wars 9 conscientious objection boundaries 372 civil disobedience 372 definitions of 370 First World War 371 global jigsaw 378–82 international human rights law 373–6 LGBT rights 372 military service 380, 382 modern basis of 371 overview of 370

436  Constitutions and religion reasonable accommodation 381 regional human rights law 376–8 Second World War 371 third-party harm 372–3 conservative legal advocacy groups 338 conservative parties 276–7 constitutionalism contemporary liberal constitutionalism 35 contemporary Western constitutional democracy 22 definition of 178 destructive view of 178 general principles of 178–9 modern western 27–9 in Muslim-majority countries 180 political organization of state 178 purpose of 178 separation of powers 179 constitutional law 385 constitutional revolution 268 constitutional secularism 2, 36 American 25 constitutional theocracy 21 Constitutional Treaty of the European Union 260 constitution-making processes bottom-up process 259–60 civil society 257–8 constitutional history and tradition 260–261 contentious issues institutions, interpreting religious matters 266–8 religion and international human rights treaties 268–9 religion in constitutional preambles 269–70 religious education 266 religious freedom 264–6 religious vs. secular character of state and status of religious law 263–4 external actors 258–9 external influences 262 participatory 257 political parties 254–5 post-Second World War 253 religious institutions 255–6 religious minorities 256–7 supranational processes 260 top-down process 259–60 Constitution of Cameroon (1996) 166 Constitution of Pakistan, 1949 60 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) 330 Convention on the Elimination of all Forms of Discrimination Against Women 330

Convention on the Elimination of all Forms of Racial Discrimination 330 Convention on the Rights of the Child 330 Convention on the Rights of Persons with Disabilities 330 Corrêa, Ana Maria 19 Corway v Independent Newspapers 408 cosmological sovereignty Asokan Empire 195–6 Contra Western rationalist interpretive approach 193 Mauryan Empire 195–6 Mount Meru functions 194 Theravāda Asia kingship 193 Council of Europe 376 Council of ex-Muslims of Britain 343 Council of Islamic Ideology 62 Court of Justice of the European Union (CJEU) 291, 307, 334 Cox, Neville 19 Criminal Code, Section 293 of 128 Cristián Daniel Sahli Vera et al v Chile 378 Cromer, Lord 350 Cuban Criminal Code 152 cultural Christianity 7 Dabby, Dia 17 Danchin, Peter 17 Davids, Rhys 194 Davis v. Beason 227 Declaration of the Elimination of Intolerance and Discrimination Based on Religion or Belief 160 democratic secularism 319 denominational and religious neutrality 92 deprivatization of religion 22 De Roover, Jakob 236 de Silva-Wijeyeratne, Roshan 17 Directive Principles of State Policy 271 discrimination, taste-based 384 discriminatory equilibrium 384 disestablishment model religion-state relations 238–42 Russian Orthodox Church 248–50 Dissolution of Muslim Marriages Act (1939) 415 diversity, Indian personal law systems 417–18 Dreher, Rod 242, 250 D’Souza, Jerome 225 Due Process Clause 135, 136 duty of civility 6, 8 ECHR see European Convention of Human Rights ECLJ see European Centre for Law and Justice ECtHR see European Court of Human Rights

Index  437 EEOC v. Abercrombie and Fitch Stores Inc. 118 Egypt Islamic constitutionalism 63 Muslim Brotherhood 60, 255 Elauf, Samantha 118 Ely, John Hart 385 Employment Division v. Smith 85, 116, 235 Engel v. Vital 125 English Men’s League for Opposing Women’s Suffrage 350 Enlightenment constitutional secularism 2 conventional narrative of 2 and gender 349 ideals of 2 legacy of 1–4 modernization of 1–4 nationalism 10 secularization 1–4 e-participation 257 epistemological violence, Buddhist constitutionalism ancient constitution 199 Buddhist modernism 205 Colebrooke-Cameron Reforms of 1832 200, 201 European colonial rule 200 fluid model of shifting jurisdictional authority 200 Kandyan monarch 200 LTTE 204–5 at policy level 206 pre-colonial history of Theravāda Buddhism 199 re-sacralization 202 Equal Protection Clause 136 equal respect theory 224 Erdogan, Recep Tayyp 10, 364 E.R.J. Swami v. State of T.N. 230 essentialism 327 Establishment Clause 121–2 ethno-Buddhist nationalism 186 ethno-religious communities 281–2 ethno-religious identity 279 EU Charter of Fundamental Rights 325 Article 10 of 312, 314 Europe conscience clause 379 Islamic integration see Islamic integration in Europe post-Second World War 277 European Centre for Law and Justice (ECLJ) 339 European Commission for Democracy through Law 258 European Commission of Human Rights 377

European Committee of Social Rights 381 European Constitutional Treaty 260, 269 European Convention of Human Rights (ECHR) 18, 307 Article 9 of 35, 286, 376 developments and dilemmas 287–91 duty of neutrality and impartiality 301–5 consequences of sui generis requirement 304–5 pluralism management 302–4 individual religious liberty protection 295–301 generosity mixed with unpredictability 298–300 impressionistic non-discrimination 300–301 from liberty to identity protection 295–8 post-Second World War paradigm 287 religious freedom 265 European Court of Human Rights (ECtHR) 14, 15, 52, 286, 376, 401 Grand Chamber of 84 human rights violations 332 majority and minority religious symbols 75 religious freedom 265 Second Chamber of 84 European model of religious freedom emergence of 97–9 characteristics 99 human right 98–9 individual dimension 98 institutional dimension 98 existence of 96 future aspects of 103 geopolitical approach 96 laïcité model 104–5 civil religion 104 “derive sectaires” 104 national identity 105 neutrality of public institutions 105 majority religion model 105–7 multi-religious model 107–9 overview of 96–7 European public morality 404 European Social Charter 381 European Union 15, 18 European Union, constitutional order anti-discrimination law 316–18 freedom of religion 312–15 overview of 307 religion and state relationship 307–12 degree of separation 307 Lisbon Treaty 308, 309 Preamble to the Constitutional Treaty 308 regional socio-cultural characteristics 310

438  Constitutions and religion religious inheritance 308–9 Evangelical Lutheran Church 77 Evans, Carolyn 288 faith-based organizations (FBOs) 335–6, 343 Family Research Council 339, 340 Family Watch International 15 FBOs see faith-based organizations federal Criminal Code 132 Federal Shariat Court (FSC) 62 Feldheim, Miriam 367 Fernandez Martinez v Spain 313–14 Ferrari, Silvio 17 Fessenden, Tracy 349 F.G. v. Sweden 290 Finnis, John 329 First Vatican Council 329 Flaubert, Gustave 1 Fombad, Charles Manga 17 forum externum 295 and public order 91–3 forum internum 78, 295 as “rational religion” 89–91 Framework Convention for the Protection of National Minorities 105 France 51–3 citizenship implications burqa in public 57 cultural specificity 56 living together concept 57 Framework Convention for the Protection of National Minorities 105 Italian model of secular state vs. 107 laïcité see laïcité legal narrative 53–6 burqa ban 55–6 legal enactments 55–6 SAS v France 56 Stasi Commission Report 54 Francis, Pope 155 freedom from religion 38 freedom of religion 38 European Convention of Human Rights 18 European Union 312–15 Free Exercise Clause 3, 25 Freitag v. Penetanguishene (Town) 124 French Catholic Church 31 French Constitution, Article 1 of 3 French Republic 51–3 French Revolution 24–5, 30, 59, 146 French Stasi Commission 360 Fry, Stephen 407, 409, 411 FSC see Federal Shariat Court fundamental compromise of Confederation 113 fundamentalist parties 274–6

Gabonese Constitution (1991) 167 Gajendragadkar, P.B. 229, 230, 232 Galanter, Marc 232 Galloway v. Town of Greece 122 Gaudreault-DesBiens, Jean-François 17 Gaynutdin, Ravil 237 Geertz, Clifford 197 Gellner, Ernst 10 gender equality/minority religious freedom in courts 357–69 AKP actions 364–5 Danial Latifi case 358 Europe 368 French Stasi Commission 360 hijab/jibab/niqab 359 Israel 367 Jewish divorce cases 358–9 lesbian, gay, bisexual and trans people 368–9 nationalistic and feminist claims 364 neutrality 362 Nigeria 366 North America 368 post-colonial contexts 366 Shah Bano case 357–8 Western Wall 367 women-protective rationales 360–361 ideology 155 minority religions and women’s rights coexisting, comprising and converging 354–7 multiculturalism 352–4 overview of 351–2 religion, secularism and 347–51 general religious rights provisions, Africa impact of 160–161 religious freedom and traditional African religions 163–4 religious freedom in context of state/ preferred religion 162–3 religious rights in secular state 161–2 George, Robert 329 German employment law 314 German Federal Administrative Court 395 German institutionalization of religion 33 German version of the confessional secularist model 33 Germany Islamophobia 387 religious organizations 386–7 Glendon, Mary Ann 8 globalization of religion 12–15 consequences 13 Glucksberg v. Washington 135

Index  439 Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal 235 Greek Constitution, Article 3 of 35 Greek Orthodox Church 35, 216 Grisez, Germain 329 Gross, Leo 13 group autonomy 421–5 Hafez, Kai 383 Hassan II, King 261 hate speech 425–6 Haynes, Jeffrey 321, 335 Hindu Adoption and Maintenance Act (1956) 417 Hinduism 12, 18, 26 Article 25(2)(b) of the Constitution 232 civilizational or cultural view of 232 importance of Yagnapurushdasji 232–3 as inclusivist religion 233 right to exit 231–3 Satsangi case 231 Hindu Marriage Act (1955) 417 Hindu personal law 418 Hindu Right 42–4, 46, 425 Hindu scriptures 44–5 Hindutva ideology 45 Holy See 330–331 Hosanna Tabor v Equal Employment Opportunity Commission 337 Human Dignity Trust 342 Human Life International 15 human right, religious freedom 98–9 human rights and religion human rights comparative law scholarship 322 descriptive approach 322 judicial reasoning 323 normative approach 322 overlapping consensus 322 ideological reasons geopolitical ideological benefits 331–3 human rights doctrine changes 327–8 migration 333 organized religions debates 328–31 overlapping consensus 325–6 perceptions of religious diversity 333 institutional developments availability of courts 334 domestic religious litigation prevalence 336–8 intra-religious (legal) factionalism 343–4 NGOs 334–5 organizational forms and political organization 335–6 transnational NGO litigation 339–42 overview of 321

religion dimensions of 323 phenomenon/concept of 323 tensions anti-discrimination 324 disputes over ideas 324 establishment issues 323 freedom from discrimination 324 freedom of religion 324 free exercise 323, 324 non-establishment of religion 324 tripartite set of provisions 324–5 US statutory level 324 Hungary religious freedom 265 religious nationalism 11 Hunter, Ian 93 Husayn, Muḥammad al-Khiḍr 65 Huwaydī, Faḥmī 67 Huxley, Andrew 188 IACHR see Inter-American Commission on Human Rights ICCPR see International Covenant on Civil and Political Rights The Idea of Public Reason Revisited (Rawls) 6 ideological secularism advantages and disadvantages 38 description of 38 institutional secularism vs. 27, 39 principal questions 38 Illegal Migrants (Determination by Tribunal) Act 1983 (IMDT Act) 49 The Impossibility of Religious Freedom (Sullivan) 235 impressionistic non-discrimination 300–301 Imāra, Muḥammad 67 Indian Constitution Article 25 of 222 Article 26 of 222 Article 44 of 225 Article 48 of 225 constituent assembly debates 222–6 42nd Amendment 222 cow slaughter 225–6 Directive Principles of State Policy 225 equal respect theory 224 Fundamental Rights of the Indian Constitution 225 Nehruvian formulation of secularism 224 principled distance 224 uniform civil code 225–6 essential practices doctrine 226–31 Acharya Jagadishwarananda v. Police Commissioner, Calcutta 230

440  Constitutions and religion Adelaide Company v. Commonwealth 227 Ananda Margis 230 belief-practice dichotomy 227 Davis v. Beason 227 E.R.J. Swami v. State of T.N. 230 Jehovah’s Witness v. Commonwealth 229 Orissa Mining Corporation Ltd. v. Ministry of Environment and Forests 231 Shirur Mutt case 226, 228–30 Shri Govindlalji v. State of Rajasthan 228 freedom of religion clauses 222 recognition 425–8 right to exit Hinduism 231–3 Supreme Court five-judge Constitution Bench 234 Sabarimala case 234 Satsangi case 231 Shani Shignapur temple case 235 Indian personal law systems anti-Muslim/Christian agenda 426 choice and freedom 418–21 diversity 417–18 group autonomy 421–5 hate speech 425–6 multiculturalism 416 overview of 415–16 power-conferring rules 430 recognition 425–8 religious community 421–5 religious freedom 428–31 religious profession 430 Shah Bano case 357–8, 416, 429 voluntary power-conferring rules 430 Indian secularism Bharatiya Janata Party (BJP) 280 citizenship All India Muslim Personal Law Board 48 amendment of the Citizenship Act, 1955 50–51 Bangladeshi migrants 48–50 Citizenship Amendment Act, 2019 50 Illegal Migrants (Determination by Tribunal) Act 1983 (IMDT Act) 49 migrant subject 48–51 Muslim women and triple talaq 47–8 National Register of Citizens 50–51 Sonowal case 49 constitutional discourse 41 in constitutional law 42–4 Hindu Right 42–4 India as Hindu state 42 right to freedom of religion 43 legal narrative 44–6 Allahabad High Court 46

Hindu Right 44, 46 Hindu scriptures 44–5 Hindutva ideology 45 Indianization 45 land acquisitions 45 Rashtriya Swayamsevak Sangh organization 280 Indian Succession Act (1925) 430 Indian Young Lawyers Association v. the State of Kerala 234 Indigenous spiritualities Aboriginal expressions of spirituality 116 Aboriginal rights 115 Canada 114–17 cultural heritage 117 multi-layered constitutional framework 115 United States 114–17 individual dimension, religious freedom 98 individual rights path 387–91 institutional dimension, religious freedom 98 institutional secularism alternatives to 37–9 challenges 37–9 Enlightenment ideal of neutrality 29 ideological secularism vs. 27, 39 as modern western constitutionalism 27–9 Inter-American Commission on Human Rights (IACHR) 16, 341, 378 Inter-American Court of Human Rights 334, 341 International Center for Law and Religion Studies of Brigham Young University 340 International Commission of Jurists 342 International Covenant on Civil and Political Rights (ICCPR) 160, 287, 304, 322, 327, 330, 371 International Covenant on Economic, Social and Cultural Rights 328, 330 international human rights law, conscientious objection 373–6 International Religious Freedom Act 13 intra-religious (legal) factionalism 343–4 IR v JQ 315 Iranian Revolution (1979) 5, 60, 363 Irish Constitution blasphemy law 400–401 purpose of 404–7 case study crime elements 409 embarrassing nature of law 411–13 link to public morality 411–13 link with Pakistani law 410–11 overview of 407–8 substantively dangerous law 408–10 freedom of expression 401–4 law reform agencies 399

Index  441 public morality 401–4 Irish Defamation Act (1961) 399, 408 Irish Defamation Act (2009) 399, 407 Islam constitutionalism definition of 178 destructive view of 178 general principles of 178–9 political organization of state 178 purpose of 178 separation of powers 179 dependency trap 173 inclusive comparative perspective 172 post-colonial dependency 183 post-colonial state 180–182 Sharia 174–7 definition of 173 “lawyer’s law” aspects 177 Smith explanation of 174 Islam and Human Rights (Mayer) 397 Islam and the Foundations of Governance: A Study of the Caliphate and Government in Islam (Abd al-Rāziq) 65 Islamic civilization 10 Islamic constitutional jurisprudence 66 Islamic human rights schemes 398 Islamic integration in Europe Burka Commission 396 civic integration 385 discriminatory equilibrium 384 exemption claims 386 Islamist terrorism 385 legal-institutional point of view 383 legal-political dynamics 396–7 ostentatious religious symbols 396 parity claims collective recognition path 387, 391–4 individual rights path 387–91 political perspective 386 principle of liberal state neutrality 385 principle of practical concordance 395 restricted exemption claims 394–6 rights in Islam 397–8 taste-based discrimination 384 three-stage model of 396–7 trap of correct thinking 397–8 Islamic jurisprudence 175 Islamic Law and Constitution (Mawdūdī) 65 Islamic theology 174 Islamist terrorism 385 Islamophobia 11, 383 “Is Multiculturalism Bad for Women?” (Okin) 348, 352 Israel Basic Laws on human rights

Freedom of Occupation 209 Human Dignity 209 deprivatization of religion 208 establishment forms 213–17 authorization of religion 213, 214, 216, 217 Greek Orthodox Church 216 nationalization of religion 213, 214, 216 privatization of religion 213, 214 Rabbinical Courts Law 214 gender equality 367 as Jewish and democratic state 208 legislature and judiciary conflict 268 military conscientious objection 379 multiculturalism effects 217–20 public-private distinction 217–20 religion-state relations 209–13 Great Rabbinical Court 212 Orthodox Jewish religion 210 Orthodox Judaism 210 ultra-Orthodox community 211–13 Women’s Equal Rights Act 213 Zionist Orthodox community 211–13 religious nationalism 10 rights of citizens 208 semi-liberal constitutionalism 208 Western liberal democracy 18 as Western liberal democracy 208 Israeli Council for Higher Education 219 Israeli law 216 Italy English system of religion-state relations vs. 108–9 French model of secular state vs. 107 majority religion model 105–6 social cohesion 107 teaching of Catholicism 106 Jainism 232 Jakarta Charter 269 Jehovah’s Witness v. Commonwealth 229 Jobani, Yuval 367 Joppke, Christian 19 JP v Canada 374 Judaeo-Christian principles 403 Judaism 10, 26, 31, 38, 84 Juergensmeyer, Mark 12 Kamath, H.V. 223, 224 Kantian mode of reasoning 93 Kant, Immanuel 84 Kapur, Ratna 17 Keck, Margaret 334 Kemal, Namık 64 Kenyatta, Jomo 366

442  Constitutions and religion Kerala Hindu Places of Public Worship (Authorisation of Entry) Act (1965) 234 Khallāf, Abd al-Wahhāb 66 Khanwilkar, A.M. 234 Knorre, Boris 246 Kohl, Helmut 260 Kokkinakis v. Greece 287, 291–5 Koopmans, Ruud 383 Krasikov, Anatolij 246 Krishnamachari, T.T. 225 Kymlicka, Will 351 Laborde, Cecile 373 Ladele v. London Borough of Islington 109 laicidad 145 laïcité 30 in European model of religious freedom 104–5 civil religion 104 derive sectaires 104 national identity 105 neutrality of public institutions 105 Islam and French identity 52 Lautsi v Italy case 52 majoritarianism 53 Muslim French subjectivity 52 passive symbol 52 policy of cultural assimilation 51 Laitin, David 384 Lakshmanan, A.R. 230 Langan, John 329 Lang, Sabine 334 Latin American’s religious freedom Catholic Church colonial period 141 as historical and majority religion 140 independence of 143 as sovereign entity 140 Spanish 142 Catholic transformations 147–50 comparative constitutionalism 139 confessional constitutions 140–143 constitutional text of 139–40 liberal proposals for disestablishment 144–6 anticlericalism 145–6 conservative opposition 145 laicidad 145 modus vivendi 146 in nineteenth century 140–143 under regime of friendly cooperation 150–154 Lautsi v Italy 34, 52, 84, 294, 340 Law of Religious Associations (1991) 152 Law on Freedom of Conscience and Religious Associations (1997) 243, 244, 246 Lawrence v Texas 337

Law Society of British Columbia v. Trinity Western University 114 Le califat (al-Sanhūrī) 60, 65 Lee v. Weismann 125 legal pluralism 108 Leo XIII, Pope 147 lesbian, gay, bisexual and trans (LGBT) people conscientious objection 372 gender equality 368–9 human rights 333 lesbian, gay, bisexual, trans and intersex (LGBTI) people 155–6 LGBT see lesbian, gay, bisexual and trans (LGBT) people LGBTI see lesbian, gay, bisexual, trans and intersex (LGBTI) people liberal constitutionalism 21, 35 liberal society 383 Liberation Tigers of Tamil Eelam (LTTE) 204–5 Lieberman, Victor 191 Lisbon Treaty 308, 309, 314 Lithuanian Ministry of Foreign Affairs 52 Locke, John 80 Lonergan, Bernard 329 LTTE see Liberation Tigers of Tamil Eelam Luehrmann, Sonja 250 Lutheran Church of Denmark 240 Lyng v. Northwest Indian Cemetery 117 Madeley, John 239 Madras Hindu Religious and Charitable Endowment (HRCE) Act 226, 230 Mahmood, Saba 90, 91, 385 majority religion model 105–7 Malaviya, Govind 223 Malhotra, Indu 234 Mali, Muslim majority 162 Mancini, Susanna 19 mandala state, Buddhist constitutionalism ancient constitution 199 asymmetrical movement 198 contemporary constitutional theory 196 cosmic sovereignty 198 definition of Buddhist polity 197 galactic centre-oriented space 197 galactic sovereign par excellence 198 galaxy-type structure 196 Mauryan Empire 196 religious difference management 199 March, Andrew 17 Marsh v. Chambers 121 Martel, Charles 3 Marx, Karl 1 mass migration 6 Mauritania

Index  443 African constitution 164 equality and freedom from discrimination 165 Islamic Republic 166 Mauryan Empire 195–6 Mawdūdī, Abū’l-Aʿlā 60, 65 Mayer, Ann Elizabeth 397 MCC see Muslim Canadian Congress McCrea, Ronan 18 McCrudden, Christopher 363 Mellig, Louise 368 Memoirs of Hadrian (Yourcenar) 1 militant secularist model 30–31 millet-based model 36–7 minority religions model, official state religion with institutionalized tolerance 34–5 Minow, Martha 367 Misra, Dipak 234 Misra, Lokanath 224 Misra, R.B. 233 modern Islamic constitutionalism Council of Islamic Ideology 62 in Egypt 63 Federal Shariat Court 62 history of 59–60 injunctions of Islam 62 National Consultative Assembly Article 2 61 Article 15 61 Article 16 61 Article 17 61 paradigmatic features 62 in practice 60–64 principles of Islamic sharīʿa 63–4 sharīʿa authority 62 Supreme Constitutional Court 63 in Tunisia 72–3 Muslim democracy 73 political Islam 73 modern Islamic constitutionalism theory 64–72 caliphate of man 69 civil freedom 66 constitutional jurisprudence 66 jurists’ law vs. rulers’ law 72 Muslim umma 68 “People Who Loose and Bind” 71 policy-oriented lawmaking 70 principles of government 66 public liberties 66 Qurʾanic concept of consultation 70 religiously-legitimate governance 64, 66, 67 rules of governance 64 source of sovereignty 68 system of government 66 Western democratic theory vs. 69 modern western constitutionalism 27–9

Mohammed VI, King 261 Morsi, Mohamed 5 Mouvement laïque québécois v. Saguenay (City) 124 Mukherjea, B.K. 227, 230 multiculturalism as bad for women 352–4 Indian personal law systems 416 in Israel 217–20 Okin’s critique 352 multiple secularism 240 multi-religious model 107–9 Munshi, K.M. 223, 224 Murray, John Courtney 148 Muslim Brotherhood, Egypt 255 Muslim Canadian Congress (MCC) 344 Muslim Council of Canada 343 Muslim French subjectivity 52 Muslim personal law 418 Muslims against Sharia 343 M. v. H. 128 Nagarajan, Chitra 366 Napoleon I 30 Nathdwara Temple Act 228 nationalist parties 279–81 nationalization of religion 213, 214, 216 natural law, language of 8 natural rights 8 neo-confessionalism 151 neutrality of civil law 80 New Brunswick Broadcasting v. Nova Scotia 123 new natural law 329 NGOs see non-governmental organizations Nicaraguan Constitutions 152 Nicaraguan revolution (1979) 152 Niger, Muslim majority 162 non-European models of freedom of religion 99–103 non-governmental organizations (NGOs) 15 conservative religious groups 337 definition of 335 faith-based/religious/spiritual 335 human rights discourse and enforcement 334 “NGO-ization” of civil society 334 religiously affiliated 339 specialist 336 transnational advocacy networks 334–5 North American religious freedom see Canada; United States Nsereko, Daniel 160 Obasanjo, Olusegun 366 Obergefell v. Hodges 130 Occidentophobia 384

444  Constitutions and religion Office of International Religious Freedom 13 official state religion with institutionalized tolerance, minority religions model 34–5 OIC see Organisation of Islamic Cooperation Okin, Susan Moller 348, 352, 369 Ontario Court of Appeal 124–5 Freitag v. Penetanguishene (Town) 124 Ontario Family Law Act 129 Ontario Human Rights Act 119 Ontario Human Rights Commission v. Simpsons-Sears 119 Orban, Viktor 11 Organisation of Islamic Cooperation (OIC) 331 Orientalism (Said) 10 orientalist 172 Orissa Mining Corporation Ltd. v. Ministry of Environment and Forests 231 Orozco, Caleb 342 Orozco v Attorney General of Belize 342 Orthodox Christian association 249 Orthodox Church of Greece 240, 241 Orthodox Jewish community 36 Orthodox Jewish religion 210 Orthodox Judaism 210 Özal, Turgut 277 Ozzano, Luca 18 pacifism 28 Parliamentary Assembly of the Council of Europe 377 participatory constitution-making processes 257 Pasha, Khayr al-Dīn 64 Paul II, John 330 Peace of Westphalia 13 Pentecostalism 13 Perez, Nahshon 367 Persian constitutional revolution of 1906–11 59 personal law systems, India anti-Muslim/Christian agenda 426 choice and freedom 418–21 diversity 417–18 group autonomy 421–5 hate speech 425–6 multiculturalism 416 overview of 415–16 power-conferring rules 430 recognition 425–8 religious community 421–5 religious freedom 428–31 religious profession 430 Shah Bano case 416, 429 voluntary power-conferring rules 430 Peruvian Constitution (1978) 151 Pew Research Center Survey (2004) 154 Pezzi, Paolo 237

Pius VII, Pope 141 Pius IX, Pope 143 pluralism 292, 294 religious 6 sui generis concept 302–4 see also Indian personal law systems political hesychasm 249 political parties 254–5 role of religion 272, 273 political secularism 78–82 political secularism/state neutrality toward religion belief/conscience as object of right 86–7 individual as subject of right 83–5 source/justification of right 87 political sociology of religions 239 “The Political Theory of Islam” (Mawdūdī) 65 politicized Orthodoxy 249 Pompeo, Mike 8 Ponomariev, Alexander 247 populism, religious 9–12 post-colonial dependency 183 post-colonial state 180–182 Potikha, Vladimir 249 Prasad, Brajeshwar 223 principal constitutional models agnostic secularist model 31–3 confessional secular model 33–4 militant secularist model 30–31 millet-based model 36–7 official state religion with institutionalized tolerance for minority religions model 34–5 principle of liberal state neutrality 385 principle of neutrality 2 principle of practical concordance 395 principle of secularism 8 principle of state neutrality 302 privatization of religion 213, 214 progressive parties 278–9 Protestantism 23 Protestant Reformation 23 Protestants 23 Putin, Vladimir 237 Quebec Charter of Human Rights and Freedoms 124 Quebec Court of Appeal 124 Quebec Human Rights Tribunal 124 Rabbinical Courts Law 214 Race Relations Act (1976) 7 Radhakrishnan, Sarvepalli 223, 233 radicalization 12 Ramakrishna Mission 233

Index  445 Ramaswamy, K. 230 Rashtriya Swayamsevak Sangh organization 280 rationalization of religion 93 Rawls, John 6, 8, 28, 73 Reagan, Ronald 338 reasonable accommodation Amish community 118 Bouchard-Taylor Commission 118 Canada 117–20 conscientious objection 381 Hutterite community 120 relatively restrictive approach 324 Seventh-Day Adventist Church 118, 119 Title VII of 1964 Civil Rights Act 118 United States 117–20 US litigation 324 Redwood-French, Rebecca 188 regional human rights law, conscientious objection 376–8 religion communal dimension of 3 confinement of 2 in constitutional preambles 269–70 deprivatization of 22 destructive forces 9 as epiphenomenon 1 German institutionalization of 33 globalization of 12–15 privatization of 3 re-politicization of 5–9, 22 sociology of 1 Religion within the Boundaries of Mere Reason (Kant) 84 religious community 421–5 religious education 266 religious freedom constitution-making processes 264–6 Indian personal law systems 428–31 religious freedom as fundamental right civil enlightenment 80 denominational and religious neutrality 92 discursive tradition 77 Egyptian Administrative Court of Justice 76 European Commission on Human Rights 76 European Court of Human Rights (ECtHR) 75 Evangelical Lutheran Church 77 Kantian mode of reasoning 93 Kantian philosophy 82 political secularism/state neutrality toward religion 78–82 belief/conscience as object of right 86–7 individual as subject of right 83–5 source/justification of right 87 public and private spheres 82 religious group 77

religious institution 77 sacralization of reason 93 state neutrality toward religion 78–82 subjective belief 81 subjective conviction 80 U.K. Supreme Court 75–6 universal right/constitutional adjudication 88–93 double structure of right to religious freedom 93 forum externum and public order 91–3 forum internum as “rational religion” 89–91 U.S. Supreme Court 75 Western and non-Western divide 76–7 Religious Freedom Law (1992) 151 Religious Freedom Restoration Act (1993) 235 religious group 77 religious group autonomy 421–5 religious institutions 77 constitution-making processes 255–6 Religious Liberty Law (1994) 153 religiously affiliated NGOs 339 religiously legitimate governance 64, 66, 67 religiously oriented parties camp party 281–2 conservative parties 276–7 criteria 274 definition of 273–4 fundamentalist parties 274–6 nationalist parties 279–81 progressive parties 278–9 typology of 284 religious minorities 256–7 religious nationalism 9–12 Hungary 11 Israel 10 Russia 10 religious parties negative view of 272 Rosenblum definition of 272 secularization paradigm 272 Yavuz definition of 272–3 religious pluralism 6 religious populism 9–12 religious vs. secular character of state and status of religious law 263–4 repoliticization of religion 5–9, 22 revisionist approach 329–30 Revolutionary Constitution of Mexico (1917) 146 Reynolds v. United States 235 Ripoll, Julieta Lemaitre 17 Riḍā Rashīd 60, 65 Rājasinha, Śrī Vikrama 200 ROC see Russian Orthodox Church

446  Constitutions and religion Rodriguez v. British Columbia (Attorney General) 132 Roman Catholic Church 412 Roman Catholic practices 412 Rorive, Isabelle 19 Rosenblum, Nancy 272 Rosenfeld, Michel 17 Roy, Olivier 12, 398 Rubinstein, Ariel 268 Rushdie, Salman 76 Russia centralized religious organizations 244 culture wars 248 deficient model of selective cooperation 18 foreign agents law 245 laws on religious freedom and traditional religions 243–5 local religious organizations 244 religion-state relations model disestablishment model 238–42 political sociology of religions 239 selective cooperation model 238–42 state church model 238–42 religious groups 243 religious nationalism 10 religious organizations 243 Yarovaya Laws 244 Russian Orthodox Church (ROC) 10, 14, 238, 243–50, 332, 333 as antagonist of the state 248–50 as exclusive partner of the state and representative of the majority of Russian people 246–7 as multifaceted, multivocal 251 as one public religion among others and worthy of recognition of equal rights 248 Social Doctrine of 248, 249 Russian Orthodox Metropolitan Kirill 332 Russian Orthodox symphony 246 R(E) v. Governing Body of JFS 7, 75, 109 sacralization of reason 93 Sahin v Turkey 92, 292, 297, 361 Said, Edward 10 Sajó, András 18 Salafists 267 Salvation Army 244 Sarkozy, Nicolas 55, 396 SAS v France 57, 361 Saxena, S.L. 223 Sayadaw, Sitagu (monk) 205 Schwedler, Jillian 275 A Secular Age (Taylor) 83 secular humanism 37 secularism

Christian foundation of 27 confessional 34 constitutional 2 democratic 319 ideological 27 institutional 27–9 non-Western model of 17 political 78–82 Western concept of 3, 4, 23–7 Western model of 17 secularization paradigm 272 selective cooperation model religion-state relations 238–42 Russian Orthodox Church 248 Senegal, consortium of Islamic associations 162 Senegalese Constitution (2016) 166 Seneviratne, H.L. 191 Senghor, Léopold Sédar 262 Sen, Ronojoy 18 Sequoyah v. Tennessee Valley Authority 116 Seventh-Day Adventist Church 118, 119 sexual and reproductive rights 8 Shah, K.T. 223 Shankar, Shylashri 235 Sharia definition of 173 Islam and 174–7 “lawyer’s law” aspects 177 Smith explanation of 174 Sheppard, Colleen 117 Sherbert v. Verner 118 Shintoism 4 Shri Govindlalji v. State of Rajasthan 228 Sikhism 232 Sikkink, Kathryn 334 Sinhalese Buddhist modernism 201 Sitnikov, Alexey 246 Slovak Constitutional Court 339 Smith, Wilfred Candwell 173 Society for the Aid of the Buddhist Doctrine 202 Somalia, Provisional Constitution 2012, Article 2 of 162 South African Constitution 1996, Section 36(1) of 166 Spanish Catholic Church 142 Special Marriage Act (1954) 419, 429, 430 SPUC v Grogan 310 Sri Aurobindo 233 Stachursky, Benjamin 335 state church model in Europe 240 Madeley and 240 religion-state relations 238–42 Russian Orthodox Church 246–7 state neutrality toward religion 78–82

Index  447 state vs. religion, principal constitutional models agnostic secularist model 31–3 confessional secular model 33–4 militant secularist model 30–31 millet-based model 36–7 official state religion with institutionalized tolerance for minority religions model 34–5 Stepan, Alfred 240 Stewart-Fox, Martin 197 Stoeckl, Kristina 18 Stopler, Gila 18 structurally gendered citizenship 2 Sudan Christianity 163 Interim Constitution 2005 163, 168 sui generis concept consequences of 304–5 pluralism management 302–4 Sullivan, Winnifred Fallers 86, 235 supranational processes 260 surrogate theodicy 10 Tambiah, Stanley 191 Tandon, Purshottamdas 224 taste-based discrimination 384 Taylor, Charles 4, 83 Teles, Steven 338 Thailand, Buddhist constitutionalism 186 Title VII of 1964 Civil Rights Act 118 Title VII of the federal Civil Rights Act (1964) 324 top-down process, constitution-making processes 259–60 transnational advocacy networks 334–5 transnational NGO litigation 339–42 transnational religious actors 15 Tripathi, P.K. 228 triple talaq 47–8 Trump, Donald 351 Tunisia equality and freedom from discrimination 165 modern Islamic constitutionalism 72–3 Muslim democracy 73 political Islam 73 Turkish Civil Code (1926) 364 Turkish Justice and Development Party (AKP) 10, 364–5 UDHR see Universal Declaration of Human Rights Uitz, Renáta 18 U.K. Supreme Court 7, 75–6 ultra-Orthodox community 211–13, 219–20 Umayyad dynasty 175

UNHRC see United Nations Human Rights Committee United Belize Advocacy Movement 342 United Mizrahi Bank v. Migdal Cooperative Village 268 United Nations Commission on Human Rights 376 United Nations Conventions and Covenants see separate entries throughout United Nations Human Rights Committee (UNHRC) 374–6, 378, 405 United Nations Human Rights Committee Resolutions 328 United Nations Human Rights Council 14, 333 United States end-of-life decisions 131–7 legal contours of religion and religious beliefs 113 marriage 126–31 religious diversity 111 religious prayers in political institutions 121–5 in public institutions 120–121 in public schools 125–6 transversal frameworks Indigenous spiritualities 114–17 reasonable accommodation 117–20 United States v. Windsor 130 Unique Cultural Educational Institutions Act 219 Universal Declaration of Human Rights (UDHR) 160, 275, 287, 322, 330, 371 universality thesis 78 universal right/constitutional adjudication 88–93 forum externum and public order 91–3 forum internum as “rational religion” 89–91 US-based conservative NGOs 341 US Commission on International Religious Freedoms 410 US conservative religious legal network 16, 338 U.S. Constitution’s Establishment Clause 3, 25 U.S. Democratic Party 278 U.S. Republican Party 276 U.S. Supreme Court ministerial exception 75 outward physical act 75 Utmân, Utmân Khalîl 263 Valfort, Marie-Anne 384 Venice Commission 258 Vietnam War 371 Wallace v. Jaffe 125 Weber, Max 1, 188 Weimar Constitution (1919) 33 Western concept of secularism 3, 4 intellectual Christian origins 23–7

448  Constitutions and religion western constitutionalism 27–9 Western model of secular modernity 5 Western modernity 3–4 Westphalian system 13 Wickramasinghe, Nira 202 Wintemute, Robert 373 Wisconsin v. Yoder 118, 235 Women’s Equal Rights Act 213, 218 women’s rights vs. minority religions coexisting, comprising and converging 354–7 impact of 363–9 multiculturalism 352–4 overview of 351–2 religious rights 354–7 World Council of Churches 291

X v Austria 340 Yagnapurushdasji v. Muldas 231 Yarovaya, Irina 244 Yavuz, M. Hakan 272 Yoon et al v Republic of Korea 375 Young Men’s Buddhist Association 205 Yourcenar, Marguerite 1 Yussuf, Mohammed 367 Yuval-Davis, Nira 347, 364 Zambia Christianity 162 equality and freedom from discrimination 165 Zionist Orthodox community 211–13, 219–20 Zylberberg v. Sudbury Board of Education 126